NJCX and Comcare (Compensation) [2024] AATA 1560 (7 June 2024)

Last Updated: 12 June 2024

NJCX and Comcare (Compensation) [2024] AATA 1560 (7 June 2024)

DIVISION: GENERAL DIVISION

File Number: 2020/6640

Re: NJCX

APPLICANT

And Comcare

RESPONDENT

DECISION

Tribunal: Mr S. Webb, Member

Date: 7 June 2024

Place: Canberra

The decision under review is affirmed.

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

Mr S. Webb, Member

Catchwords

WORKERS COMPENSATION – compensation claim – employment by licensee in senior management position – probationary period – history of psychiatric disorders – depression and anxiety – ‘ailment’ – multifactorial stressors – allegations of workplace bullying, harassment and unfair treatment ‑– work stress – interpersonal tensions – performance issues – summary termination of employment – ‘disease’ threshold – meaning of ‘significant degree’ – allegation of contemporaneous symptoms not independently corroborated – termination of employment contributed to ailment to a significant degree – ‘disease’ resulted from reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment – wilful and false representation – exclusion from ‘injury’ applies – decision affirmed

JURISDICTION – scope of compensation claim – construction of claim – conjunctive description of condition under claim partially obscured – claim to be construed broadly on basis of accompanying documents – second condition under claim capable of determination by Comcare ‑– power of decision maker to determine liability for all claimed conditions able to be exercised by reconsideration decision maker ‑– Tribunal has jurisdiction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14, 53, 54, 60, 61, 62, 64

Safety, Rehabilitation and Compensation Regulations 2019 (Cth) ss 11A

Cases

Abrahams v Comcare [2006] FCA 1829

Comcare v Drinkwater [2018] FCAFC 62

Comcare v Lofts [2013] FCA 1197

Comcare v Martin [2016] HCA 43

Comcare v Mooi [1996] FCA 1587

Comcare v Stewart [2019] FCA 365

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Frosch v Comcare [2004] FCA 1642

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

Fuad and Telstra Corp Ltd [2004] AATA 1182

Griffiths v Australian Postal Corporation [2018] FCA 520

Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

National Bank of Australia v Georgioulas [2013] FCA 1412

Telstra Corporation Ltd v Kotevski [2013] FCA 27

Wuth v Comcare [2022] FCAFC 42

REASONS FOR DECISION

Mr S. Webb, Member


5 June 2024

1. The Applicant, NJCX, lodged a claim for compensation in respect of an alleged psychological injury in employment by the Australian Rail Track Corporation (ARTC). NJCX alleges the claimed injury resulted from circumstances in the ARTC employment, including alleged harassment, bullying, unfair treatment, lack of resources and supports, sudden termination of the employment and the manner in which the termination was undertaken. Comcare rejected the claim by primary determination and on reconsideration. NJCX applied for review of this decision by the Tribunal.
2. The application has been attended by unfortunate delays, partly due to NJCX’s circumstances and lack of legal representation. I recognise the difficulties a person faces when representing themselves in proceedings of this kind without a detailed knowledge of the applicable procedures, law or Tribunal processes. No doubt these difficulties are sharpened by stress associated with the proceedings as well as language issues and perceived unfairness in the context of mental illness.
3. A great deal of latitude has been allowed for this reason to ensure NJCX has a reasonable opportunity to present their case: to ask questions, to adduce and test relevant evidence, and to make submissions. The assistance helpfully given in this regard by Ms Bortone, counsel for Comcare, is noted.

Facts

4. The following findings are made on the evidence, applying the reasonable satisfaction standard.
5. In 1978, NJCX was born in Poland.
6. In 2002 and 2003, NJCX obtained tertiary qualifications in engineering and international supply chain management.^[1]
7. Subsequently, NJCX obtained employment in procurement. From 2004 to 2006, NJCX was employed by KLB Group as a Purchasing Consultant. From 2006 to 2010, NJCX worked for McKinsey and Company as an Associate. From 2010 to 2011, NJCX was employed by Kurt Salmon Associates in the role of Manager.^[2] On 10 May 2011, NJCX was offered employment in Sydney by Accenture in the role of Manager in the Global Markets and Management Consulting Growth Platform.^[3]
8. In June 2011, NJCX entered Australia under a Temporary Work (Skilled) 457 visa sponsored by Accenture. NJCX signed a contract of employment with Accenture on 18 July 2011.^[4]
9. NJCX gave evidence of experiencing difficulties with a senior manager in that employment. On 14 January 2013, NJCX consulted Dr Sue Rowley (then treating general practitioner). Dr Rowley noted NJCX was very stressed as a Project Leader/”15 hour days etc’ self Rx – Panadol only.^[5] NJCX was certified unfit for work from 30 September 2013.^[6]
10. NJCX was referred by Dr Rowley to Dr Joseph Dunn, a consultant psychiatrist. Dr Dunn was not called to give oral evidence. It appears Dr Rowley recommended consideration be given to hospitalisation for NJCX. NJCX initially consulted Dr Dunn on 1 and 8 October 2013, and from time to time thereafter. On 10 October 2013, Dr Dunn reported:

    [NJCX] recalls having seen either a psychologist or a psychiatrist in Paris 7 years ago at the end of a problematic relationship. [NJCX] does not recall having being [sic] prescribed any medications at that time.

    ...

    [NJCX] identified with symptoms of anxiety and anger. [NJCX] was not so convinced that [NJCX] was experiencing symptoms of depression, and seemed to be reasonably euthymic, although clearly troubled and offended, in the mental state examination. When I asked [NJCX] to complete the BECK depression inventory, however, [NJCX] seems to have become lost in the fine detail of that and find it difficult to accurately respond perhaps that was a manifestation of some obsessional personality traits.

    ...

    ... I have still failed to obtain from [NJCX] a clear personal and developmental history. [NJCX] relates, quite notably, in an intense way. I do not, however, think [NJCX] is overtly depressed...

    I noted, however, that there were a few passing comments that concerned me about whether [NJCX] was tipping into a paranoid psychotic state. [NJCX] spoke, for example, about [their] experience of “indirect psychological pressure” to leave the company and some interactions that appeared to have a “hidden meaning”. When I tried to pursue a further investigation of whether [NJCX] had actually tipped into a paranoid psychotic state, however, I could not establish evidence of this.

    At the heart of it, therefore, [NJCX] probably attracts a “default” diagnosis of a chronic adjustment disorder. I do not think, however, that [NJCX’s] psychiatric diagnostic formulations account well for patients who present in this way. Beneath any anxiety are their most powerful driving emotions which are a combination of anger and helpless injustice....

    Patients who present like this will often spend time and energy trying to get a vindication or “proof” of their victimhood....

    ...

    I do not think that any psychotropic medication is indicated at present but I would be happy to review that impression as time unfolds, particularly if evidence emerges either of a significant depressive or psychotic state...^[7]

11. In a subsequent report on 12 November 2013, Dr Dunn reported trialling Mirtazapine and Olanzapine treatment, and he had offered a brief phase of hospitalisation, which NJCX declined.^[8]
12. On 13 February 2014, NJCX came to terms with Accenture which included no admissions of liability, the cessation of NJCX’s employment on 30 November 2013, payment of sums in settlement of NJCX’s claims and entitlements, and release of Accenture from ‘all actions, suits, causes of action, claims and demands’ by NJCX and liabilities relating to NJCX’s employment.^[9]
13. On 15 April 2014, NJCX was offered and accepted employment by QBE Management Services Pty Ltd (QBE) in the role of Manager, Indirect Procurement – Group Operational Transformation.^[10] NJCX gave evidence that this employment commenced in June 2014. Later in 2014, NJCX travelled overseas to visit their father who was unwell and later died in the early part of 2015. NJCX returned to work in Australia. NJCX gave oral evidence of possibly being unwell from June 2015.
14. On 16 July 2015, Dr James Barling (NJCX’s then treating general practitioner) referred NJCX to Dr Dunn for assessment of NJCX’s mental state and alcohol abuse which has exacerbated in the breakdown of [NJCX’s] relationship in November 2014 and the subsequent terminal illness of [NJCX’s] father in Poland.^[11]
15. Dr Dunn provided Dr Barling a report, incorrectly dated 3 June 2014, in which he stated:

    [NJCX] has phases of reasonably intense anxiety, one of which resulted in a fairly protracted hospitalisation when [NJCX] returned to Poland last year. I do not think, at present, [NJCX] warrants any particular psychiatric diagnosis and, as you pointed out in your letter of referral, [NJCX] uses a reasonably small dosage of Olanzapine on an “as required” basis if [NJCX] is particularly agitated. [NJCX] needs to use that medication only every two or three weeks. [NJCX] does not appear to be depressed and, in fact, [NJCX’s] mood is quite labile.

    ...

    I shall now wait to see when and whether [NJCX] pops up in my practice again. If [NJCX] runs true to form, I will see [NJCX] at any time within the next 1-12 months.^[12]

16. NJCX took extended periods of absence from employment. NJCX was admitted to the Northside Hospital and was certified unfit for work on 1 October 2015.^[13]
17. On 17 October 2015, Dr Dunn produced a report addressing questions put to him by QBE. He reported:

    I must acknowledge that it has been rather difficult to apply diagnostic labels for most of the consultations [NJCX] has had with me. In general, [NJCX] appears to have experienced symptoms of both anxiety and depression, but usually as a reaction to stressful life events. Those conditions would, therefore, be best diagnosed using psychiatric terminology as adjustment disorders although they have long since resolved.... More recently, [NJCX] has been drinking excessively and I suppose that a diagnosis of alcohol use disorder would apply, although I am pleased that this is now in early remission.

    ...

    ...I do not think [NJCX] has a serious or incapacitating psychiatric condition, particularly if [NJCX] continues to co-operate with psychiatric treatment and continues to manage the stressor in [NJCX’s] life.

    ...

    Question 3 ask about whether the condition is temporary or permanent. I think that it is temporary provided [NJCX] does not reveal a pattern of recurrent relapse. Such a pattern is not evident at this time.^[14]

18. On 3 November 2015, Dr Dunn prescribed Lexapro (an anti-depressant medication).^[15]
19. On 1 December 2015, NJCX’s erratic behaviour at work was noted by the Head of Group Procurement, Chris Heptinstall, and this was attributed, in part at least, to an Alcohol Use Disorder.^[16] NJCX was asked by Mr Heptinstall to take extended leave on full pay until the second week in January 2016.^[17]
20. On 19 January 2016, NJCX consulted Dr Barling who recorded the reason for the consultation was Anxiety/Depression and Alcoholism. The doctor issued a prescription for Cymbalta and noted:

    Has been having treatment for alcoholism and depression/anxiety/panic attacks

    Feeling better.^[18]

21. Also on 19 January 2016, NJCX consulted Dr Dunn. The doctor noted NJCX’s alcohol dependence was in remission, but some denial still, ^[19] and:

22. On 25 January 2016, lawyers representing NJCX wrote to QBE, alleging constructive dismissal and discrimination by QBE and proposing terms of settlement. In this context statements were made in respect of NJCX’s mental health, including:

    2.1. Our client had approximately 6 weeks’ sick leave in 2015, in three separate periods as a result of depression and anxiety.

    ...

    2.4. Our client ... notes in particular:

    (a) [their] condition has effectively resolved due to therapy,

    (b) [their] anti-depressant and anti-anxiety medications have now reached therapeutic levels; and

    (c) [their] alcohol abuse ... has resolved as a result of [NJCX’s] mental health improving.^[20]

23. On 9 February 2016, NJCX consulted Dr Dunn who noted:

    │Cymbalta ... - good calming Fx – and a/depr Fx

    H/e │ a/depr in Poland – no Fx

    H/e │ ײ given by me but poor compl^[21]

24. On 11 February 2016, NJCX and QBE settled terms of agreement covering the termination of NJCX’s employment. The terms provided for payment of an amount in settlement and return of QBE property by NJCX. Disputation ensued in respect of a further claim for payment by NJCX, the return of QBE property and repayment of monies resulting from NJCX using a corporate credit card for personal expenses.
25. On 22 November 2016, NJCX consulted Dr Barling, who noted “‘good’- needs more Cymbalta bd”.^[22] Dr Barling and Dr Tsironis (another general practitioner in the same practice) continued to prescribe Cymbalta to 7 November 2016.^[23]
26. In or about August 2017, NJCX obtained temporary employment with Newcastle Permanent Building Society (Newcastle Permanent) in the role of Manager, Procurement and Stores .^[24] I understand this employment lasted for approximately 6 months.^[25]
27. On 3 November 2017, NJCX first consulted Dr Ian Jeffrey (a general practitioner). The clinical notes from this consultation record NJCX requested Cymbalta. Dr Jeffrey noted “Requests Cymbalta. Mood stable.” The doctor prescribed Cymbalta 60mg – 2 capsules to be taken each morning.^[26] The doctor’s notes reveal NJCX discussed reproductive issues and trying for a baby with NJCX’s partner ‘BB’. BB was not called to give evidence.
28. On 8 January 2018, NJCX again consulted Dr Jeffrey. Dr Jeffrey’s notes include:

    2. 4. Feeling a little stressed. Partner ... drinking too much. Admits to being a perfectionist, finds it tough when others make mistakes at work. Applying for permanent visa. Feels Cymbalta 120mg per day is helping. Agreed r/v if stress not settling.^[27]

29. In or about March 2018, NJCX’s temporary employment by Newcastle Permanent ended.
30. On 29 March 2018, NJCX was given information by HAYS Recruitment (a recruitment agency with whom NJCX was registered) (Hays) in respect of two potential positions in ARTC, namely Procurement Transformation Program Manager and Major Tender Manager.^[28] NJCX expressed interest in these positions.
31. On 6 April 2018, NJCX attended an interview with Mr Ian McDonald, ARTC’s General Manager of Procurement and Contracts. Mr McDonald gave evidence ARTC’s usual practice was for two people to conduct interviews but his co-interviewer, Mr Mark Grant, ARTC’s then Manager, Procurement and Contracts, was unavailable on the day of the interview.
32. In a letter dated 4 May 2018, ARTC offered NJCX employment in the role of Major Tender Manager,^[29] commencing on 14 May 2018 and attaching a Position Description for the Major Tender Manager position.^[30] The Position Description sets out responsibilities, accountabilities, key communications, competencies and selection criteria, as well as the primary objective and position dimensions of the position:

    PRIMARY OBJECTIVE

    To provide commercial contractual guidance and support in the development and delivery of major tenders ensuring fastidious governance and integrity of tenders and contracts within the position dimensions protecting reputation and reducing risk to the Corporation whilst delivering value for money solutions in accordance with ARTC policy and procedure.

    POSITION DIMENSIONS

    Contract Values: $150 million Category Panels

    $50 million Projects plus major Capital

    Category of Contracts: Commonwealth Funded and Contracts generally over $5 million

    (Excludes Inland Rail) ^[31]

33. The ARTC offer of employment set out Standard Terms and Conditions of Employment and information in respect of remuneration, hours and applicable policies. The offer of employment was subject to a probationary period:

    The employment is offered subject to a six month probationary period from your commencement date. Mutual suitability will be determined during this period and, if appropriate a permanent appointment may be offer on its completion. At any time during the probationary period the contract of employment may be terminated by either party by the giving of one week’s notice orally or in writing or by the Company paying you one week’s salary in lieu of notice.^[32]

34. On 7 May 2018, NJCX accepted the offer of employment and signed the letter of offer, the Standard Terms and Conditions of Employment and the Position Description.
35. NJCX commenced employment in the Major Tender Manager position on or about 14 May 2018. In this role, NJCX was responsible for two key areas: Major Tenders and projects; and Panels and Capital Projects. NJCX managed a team with two reports, AH and ET (who were not called to give oral evidence), and interacted with other senior ARTC employees, including Mr Grant, as well as clients and stakeholders.
36. On commencement, NJCX met with Mr McDonald and reviewed the ARTC Procurement Manual (Manual). NJCX arranged regular weekly ‘catch-up’ meetings with Mr McDonald. These began on 29 May 2018, after Mr McDonald returned from a period of leave. Mr Grant was absent on leave when NJCX commenced. It was not until the end of May that NJCX met Mr Grant.
37. On 14 June 2018, NJCX consulted Dr Jeffrey about a specialist referral and reproductive issues with BB. Dr Jeffrey noted:

    Enjoying new work -Major Tender Manager at ARTC

    ...

    Discussed partner [BB’s] drug and alcohol problems.

    ...

    Also discussed potential risks of cymbalta...

    ...

    Prescription printed: Cymbalta 60mg Capsule 2 in the morning.^[33]

38. On 15 June 2018, NJCX attended a ‘Framework Introduction’ to the Manual.
39. As will appear, issues arose in NJCX’s role as Major Tender Manager, including in respect of resources, responsibilities and procedures, and in NJCX’s interactions with Mr Grant particularly relating to the management of Major Projects and the scope of NJCX’s role in respect of Business As Usual (BAU) projects, resources and responsibilities.^[34]
40. On 31 July 2018, NJCX met with Ms Turner from Hays. NJCX stated:

    89. During the course of this meeting, Ms Turner said:

    “ARTC is very satisfied with your work. It has paid already all recruitment fees to HAYS.”

    90. I also recall that during this meeting Ms Turner said:

    “How are you settling into the organisation?”

    I said:

    “Things are going well with [Mr McDonald] and I believe we can work well together. However, I am experiencing some issues with my colleague [Mr] Grant and his behaviour towards me. It seems to me that [he] is trying to make my work more difficult. I assume this is because he is unhappy that [Mr McDonald] excluded him from the PTP tender and asked me to manage it instead.”^[35]

41. On or about 1 August 2018, Mr McDonald invited NJCX to attend a performance review meeting on 10 August 2018 and provided a ‘Performance Discussion document’ containing a series of questions for NJCX to address. There is a dispute about what occurred in the lead up to this meeting, which NJCX did not attend. NJCX asserts Mr McDonald cancelled the performance review meeting during their weekly catch-up meeting on 9 August 2018, and alleges this was confirmed on 10 August 2018 with his personal assistant, EV. Mr McDonald contends this did not occur and, without notice, NJCX did not attend the performance review meeting. He asserts EV would have removed the meeting from his calendar if it had been cancelled, and this did not occur. EV was not called to give evidence.
42. On 12 September 2018, NJCX attended an Advanced Training session. NJCX arrived late to the session. NJCX asked questions which Mr McDonald considered should be dealt with out of session, “off-line”.^[36] The following day, on 13 September 2018, Mr McDonald raised concerns about NJCX’s questions. Even though NJCX and Mr McDonald have different recollections of what was discussed in this meeting, I am satisfied it is probable Mr McDonald expressed disappointment about NJCX’s tardiness and lack of knowledge and discussed NJCX’s “need to improve in the role and deliver more against the stated objectives”.^[37]
43. On 14 September 2018, NJCX met with Mr McDonald to discuss NJCX’s performance objectives. Mr McDonald gave NJCX a document setting out performance objectives for 2018-2019. NJCX considered that the objectives did not align with the position description for the Major Tender Manager. This notwithstanding, NJCX subsequently signed off the performance objectives and provided the document to Mr McDonald on 24 September 2018.
44. On 20 September 2018, NJCX consulted Dr Jeffrey in respect of concerns about reproductive issues. The doctor noted:

    Major Tender Manager at ARTC...

    ...

    Has been having relationship counselling with [BB].

    To continue Cymbalta

    r/v if any further concerns.

    ...

    Prescription printed: Cymbalta 60mg Capsule 2 in the morning.^[38]

45. On 20 September 2018, NJCX sent an email to Mr McDonald, in respect of which NJCX stated:

    I outlined my suspicions and concerns that ARTC was excluding the Procurement and Contracts Department from involvement in larger strategic, valuable and business-related procurement strategies. I flagged my suspicions because I was becoming increasingly concerned that the change in organisational structure was preventing me from carrying out the primary (and most valuable) aspects of my role. I had planned to follow up with Mr McDonald about this issue the following week.^[39]

46. Mr McDonald asserts, on or about 24 September 2018, he spoke with NJCX and “provided feedback” in respect of concerns about NJCX’s “support for other stakeholders and understanding of processes”.^[40]
47. On 4 October 2018, NJCX attended a management meeting in which the ARTC Code of Conduct and formal avenues for complaints about bullying or similar behaviour were discussed. Mr McDonald stated he did not receive any complaints of this nature from NJCX.
48. On 5 October 2018, NJCX was scheduled to attend a ‘standing’ meeting with Mr McDonald, Mr Grant and other employees. NJCX joined the meeting after it had begun. NJCX stated the meeting began before the scheduled start time without notice and:

    This incident made me feel like I did not belong in the team and that I was intentionally being excluded from team meetings.^[41]

49. On or about 10 October 2018, Mr McDonald met with Kylie Gallasch, Mr McDonald’s superior in Group Executive Corporate Services, and discussed his concerns about NJCX’s performance.^[42] On Mr McDonald’s evidence, subsequent discussions ensued about terminating NJCX’s employment.
50. On 10 and 11 October 2018, NJCX was absent from work on personal leave which was approved by Mr McDonald. NJCX’s recovery and absence from work extended to 12 October 2018.
51. On 15 October 2018, NJCX returned to work and met with Mr McDonald. In this meeting, Mr McDonald provided critical feedback in respect of a draft paper NJCX prepared for the ARTC Business Investment Committee. Mr McDonald approved NJCX’s further leave requests in respect of 12 October 2018 and a period over the 2018-2019 Christmas and New Year period during which NJCX was planning a holiday in Europe.
52. Later, on 15 October 2018, NJCX attended a weekly ‘catch-up’ meeting with Mr McDonald in which matters relating to NJCX’s role, performance and issues relating to Mr Grant were discussed.^[43] NJCX stated:

    I note that this meeting was the first time that I had received any form of negative feedback regarding my work performance. Furthermore, although during this meeting Mr McDonald claimed that based on stakeholder feedback I “was not adding value to the business”, at no time during the meeting was I specifically informed that my work performance was unsatisfactory or that my employment with ARTC was under threat.^[44]

53. Mr McDonald scheduled a further meeting at 4.00pm on 18 October 2018 to discuss NJCX’s “Role clarity – performance”.
54. Also on 15 October 2018, Mr McDonald signed a “Business Case Submission” dated 11 October 2018, recommending termination of NJCX’s employment on unsatisfactory performance grounds to take effect on 18 October 2018, within NJCX’s probationary period.^[45] Ms Gallasch approved this recommendation.^[46]
55. On 17 October 2018, NJCX was informed of personnel changes to the Tender Evaluation Facilitator role and the Tender Evaluation Committee in respect of a Signalling Crossovers tender for the North East Rail Link: NJCX was no longer Facilitator and was not included as a member of this Committee. On Mr McDonald’s evidence this was not unusual as personnel changes frequently occur, and it was not related to NJCX’s performance.
56. On 18 October 2018, NJCX sent an email to Mr McDonald, asking whether any preparation was required for the “Role clarity - performance” meeting scheduled at 4.00pm that afternoon. Mr McDonald did not reply. NJCX attended the 4.00pm meeting with Mr McDonald.^[47] The meeting was conducted in the ARTC Boardroom rather than in Mr McDonald’s office. An ARTC HR representative attended the meeting by video. Mr McDonald read out and handed NJCX a letter of employment termination. NJCX stated:

    I was shocked when I heard this, as I had not been informed by Mr McDonald or anyone else within ARTC that my work performance was unsatisfactory, or that my employment with ARTC was under threat (including during the meeting on 15 October 2018).^[48]

57. NJCX was informed “Your employment will conclude today and you will receive one week pay”. The meeting ended and Mr McDonald escorted NJCX to collect NJCX’s belongings, whereupon NJCX left the ARTC premises.
58. The “Termination of employment during probationary period” letter included the following:

    It is the view of ARTC that despite the support and guidance provided, you have not been able to meet the required level of performance associated with this senior role.

    Consequently, ARTC has decided to terminate your employment within the probationary period. This will take effect immediately.

    You will be paid one week’s pay in lieu of notice, in addition to any accrued annual leave entitlements that may be owed.^[49]

59. On 22 October 2018, NJCX consulted Dr Jeffrey, who noted:

    Feeling low.

    Probation contract at work was not renewed last week.

    Feels this is unfair- has taken legal advice and will lodge appeal

    Increased anxiety.

    Requests diazepam. Counselled on use.

    r/v if further concerns

    Reason for visit:

    Stress

    Actions:

    Prescription printed: Diazepam 5mg tablet Three time a day p.r.n. for anxiety.^[50]

60. On 8 November 2018, NJCX consulted Dr Jeffrey. The doctor’s clinical notes include:

    Feeling is not coping. Anxious. Probation contract at work was not renewed a few weeks ago. Major Tender Manager at ARTC...

    Last worked 18^th Oct 18. Feels this is unfair- has taken legal advice and will lodge appeal.

    Cannot see why they chose not to renew [NJCX’s] contract. [NJCX] thought [their] performance at work as fine. Felt was bullied at work. Taking 120mg Cymbalta daily. 5mg diazepam occasionally for anxiety. Smokes 20/day. No alcohol...^[51]

61. Dr Jeffrey’s notes of a further consultation with NJCX on 13 November 2018,^[52] shortly before NJCX and BB took an overseas holiday, do not refer to NJCX experiencing mental health concerns or symptoms.
62. In or about December 2018, NJCX commenced proceedings against ARTC in the Fair Work Commission under the Fair Work Act 2009. Matters progressed to the Federal Circuit Court. On or about 21 March 2020, the proceedings were resolved by agreement between NJCX and ARTC.
63. On 14 December 2018, NJCX commenced psychological treatment at the Hummingbird Centre.^[53] The clinician recorded:

    Not coping- lost job, bullying at work and Fair Work commission involved with work related matter

    Some current stress with finances/ family situation- current partner...

    [NJCX] explained current concerns were related to [NJCX’s] work and current family situation.

    ...

64. NJCX completed an Adult Background Information and Questionnaire in which NJCX described ‘the concern that you wish to address in therapy’ in 4 paragraphs, spanning more than 2 pages of text.^[54] All but the first paragraph refers to NJCX’s relationship issues with BB. The first paragraph is in the following terms:

    The key issue is that I was bullied and manipulated and wrongly treated at work and then dismissed based on unfairly and based on reasons which are not the truth after over 5 months of work and 3-weeks before the end of my 6-months’ probation period. I took this ex-employer to Fair Work Commission proceedings (adverse action) and just went through the conciliation conference with the Fair Work Commissioner without any resolution. Mr ex-employer is still cheating and not acknowledging any truthful allegations/ claims towards their behaviour and even write and provide even to FWC Commission and is not taking any responsibility. I will need to proceed to the Federal Circuit Court and it all stresses me to an extraordinary level, especially because it will cost really a lot and I don’t know how I am going to manage. It is all causing me a very high level of anxiety, I am waking up being ‘scared’, I am losing any motivation to do whatsoever. I am feeling completely unpowered and I lose hope in ‘justice’ and that ‘justice’ will be given. I am even scared to apply for any other work as or it is far below my skillset and then I am scared to be very unhappy and diminish myself; or I am scared to have questions about my ex-employer and not be able to answer them as saying that I left during the probation period doesn’t sound right to HR people.^[55]

65. On 17 December 2018, NJCX was admitted to the Calvary Mater Hospital. The admission notes record:

    OD, taken 50 10mg tablets over a period of 24 hours intentionally. No suicidal intent. Background of low mood secondary to several social stressors. Had been taking Diazepam 5mg per day since [NJCX] lost [NJCX’s] job two months ago.^[56]

66. NJCX was discharged from the hospital on 18 December 2018. Dr Lele a psychiatry registrar at the Calvary Mater Hospital reported NJCX “no longer has any active medical conditions or side effects from medications which are impairing [NJCX’s] ability to work” and NJCX “has experienced clinically significant mental stress due to disputes with [NJCX’s] previous employer”.^[57]
67. On 4 January 2019, NJCX consulted Dr Jeffrey. The doctor noted:

    Not feeling well mentally. Nightmares.

    Partner [BB] been doing extensive research into NJCX’s online activity.

    [BB] is concerned [NJCX] has been on social media dating sites.

    Attended 3 days couples counselling course recently.

    Restarted drinking alcohol during Christmas.

    Saw couples counsellor at new psych recently.

    Reason for visit:

    Relationship problem

    Anxiety

    Management:

    To see social worker ... at the hummingbird centre as planned.

    To continue 120mg Cymbalta daily, continue 25mg Seroquel before bed.

    r/v 1 month, sooner if any concerns. Plans to stop alcohol soon.

    Actions:

    Prescription printed: Seroquel 25mg Tablet 1 Before bed p.r.n.^[58]

68. On 28 February 2019, Dr Jeffrey issued a medical certificate in which he recorded a diagnosis of “Anxiety+depression” with the date of onset being “08/11/2018”.^[59]
69. On 7 April 2019, NJCX was admitted to the South Pacific Hospital. NJCX was treated by Dr Watt and Dr Sharma. On 17 April 2019, Dr Sharma issued a medical certificate in which he recorded diagnoses of “Alcohol Use Disorder (sober 2015-Dec 2018)” and “Persistent Depressive Disorder (Dysthymia)” with a date of onset in “2019”.^[60] NJCX was discharged on 29 April 2019.
70. Dr Jeffrey issued medical certificates on 21 May 2019^[61] and 21 August 2019^[62] in which he recorded diagnoses of “Alcohol Use Disorder” and “Depression” with a date of onset in 2019.
71. On 16 October 2019, NJCX commenced treatment at the Toronto Therapy Service Day Programs Unit of the Toronto Private Hospital. The treatment was under the supervision of Dr Vasantha Pothala, a consultant psychiatrist, and Renee Morrison, a clinical psychology registrar.^[63]
72. On 28 April 2020, NJCX lodged a compensation claim form in respect of “Psychological Injury” which is said to have occurred at 10.00am on 10 July 2018 in NJCX’s employment by ARTC.^[64] NJCX gave oral evidence this date and time was an estimate which was not based on any particular event. ARTC provided a response to NJCX’s claim in which it disagreed with factual elements of the claim.^[65]
73. NJCX lodged a medical certificate Dr Jeffrey issued on 28 April 2020, in which the doctor recorded diagnoses of “Persistent depressive disorder, alcohol use disorder”. In respect of the onset of these conditions, Dr Jeffrey stated “Patient stated date of injury from mid June 2018”, noting “Alcohol Use Disorder 2015 – but stopped drinking alcohol in 2015”.^[66]
74. On 5 June 2020, Dr Geoff McDonald, a consultant psychiatrist, provided a medicolegal report to Comcare.^[67] I note Dr McDonald is unrelated to Mr McDonald, NJCX’s previous manager at ARTC. Dr McDonald reported diagnoses of Persistent Depressive Disorder (exacerbation since 2018) and Alcohol Use Disorder (stated she is currently abstinent).^[68]
75. On 16 July 2020, Comcare issued a determination refusing NJCX’s compensation claim.^[69] NJCX requested reconsideration of this decision.^[70]
76. On 24 July 2020, Dr Pothala reported diagnoses of “Generalised Anxiety Disorder”, “Major Depressive Disorder” and “Substance Use Disorder (Alcohol)”.^[71]
77. On 17 September 2020, Comcare issued a reconsideration decision in which it affirmed the 16 July 2020 determination refusing NJCX’s compensation claim.^[72] On 26 October 2020, NJCX lodged an application for review of this decision by the Tribunal.^[73]

Issues

78. The Tribunal must “stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”.^[74]
79. The following issues arise for consideration and determination:

    (a) the Tribunal’s jurisdiction in respect of NJCX’s alleged claim relating to Alcohol Use Disorder;

    (b) the nature and onset of NJCX’s alleged ailments under claim;

    (c) the ‘disease’ threshold under s 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), in particular whether NJCX’s employment contributed to the ailments under claim to a significant degree;

    (d) the ‘injury’ threshold under s 5A of the SRC Act, in particular whether any such ‘disease’ is excluded on grounds it resulted from ‘reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment’; and

    (e) the applicability of the disease exclusion under s 7(7) of the SRC Act.

Jurisdiction

80. The ambit of the Tribunal’s jurisdiction must be determined. NJCX asserts the compensation claim form refers to two ailments: Persistent Depressive Disorder and aggravation of Alcohol Use Disorder. In the materials before the Tribunal, however, the subject of the compensation claim NJCX lodged is incomplete or not visible: of the conditions specified for which compensation is claimed, only Persistent Depressive Disorder is visible.
81. The response to question 19 in the claim form is as follows^[75]:

19. What is the condition you are claiming for?

Psychological injury Persistent Depressive Disorder (Dysthymia) – emergency hospitalised/ in-patient hospitalised/ treatment on-going => symptoms persistent and on-going; and

82. NJCX explained the claim form was completed electronically and then saved in a PDF format.
83. In the course of the hearing, searches were made by both parties for the complete claim form, without success. Ms Bortone informed me Comcare held only a printed copy of the claim, as lodged. NJCX was unable to locate the original claim form.
84. It appears Comcare initially proceeded on the visible content of the claim form that NJCX lodged, deciding NJCX’s ‘aggravation of recurrent depressive disorder’ is not a ‘injury’ for which Comcare is liable.^[76] On reconsideration, the decision-maker considered NJCX’s claims in respect of Persistent Depressive Disorder and Alcohol Use Disorder.^[77]
85. The question presently is whether the Tribunal has jurisdiction to determine NJCX’s claim in respect of aggravation of Alcohol Use Disorder.
86. The scheme of the SRC Act provides a three-tiered structure for decision-making: determination, as defined in s 60 of the SRC Act; reconsideration of a determination under s 62 of the SRC Act; and review of a reconsideration decision under s 64 of the SRC Act. It is in this context the importance of providing notice on an injury under s 53 and making a claim under s 54 can be understood. The nature of an injury or ailment and its connection with the employment is the essential information to be imparted under s 53.^[78] While a decision-maker should interpret a claim in a broad, generous and practical manner,^[79] the purpose of notice is “to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met”.^[80]
87. Within this statutory scheme, the Tribunal’s jurisdiction is conferred by s 64(1) of the SRC Act. The jurisdiction conferred is for review of a reviewable decision, which is defined in s 60 to include a reconsideration decision made under s 62 of the SRC Act. Once enlivened by a valid application under s 25 of the AAT Act, the Tribunal’s review jurisdiction under s 64 of the SRC Act extends to all matters which were put before the decision-maker as part of the claim and were capable of being reconsidered and decided in the exercise of powers conferred upon the person who made the reconsideration decision under s 62 of the SRC Act.
88. There is an important distinction between the matters expressly decided by a decision-maker and the matters which may be taken to have been decided in the exercise of the powers and delegations conferred upon the decision-maker. Where a matter is placed before a decision-maker as part of a claim and the decision-maker has power to determine it, but the matter is not addressed in any way by the decision maker in an adverse determination of the claim, the decision maker may be taken to have decided the matter adversely to the claimant.^[81] Matters of this kind are within the ambit of reconsideration under s 62 and review under s 64 of the SRC Act.^[82]
89. In NJCX’s case, notice of the alleged injury was given in the form of NJCX’s compensation claim, comprising the actual form lodged^[83] and the accompanying Work Cover NSW Certificate of Capacity completed by Dr Jeffrey on 28 April 2020.^[84] In response to questions 27 and 28, NJCX recorded first medical treatment for the claimed conditions was obtained from Dr Jeffrey on 22 October 2020.^[85]
90. In the Work Cover NSW Certificate accompanying the claim, Dr Jeffery recorded information in respect of the conditions NJCX was suffering, including:

[Identifying information redacted.]

91. As can be seen, Dr Jeffrey’s diagnoses align with those of Dr Watt in April 2019. Dr Jeffrey did not refer to an aggravation of Alcohol Use Disorder, even though he noted a previous occurrence in 2015.
92. The proposition the complete response to question 19 (albeit not visible) refers to ‘aggravation of Alcohol Use Disorder’, as NJCX’s asserts, does not align with the language used in Dr Jeffrey’s Work Cover NSW Certificate which accompanied the claim form, or with the language used in the medical certificates issued by Dr Jeffrey on 21 February 2019, 21 May 2019 and 21 August 2019 and Dr Sharma on 17 April 2019.^[86] While it is possible the response to question 19 might have referred to ‘aggravation of Alcohol Use Disorder’ as NJCX contends, Dr Jeffrey’s medical certificate refers only to Alcohol Use Disorder.
93. On this material, applying the legal propositions Madgwick J set out in Abrahams,^[87] I am satisfied the claim includes the conditions diagnosed and certified by Dr Jeffrey in the Work Cover NSW Certificate accompanying the claim form, namely conditions meeting the descriptions of Persistent Depressive Disorder and Alcohol Use Disorder. It is in respect of conditions meeting these descriptions Comcare had authority and power to determine NJCX’s claim. Moreover, s 61(1A) obliges Comcare to consider and determine each claim for compensation under s 14 of the SRC Act within the period prescribed in s 11A of the Safety, Rehabilitation and Compensation Regulations 2019 (Regulations).
94. In this instance, in the determination refusing NJCX’s compensation claim, Comcare did not expressly address NJCX’s claim in respect of Alcohol Use Disorder in any particular way but referred to Dr McDonald’s report in which he discussed Persistent Depressive Disorder and Alcohol Use Disorder.^[88] Adopting the principle discussed in Fuad^[89] (which was confirmed in Irwin^[90]), the adverse determination is taken to be an adverse determination on all matters before the decision-maker.^[91]
95. When addressing NJCX’s request for reconsideration,^[92] under s 62 of the SRC Act the reconsideration decision-maker had authority and power to address all matters which were before the primary decision-maker and were capable of being decided by that person in the exercise of delegations and powers conferred upon them, including in respect of Alcohol Use Disorder. This point is reinforced by the reasons for the request NJCX provided in reference to Alcohol Use Disorder.^[93] In the result, the reconsideration decision refused liability to pay compensation in respect of Persistent Depressive Disorder and relapse of Alcohol Use Disorder under the claim.^[94]
96. In these circumstances, the Tribunal has jurisdiction and power to consider and determine afresh all aspect of NJCX’s claim, including in respect of Alcohol Use Disorder.

Ailment

97. In NJCX’s submission, the two conditions covered by the compensation claim each meet the description of ‘ailment’ under s 4 of the SRC Act. NJCX asserts the Persistent Depressive Disorder condition arose on or about July and August 2018, during the period of ARTC employment, and the Alcohol Use Disorder relapse occurred sometime thereafter, in December 2018.
98. Comcare alleges NJCX has a history of mental health issues involving symptoms of depression and anxiety over a long period prior to NJCX’s ARTC employment. Comcare argues NJCX suffered from a mental health disorder before commencing and during the period of NJCX’s employment by the ARTC. Comcare asserts the available evidence does not establish NJCX experienced new or increased employment-related psychological symptoms, traversing the boundaries of normal mental functioning and behaviour,^[95] which would amount to a new ‘ailment’ or the ‘aggravation’ of a pre-existing ailment.
99. As these matters are to be viewed through the lens of NJCX’s claim and the ‘disease’ provisions in s 5B of the SRC Act, the first question^[96] is whether NJCX suffered from an ‘ailment’ as defined in s 4(1) of the SRC Act:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

100. In order to answer this question, the particular facts raised by the evidence must be considered. Generally, the subjective experience of feeling unwell may not be sufficient to establish the existence of an ‘ailment’.^[97] It is well established that an ‘ailment’ involves disturbance of the normal functions of body or mind to the extent that the person’s condition is outside the boundaries of normal mental functioning and behaviour.^[98] The nature of such disturbance, including the onset, clinical significance and diagnosis of any physical or mental condition, is a matter for evidence.
101. On the evidence of Dr Watt and Dr McDonald, NJCX suffers from Persistent Depressive Disorder and Alcohol Use Disorder (presently in remission). Dr Pothala initially reported diagnoses of Generalised Anxiety Disorder, Major Depressive Disorder and Substance Use Disorder (Alcohol).^[99] The doctor subsequently reported diagnoses of Major Depressive Disorder with anxious Distress and Alcohol Use Disorders – currently in remission.^[100]
102. As frequently occurs in matters of psychiatric diagnosis, psychiatric opinions differ. Whether much turns on the diagnosis of NJCX’s depressive illness in this case is moot. Nevertheless, while the symptoms of each disorder may overlap, the important distinction is one of duration or chronicity. Dr McDonald is of the opinion NJCX has experienced relapsing depression over a long period. Dr Pothala reported ARTC employment is the ‘predominant factor’ in NJCX’s Major Depressive Disorder.^[101]
103. To the extent Dr Pothala has a different opinion to Dr Watt and Dr McDonald about the diagnosis of NJCX’s depressive illness, his opinion is not preferred for the following reasons.
104. The Persistent Depressive Disorder diagnosis formulated by Dr McDonald and Dr Watt more closely aligns with the evidence of NJCX’s mental health history and related treatment from 2013 than Dr Pothala’s diagnosis of Major Depressive Disorder.
105. Furthermore, Dr McDonald gave a clear and detailed rationale for his diagnostic opinion, drawing on extensive documents and medical records illuminating NJCX’s relevant medical history, including NJCX’s mental health and related treatment from 2013, as well as relevant factual information. To the extent NJCX asserts Dr McDonald was not impartial in his evidence, this submission lacks probative support and I reject it. The doctor’s expert evidence was detailed, well-supported and tested under cross-examination. The doctor’s diagnostic reasoning is cogent, rationally probative and supported by relevant probative materials.
106. Dr McDonald was briefed with extensive documents relating to NJCX’s mental health history and relevant circumstances. The doctor engaged with and drew on this material to document NJCX’s mental health history and contextualise his clinical examination of NJCX when formulating his diagnostic reasoning and opinion. Dr McDonald’s diagnosis of Persistent Depressive Disorder, or Dysthymia, is consistent with NJCX’s history of relapsing symptoms and treatment, including symptoms of depression and antidepressant treatment over many years.
107. Dr Pothala provided a number of reports.^[102] As NJCX’s treating psychiatrist, Dr Pothala expressly relied on the information he was given by NJCX.^[103] But that information was not as comprehensive or complete as the extensive materials on which Dr McDonald was able to draw when formulating his opinion. Dr Pothala did not have access to all relevant documentary information in respect of NJCX’s mental health history.
108. While Dr Pothala sets out a rationale for his diagnoses, his reasoning is brief and informed by an incomplete history. The extent to which the doctor engaged with the relevant documents he was given by NJCX is unclear. The doctor did not expressly address relevant matters arising from NJCX’s history of psychological symptoms and life stressors when explaining the psychiatric reasoning and rational for his diagnostic opinion.
109. Dr Pothala’s evidence has not been tested. It has not been possible to put relevant matters to the doctor, including details of NJCX’s mental health history and related stressors, symptoms and treatments. It is not possible to know what effect, if any, additional documentary information about NJCX’s mental health history and related treatment prior to the period of NJCX’s ARTC employment might have had on Dr Pothala’s diagnostic opinions. While this reduces the weight which can be given to Dr Pothala’s evidence, I also take into account his role as NJCX’s treating psychiatrist since NJCX commenced the Dual Diagnosis group program at Toronto Private Hospital on 2 July 2019.^[104]
110. It was in this capacity as NJCX’s treating psychiatrist Dr Pothala provided the reports in evidence. It is quite apparent the doctor is strongly supportive of his patient. Without being critical of Dr Pothala in any way, in all likelihood this stems, at least in part, from the doctor’s therapeutic role with NJCX, seeking the best outcome for his patient, as well as his professional opinion. I should say immediately this is an issue of evidence, not a comment about Dr Pothala’s clinical practice as an experienced psychiatrist. It is unfortunate Dr Pothala was not available to give oral evidence and to address such matters.
111. On balance, I am satisfied Dr McDonald’s evidence is more comprehensive and rationally probative than Dr Pothala’s evidence.
112. The question of when NJCX’s Persistent Depressive Disorder began is vexed. NJCX referred to the diagnostic criteria set out in the Diagnostic and Statistical Manual of Psychiatric Disorders (DSM-V). The question of when NJCX’s presenting symptoms traversed the threshold of Persistent Depressive Disorder is informed by the patient’s medical and psychiatric history, the psychiatrist’s clinical examination of the person and the psychiatrist’s expert or professional judgement. However tempting it might be for a person without psychiatric training and qualifications to approach the DSM-V as a diagnostic checklist, doing so is inapt.
113. On the evidence of Dr Barling, Dr Dunn and Dr Jeffrey, it is probable NJCX suffered from symptoms of anxiety, agitation, panic attacks and depression for a number of years prior to commencing employment by ARTC.
114. On Dr Dunn’s evidence on 10 October 2013, NJCX was not depressed at the time, although NJCX had difficulty completing the BECK depression inventory. Dr Dunn reported NJCX identified with symptoms of anxiety and anger but not depression, although the doctor reported NJCX was euthymic, which I take to mean NJCX was not manic or depressed. Dr Dunn reported NJCX’s symptoms were consistent with a chronic adjustment disorder, although the doctor stated he did not think NJCX’s “psychiatric diagnostic formulations account well for patients who present in this way”.^[105] At that time, NJCX was prescribed Cymbalta (an anti-depressant medication) and Olanzapine (an anti-psychotic medication). I note Dr Dunn considered the possibility NJCX was tipping into a psychotic state but retreated from any such diagnosis at that time. On 3 June 2014, Dr Dunn again reported that NJCX was not depressed. On 17 October 2015, Dr Dunn reported “In general, [NJCX] appears to have experienced symptoms of both anxiety and depression, but usually as a reaction to stressful life events”.^[106] The doctor reported difficulty diagnosing a particular psychiatric disorder, although he concluded NJCX may have experienced adjustment disorders in response to life stressors. Dr Dunn reported no pattern of recurrent relapse at that time. This notwithstanding, on 19 January 2016 Dr Dunn treated NJCX, noted an increase in NJCX’s Cymbalta prescription to 120mg per day and added Seroquel (also known as Quetiapine, an anti-psychotic medication).
115. I note NJCX consulted Dr Barling on 19 January 2016. The doctor noted the consultation was in respect of “Anxiety/Depression”, with a history of treatment for “anxiety/depression/panic attacks”.^[107] On 25 January 2016, NJCX’s lawyer stated NJCX’s “anti-depressant and anti-anxiety medications have now reached therapeutic levels”.^[108] On 22 February 2016, Dr Barling noted NJCX “needs more Cymbalta”.^[109] Dr Barling issued further prescriptions for Cymbalta and Seroquel on 26 April 2016 and 23 June 2016, and for Cymbalta on 5 August 2016.^[110] On 7 November 2016, Dr Tsironis prescribed Cymbalta for NJCX as NJCX had “run out”.^[111]
116. On 3 November 2017, Dr Jeffrey noted NJCX “Requests Cymbalta. Mood stable”.^[112] NJCX continued treatment with Cymbalta (although this was reduced to 60mg per day by Dr Jeffrey) and Olanzapine.
117. I accept NJCX’s mental health issues did not prevent NJCX from working in a senior procurement management position for Newcastle Permanent on a temporary basis in the latter part of 2017.
118. On 8 January 2018, Dr Jeffrey increased NJCX’s Cymbalta prescription to 120mg per day. He noted a discussion about Champix to assist NJCX stop smoking and recorded “Potential for depression worsening on this” and that NJCX “feels Cymbalta 120mg is helping”.^[113] In all likelihood, the increased dosage Dr Jeffreys prescribed was in response to NJCX’s experience of stress and increased symptoms at that time.
119. Notably, the dosage of Cymbalta thereafter remained at the level of 120mg per day throughout the period of NJCX’s employment by ARTC.
120. NJCX gave evidence NJCX commenced taking Diazepam in July 2018. The Diazepam was allegedly obtained without prescription from NJCX’s partner, BB. BB was not called to give oral evidence so this aspect of the evidence could not be tested in the usual way. NJCX’s allegation lacks reliable corroboration of probative value. NJCX consulted Dr Jeffrey on 14 June 2018 and on 20 September 2018. The records of these consultations do not refer to NJCX experiencing difficulties at work or requiring Diazepam, which was not prescribed by Dr Jeffrey until 22 October 2018.
121. I am satisfied NJCX experienced recurrent symptoms of anxiety, agitation and depression over many years, at least from 2013, in response to life stressors. The recurrent nature of such symptoms are consistent with the Persistent Depressive Disorder diagnosed by Dr Watt and Dr McDonald. On the evidence of Dr Dunn and Dr Barling, and the Cymbalta treatment NJCX obtained from 2015, it is probable NJCX experienced clinically significant psychological symptoms, including symptoms of anxiety and depression, over a long period. It is probable the symptoms Dr Dunn diagnosed as adjustment disorders were manifestations of NJCX’s Persistent Depressive Disorder, albeit the pattern of recurrent relapse was not apparent to Dr Dunn at the time.
122. For these reasons, considering the extensive documents recording NJCX’s mental health history, I am satisfied it is probable NJCX suffered from Persistent Depressive Disorder for many years prior to commencing employment with ARTC, in all likelihood from 2015 at least.
123. On Dr Dunn’s evidence, NJCX’s Alcohol Use Disorder arose in or around October 2015. NJCX obtained treatment and the Disorder went into remission. This continued until NJCX experienced a relapse in December 2018.
124. NJCX’s Persistent Depressive Disorder and Alcohol Use Disorder are within the meaning of ‘ailment’ in s 4 of the SRC Act.

Disease

125. The next step is to determine if there is a ‘disease’ for the purposes of s 5B of the SRC Act:

     (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.

126. The assertion NJCX’s Persistent Depressive Disorder was significantly contributed to by circumstances in NJCX’s ARTC employment from on or around July to September 2018, prior to the events on 18 October 2018,^[114] is not made out.
127. The proposition NJCX experienced an increase in psychological symptoms in this period is raised on NJCX’s evidence alone. To the extent Dr Jeffrey referred to NJCX’s perceptions of unfair treatment, bullying and lack of support in ARTC employment,^[115] it is clear the doctor was referring to NJCX’s account without reference to relevant supporting contemporaneous material. NJCX’s assertion of having experienced an increase in symptoms which required treatment with Diazepam in or about July or August 2018 lacks reliable corroboration. The assertion is not supported by any contemporaneous or reliable material of probative value. There is no contemporaneous record of NJCX alluding to any such symptoms or related mental health concerns during this period.
128. The extensive evidence of NJCX’s interactions with other senior managers in ARTC employment, including Mr Grant, Mr McGranahan and Mr McDonald, points to unresolved and evolving structural and operational issues which affected NJCX’s role. It is quite clear the ARTC business was undergoing a process of transformation which began before NJCX commenced employment. It was in this process the Major Tender Manager position was created, and in all likelihood, the scope and role of the position evolved as the business transformation proceeded. In this context, the scope of NJCX’s role does not appear to have been clearly understood or well supported. It is probable this led to confusion and uncertainty. NJCX’s role managing Major Tenders was not well resourced. This led to competition for resources in respect of ongoing ‘Business As Usual’ operations. It is probable NJCX’s role improving the procurement framework, including in the reformulation of procurement policies, processes and relevant parts of the Manual, was also controversial. Mr McDonald explained the transformation process and high work pressures at the time. NJCX’s own account of interactions with Mr Grant, Mr McDonald and other senior ARTC employees and stakeholders supports this conclusion.
129. In this high-pressure work environment tensions arose between NJCX and Mr Grant. This is supported by the documented interactions between NJCX, Mr Grant and Mr McDonald. NJCX has given extensive evidence addressing this point,^[116] some of which is contested and is not consistent with accounts Mr McDonald gave in evidence.^[117]
130. NJCX alleges Mr McDonald ignored requests for resources and clarification of NJCX’s scope of work, and he failed to address complaints NJCX made about Mr Grant’s behaviour in June and July 2018.^[118] I have carefully examined the contemporaneous records and the detailed accounts given by NJCX and Mr McDonald.
131. NJCX made no formal complaints in respect of alleged bullying or harassment. NJCX set out matters allegedly raised with Mr McDonald concerning Mr Grant, including:

     [Mr Grant] is at the same level of seniority as myself, but is acting in an authoritative way. He’s giving me instructions and delegating his work to me on the grounds that he’s too busy. I’m finding his behaviour unreasonable.^[119]

and

I am continuing to have real troubles working with [Mr Grant]. I have asked him numerous times for a handover of Major Tenders but he has ignored me. He’s not doing anything to assist me in the role, and in fact, he’s actively making my job more difficult.^[120]

132. In respect of a meeting on 27 July 2018, NJCX set out the following account:

     I called this meeting to discuss my ongoing issues I have in working with [Mr Grant] and his behaviours towards me. I am finding it difficult to cope and work in these conditions. I have been unable to get necessary information from [Mr Grant] about Major Projects for two months now. It is something we need to resolve. In addition, I would like to discuss my ongoing lack of resourcing so I don’t need to keep begging [Mr Grant] or members of his team for help.

     Finally, I would like to clarify my scope of work, and the difference between [Mr grant] and my roles and responsibilities. The demarcation dispute between [Mr Grant] and myself is creating a lot of tension.

     I also find it unacceptable that [Mr Grant] speaks to me and other staff members so aggressively and authoritatively. He acts like he is my superior and seeks to delegate his work to me. Other staff members tell me that [Mr Grant] has a ‘big ego’, and his authoritative and demeaning behaviour towards me is inappropriate and it is making me uncomfortable.^[121]

133. Mr McDonald denies NJCX raised these or any other issues about Mr Grant’s behaviour and explained that he regularly discussed NJCX’s need for additional resources and NJCX’s role in this, including:

     I regularly discussed with [NJCX] that [NJCX] needed additional resources to develop the Major Tenders work and was clear that [NJCX’s] role involved working out what was needed to expand this area of the business and developing a business case with me for new headcount. [NJCX] was aware of the limitations of the new position and had started drafting possible organisation charts.^[122]

134. In all likelihood, the matters NJCX raised related to operational and resourcing issues and the ‘demarcation’ of roles and responsibilities. There was competition for resources and a lack of procedural clarity about the new Major Tender Manager role. Clearly enough, there were tensions between NJCX and Mr Grant.
135. Mr McDonald gave an account of a meeting with NJCX and Mr Grant on 4 July 2018 in which “both were a little agitated” about their respective roles, responsibilities and resources.^[123] Mr McDonald gave evidence he ended the meeting by informing them:

     No one will win this argument unless you both work through this, respect each other’s opinions, show leadership and work with our current resources.^[124]

136. Mr McDonald asserts over preceding days emails between NJCX and Mr Grant had “descended into a petty squabble” which did not reflect ARTC’s values, and he told them to stop their emails.^[125]
137. Mr McDonald alleges, on 12 July 2018, Mr Grant sent him an email consequent to Mr McGranahan raising issues of NJCX’s performance.^[126] It is not clear what action, if any, Mr McDonald took in respect of this matter.
138. Mr McDonald met with NJCX and Mr Grant on 27 July 2018. Mr McDonald stated the meeting was arranged at NJCX’s insistence to discuss resourcing and role allocation. He stated:

     ... I cannot recall the specific words said during this meeting but deny that [NJCX] complained about the way Mr Grant spoke to [NJCX] or other staff members or that there was any reference by NJCX or Mr Grant to his ego. There was tension between [NJCX] and Mr Grant as they both sought clarity from me about their workloads, but at no point during this meeting did either complain about the other. Mr Grant was not critical of [NJCX], nor was [NJCX] marginalised by Mr Grant or me.

     I recall the meeting was frustrating as [NJCX] and Mr Grant disagreed about the use of the Contracts Services team resources for Major Tender work and kept coming back to the same issues.

     We had a team management meeting scheduled for 1 August 2018 and I had the first Procurement Transformation Steering Committee Meeting scheduled on 7 August 2018 at which these issues were to be discussed, so I ended the meeting with [NJCX] and Mr Grant with words to the effect of:

     “This meeting is not productive. We need to sit down and have a scheduled meeting about resourcing so that I can then discuss with the Steering Committee.”^[127]

139. It is clear enough Mr McDonald had an expectation NJCX, as a senior manager, would manage the high-level responsibilities of the Major Tender Manager role, including being a subject matter expert and communicating with stakeholders and other senior managers, in a difficult process of “major change”^[128].
140. No doubt, this was a demanding, challenging work environment for NJCX. It is probable NJCX experienced stress in these circumstances.
141. NJCX was scheduled for a performance review meeting with Mr McDonald on 10 August 2018. In preparation for this meeting, Mr McDonald provided NJCX with a Performance Discussion document to complete. NJCX did not return the document to Mr McDonald ahead of the meeting. Furthermore, NJCX did not attend the performance review meeting on 10 August 2018. NJCX asserts Mr McDonald met with NJCX the previous day and cancelled the performance review meeting. Mr McDonald disagrees and gave evidence the meeting was not cancelled, but NJCX did not attend and later explained NJCX had been in another meeting. On Mr McDonald’s evidence, NJCX was “notorious for being late for and missing meetings”^[129] and he asked NJCX to reschedule the meeting, but this was not done.
142. On 12 September 2018, NJCX was late attending an Advanced Procurement Training event, based on the current procurement framework and Manual. Participants included ARTC senior managers, including Ms Gallasch, and ARTC auditors. Mr McDonald gave evidence NJCX asked questions displaying “a lack of basic knowledge regarding procurement processes” which Ms Gallasch raised with Mr McDonald after the meeting.^[130] Mr McDonald stated he met with NJCX the following day and informed NJCX that NJCX needed “to improve in the role and deliver more against the stated objectives”.^[131] NJCX’s account of this meeting confirms the matter raised by Mr McDonald and proceeds to set out extensive responses, including:

     I wasn’t prebriefed about the [Advanced Procurement Training] meeting.

     I assumed ... it was an appropriate time to ask questions.

     ... no-one told me that I should not have asked questions about my scope of work. I thought I could finally get some answers.

     ... There is no clear process for engaging IPA (Independent Probity Advisor) which we are in need to engage within Major Tenders and nobody seems to know or to explain the process to me. My objectives state I have to ensure IPA engagement. Therefore, I asked questions about procedures I need to know about.^[132]

143. On 14 September 2018, NJCX met with Mr McDonald to discuss NJCX’s performance objectives for 2018-2019 “to set objectives for the forthcoming year”: hitherto, “ARTC expected [NJCX] would be guided by [NJCX’s] Position Description”. ^[133] NJCX stated Mr McDonald did not rasie “any concerns with [NJCX’s] work performance".^[134] Mr McDonald agreed this was not a performance review meeting.
144. On 20 September 2018, NJCX sent an email to Mr McDonald outlining “suspicions and concerns that ARTC was excluding the Procurements and Contracts department from involvement in larger strategic, valuable and business-related procurement strategies”.^[135] NJCX “was becoming increasingly concerned that the change in organisational structure was preventing [NJCX] from carrying out the primary (and most valuable) aspects of NJCX’s role”.^[136] Mr McDonald gave evidence he raised performance issues with NJCX on 24 September 2018 and “provided feedback that other senior management in the business had raised concerns with me about [NJCX’s] support for other stakeholders and understanding of processes”.^[137] On his evidence, Mr McGranahan raised additional concerns about NJCX’s performance later that day and that “he did not want [NJCX] to provide advice to his business area as [NJCX] was causing confusion”.^[138]
145. On 4 October 2018, NJCX and other employees attended a Code of Conduct meeting in which an employee engagement survey and mechanisms for lodging complaints were discussed. Mr McDonald alleges he did not receive any complaint from NJCX about bullying, harassment or similar behaviour.
146. On 5 October 2018, NJCX was scheduled to attend a ‘standing’ team meeting with Mr McDonald, Mr Grant and other employees. NJCX alleges the meeting commenced 10 minutes before the schedule start time and this made NJCX “feel like I did not belong in the team and that I was being intentionally excluded from team meetings”.^[139] Mr McDonald gave evidence NJCX arrived late to the meeting and was not excluded in any way as the meeting was “an open forum”.^[140]
147. On 15 October 2018, NJCX met with Mr McDonald who provided critical feedback and “disappointment” about a draft paper NJCX prepared for ARTC’s Business Investment Committee.^[141] NJCX alleges Mr McDonald complained of having to take calls about the procurement framework for Commonwealth funded projects while NJCX was on leave.^[142] Mr McDonald denies this.^[143] Later on 15 October 2018, NJCX met again with Mr McDonald and Mr McDonald raised Mr McGranahan’s concerns about NJCX’s performance and that NJCX “is not adding value to the procurement process”.^[144] NJCX disputed this and raised an issue about being excluded from a recruitment panel with Mr Grant.^[145]
148. Considering all the relevant materials, I am satisfied concerns about NJCX’s work performance arose from 12 July 2018. In all likelihood, these were raised with NJCX by Mr McDonald in the context of operational matters and performance review or planning discussions from 13 September 2018.
149. Objectively considered, the available contemporaneous evidence does not establish that NJCX was subjected to bullying or harassment by Mr McDonald, Mr Grant or any other ARTC employee. No such issue was squarely raised by NJCX at the time. I am not persuaded NJCX’s alleged verbatim recollections of conversations 4 years ago are reliable evidence of what actually occurred. While it is possible NJCX formed perceptions of bullying, harassment or unfair treatment during the period of NJCX’s ARTC employment, there is no direct contemporaneous evidence of this. The documented interactions between NJCX and other senior ARTC personnel, including Mr Grant, Mr McGranahan and Mr McDonald, raise operational and resourcing issues during a period of business transformation. In all likelihood some of these interactions were conducted in a robust manner in the context of challenging operational circumstances, competition for resources and the then ongoing process of transformation in ARTC’s business. As I have said, these circumstances were likely stressful for NJCX.
150. There is no contemporaneous evidence the high-pressure work environment or the work stresses caused NJCX to experience an increase in psychological symptoms at the time, prior to termination of NJCX’s ARTC employment.
151. It is possible the employment stresses NJCX likely experienced in ARTC employment may have contributed to some degree to NJCX’s pre-existing depressive illness, then being treated by Dr Jeffrey. In this context, NJCX may well have been susceptible to experience reactive symptoms. Nevertheless, there is no reliable or contemporaneous evidence to raise this above the threshold of possibility.
152. At this time, NJCX was also experiencing a number of stressors outside ARTC employment, including relationship difficulties with BB in addition to stresses arising from family and reproductive issues which had been ongoing since January 2018, at least.
153. In the compensation claim form NJCX completed on 28 April 2020, NJCX set out a specific date and time for the onset of symptoms, namely 10 July 2018 at 10.00am. In oral evidence, NJCX accepted this was not based on any particular event and it may not be accurate. There is no reliable corroboratory evidence that NJCX experienced new or increased psychological symptoms on 10 July 2018 or at any time in NJCX’s ARTC employment prior to 18 October 2018.
154. The available materials do not support the proposition NJCX experienced a disturbance of the normal functions of mind or a condition outside the bounds of normal functioning and behaviour (additional to NJCX’s pre-existing and then ongoing mental illness for which Dr Jeffrey prescribed pharmacological treatments) prior to and during the period of NJCX’s ARTC employment up to 18 October 2018.
155. Even if NJCX formed adverse perceptions about bullying harassment or unfair treatment in the ARTC employment prior to 18 October 2018, the first evidence of this is in the clinical notes of Dr Jeffrey on 22 October 2018.^[146] On Dr Jeffrey’s evidence and the evidence of the Hummingbird Centre^[147], NJCX subsequently complained of alleged bullying, harassment and unfair treatment in ARTC employment. Viewed objectively, NJCX’s complaints of bullying, harassment and unfair treatment crystallised on the termination of NJCX’s employment.
156. The subsequent reports of Dr Watt, Dr Jeffrey and Dr Pothala, and the summonsed medical and psychological records in evidence,^[148] do not compel a different result on this point. Each doctor relied on accounts they were given by NJCX without access to all relevant information. Only Dr McDonald had access to all the relevant information and his opinion is preferred.
157. Dr Jeffrey’s notes of his consultations with NJCX on 22 October 2018 and 8 November 2018 point to NJCX experiencing an increase in ‘anxiety’ and ‘not coping’ at that time which required additional treatment with Diazepam. I am satisfied the increase in symptoms is consistent with an ‘aggravation’ of NJCX’s Persistent Depressive Disorder.
158. Considering the matters in s 5B(2) of the SRC Act, NJCX’s ARTC employment was for a period of approximately 6 months. The employment was at a senior management level during a period of business transformation, in which NJCX’s responsibilities as Major Tender Manager included particular tasks providing specialist advice to stakeholders and interacting with other senior managers in the management and reformation of procurement mechanisms, policies and procedures. NJCX has a history of mental illness and a predisposition to experience an increase in symptoms in response to stressors. Outside ARTC employment, NJCX was engaged in activities and circumstances which also affected NJCX’s mental health, including relationship difficulties and reproductive considerations.
159. Taking these considerations into account, for the purposes of s 5B(1) of the SRC Act, I am satisfied the ‘aggravation’ was significantly contributed to by the termination of NJCX’s ARTC employment and related events on 18 October 2018. This means the threshold of a ‘disease’ in s 5B(1) of the SRC Act is surpassed. To the extent work stresses prior to 18 October 2018 contributed to NJCX’s Persistent Depressive Disorder or to an aggravation of that Disorder, if at all, I am satisfied the contribution was not to a degree that is substantially greater than material. In other words, I am satisfied any contribution made by work stresses in NJCX’s ARTC employment prior to 18 October 2018 was not substantially greater than material and it was overtaken by the termination of NJCX’s employment.
160. With regard to the claim in respect of Alcohol Use Disorder, I am satisfied NJCX relapsed into use of alcohol in December 2018. Dr Jeffrey’s clinical note on 8 November 2018 refers to “No alcohol”. In all likelihood, NJCX was not using alcohol at that time. On 4 January 2019, Dr Jeffrey noted that NJCX “Restarted drinking alcohol during Christmas”.^[149] The records of the Hummingbird Centre on 21 December 2018 refer to NJCX’s admission to hospital after consuming a large amount of alcohol the previous Saturday. On 17 December 2018, NJCX was admitted to the Calvary Mater Hospital for treatment of a self-poisoning event. ^[150]
161. NJCX gave uncorroborated evidence of resuming drinking alcohol at an earlier time, before December 2018. NJCX’s evidence on this point is drawn from memory and without corroboration it is not reliable. When closely examined on this point, NJCX agreed the relapse into alcohol use might have occurred in December 2018. Dr Jeffrey’s contemporaneous notes are likely to be more reliable and I give them more weight than NJCX’s uncorroborated account. On Dr Jeffrey’s 4 January 2019 note, it appears NJCX was experiencing significant relationship issues with BB. This is supported by the extensive account NJCX gave the Hummingbird Centre on 14 December 2018 and the clinical notes of the Calvary Mater Hospital on 17 December 2018.^[151]
162. I am satisfied the termination of NJCX’s employment and related perceptions of unfairness, bullying and harassment contributed to some degree to NJCX’s relapse into use of alcohol in December 2018. When viewed in the context of the relationship issues Dr Jeffrey set out on 4 January 2019 and the related issues NJCX described to the Hummingbird Centre on 14 December 2018, as well as the factors which led to NJCX being hospitalised on 17 December 2018, I am satisfied NJCX’s employment was a contributory factor in the ‘aggravation’ of NJCX’s Alcohol Use Disorder, albeit in the background of the significant relationship and financial issues NJCX was experiencing at the time, as documented in the clinical notes of the Calvary Mater Hospital.
163. While the termination of NJCX’s employment, and NJCX’s perceptions of unfair treatment, bullying and harassment in ARTC employment, likely contributed to NJCX’s relapse, the relevant probative evidence does not establish the contribution was substantially greater than material. In the context of the causal contribution of NJCX’s relationship, financial and family stresses to the relapse, NJCX’s ARTC employment is a contextual factor in the background, albeit contributing to some degree. I am satisfied the degree to which NJCX’s ARTC employment contributed to the ‘aggravation’ is not ‘to a significant degree’ for the purposes of s 5B(1) of the SRC Act.
164. In conclusion on this point, the ‘disease’ threshold is met to the extent that the ‘aggravation’ of NJCX’s Persistent Depressive Disorder on 18 October 2018 is within the meaning of a ‘disease’ for the purposes of s 5B(1) of the SRC Act. The threshold is not met in respect of aggravation or recurrence of Alcohol Use Disorder in or about mid-December 2018.

Injury

165. The aggravation of NJCX’s Persistent Depressive Disorder on 18 October 2018 will be an ‘injury’ unless the exclusionary proviso in s 5A(1) of the SRC Act is enlivened, or the exclusion in s 7(7) of the SRC Act is made out.

Exclusionary proviso

166. The exclusionary provision in s 5A(1) of the SRC Act is in the following terms:

     (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.

[Emphasis added.]

167. As can be seen, the exclusion applies to a ‘disease’ which includes an ‘aggravation’ of an ailment to which the employment contributed to a significant degree. The correct approach was discussed in Comcare v Martin^[152]:

     Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.

168. What is meant by the term ‘reasonable administrative action undertaken... in respect of the employee’s employment’ was considered in Commonwealth Bank of Australia v Reeve^[153]. An important distinction is drawn between operational or management actions and actions in respect of the particular employee’s employment. Only the latter is within the terms of exclusion.^[154]
169. There is no doubt the termination of NJCX’s employment on 18 October 2018 is an administrative action taken in respect of NJCX’s employment. The action was taken under the terms of NJCX’s employment within the applicable probationary period. Express provision is made for termination of the employment during the probationary period by either party with notice of one week, or payment in lieu. No reason is required to be given for the taking of such action. No findings of unlawful conduct were made in the proceedings before the Fair Work Commission and the Federal Circuit Court.
170. It was objectively reasonable for ARTC to have terminated NJCX’s employment in circumstances where Mr McDonald and Ms Gallasch were concerned about NJCX’s performance during the probationary period, and their performance concerns were sufficient to trigger the termination provisions in NJCX’s employment contract. Considering these factors, I am satisfied the termination of NJCX’s ARTC employment within the probationary period is within the meaning of ‘reasonable administrative action’ taken in respect of NJCX’s employment.
171. It follows the exclusionary proviso will be enlivened if this ‘reasonable administrative action’ was undertaken in a reasonable manner.
172. The threshold of reasonableness must be objectively considered in the particular circumstances. It is not a threshold which imposes a standard of perfection: action taken in a manner which is less than perfect may still be reasonable in the particular circumstances. The question is to be approached applying a qualitative test based on an objective measure of reasonableness, without the benefit of hindsight or asking whether the particular action could have been done more reasonably.^[155]
173. In NJCX’s case, the termination was undertaken by Mr McDonald arranging a ‘Role clarity – performance’ meeting with NJCX at 4.00pm on 18 October 2018. NJCX attended the meeting with NJCX’s terms of employment and, in all likelihood, NJCX comprehended the meeting would be directed to employment issues and performance. In the meeting, Mr McDonald informed NJCX of and provided NJCX an explanation of the reasons for the termination of NJCX’s employment within the probationary period. Mr McDonald gave NJCX a written notice of the termination. NJCX responded to Mr McDonald’s explanation by questioning NJCX’s termination entitlements. Mr McDonald offered NJCX transport from the ARTC premises. After the meeting, Mr McDonald accompanied NJCX until NJCX left the ARTC premises.
174. It is not to the point that the manner in which the termination of NJCX’s employment was undertaken could have been improved. NJCX was taken by surprise to some extent. Mr McDonald did not reply to NJCX’s query about preparation for the ‘Role clarity – performance” meeting. NJCX was not given opportunity to fully understand the matters Mr McDonald and Ms Gallasch had previously decided ahead of the 18 October 2018 meeting (the termination decision was made without NJCX being provided with an opportunity to comment or respond). Furthermore, NJCX was not given an opportunity to attend the meeting with a support person. However, these failings do not render the manner in which the action was taken unreasonable in the circumstances.
175. NJCX asserts the termination action was unfair. Mr McDonald’s failure to give NJCX notice of the termination and a greater opportunity to address the performance concerns he identified might, to some degree, be considered unfair, but Mr McDonald did give NJCX an opportunity to understand and address performance concerns in the context of the meetings he undertook, or attempted to undertake, with NJCX from 13 September 2018 at least. NJCX’s employment was at a senior management level for a probationary period. NJCX had access to sensitive ARTC information in respect of Major Projects and major tenders, and related stakeholders.
176. It was open for ARTC to terminate NJCX’s employment during the probationary period. The manner in which it did so qualitatively and objectively reasonable in the circumstances. The termination action was taken in person in a meeting during which NJCX’s was able to obtain relevant information. The reasons for the termination were explained to NJCX. These were based on a ‘business case’ Mr McDonald prepared and Ms Gallasch approved. NJCX’s pay entitlements were explained. Mr McDonald made reasonable offers of transport support, having accompanied NJCX to collect personal items after the meeting.
177. Mr McDonald’s actions with Ms Gallasch leading to the termination of NJCX’s employment were objectively reasonable. In the circumstances, it was reasonable for the termination of NJCX’s employment to have been undertaken in a summary manner. Considering the contextual circumstances, including the senior management position in which NJCX was employed by ARTC, I am satisfied the termination of NJCX’s employment was ‘undertaken in a reasonable manner’ for the purposes of s 5A(1) of the SRC Act.
178. For these reasons, the exclusionary proviso is enlivened under s 5A(1) of the SRC Act. This means the ‘disease’, namely aggravation of NJCX’s Persistent Depressive Disorder on 18 October 2018, is not an ‘injury’ for the purposes of the SRC Act.

Disease exclusion

179. As NJCX has not suffered an ‘injury’ for the purposes of the SRC Act, it is not necessary to consider the disease exclusion under s 7(7) of that Act.
180. Even so, as the matter was squarely raised in submissions, it is appropriate to make the following observations. The exclusion in s 7(7) of the SRC Act is in the following terms:

     A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

181. The word ‘disease’ in this context refers to a disease in the ordinary sense. Importantly, on a plain reading of the text, the phrase ‘that disease’ refers to the ‘disease’ mentioned at the start of the subsection, namely the disease which is the subject of NJCX’s claim for compensation.^[156]
182. The compensation claim NJCX lodged is expressly in respect of ‘Persistent Depressive Disorder (Dysthymia)’, as stated in answer to question 19 and ‘Persistent depressive disorder, alcohol use disorder’ specified by Dr Jeffrey in the 28 April 2020 medical certificate which accompanied the claim.
183. NJCX signed a declaration in the claim form which includes the following:
     1. I have read and agree to all the information within this form including the privacy statement.
     2. The information that I am providing in this form and in any attachments are an accurate representation of facts and events. I understand that the making of a false or misleading claim, or statement in support of this claim, is punishable by law and I may be prosecuted and can result in Comcare recovering any money they give me.

     ...^[157]

184. The proposition NJCX made a wilful and false representation of not having previously suffered from Persistent Depressive Disorder (Dysthymia) and Alcohol Use Disorder turns on the answer NJCX gave to the following question in the compensation claim form:

     33. Have you ever experienced a similar symptom, injury or illness,

     work-related or otherwise?

     Yes No X ^[158]

185. It is immediately apparent this answer is factually incorrect.
186. NJCX alleges the negative answer was simply a mistake made when completing the compensation claim form. In NJCX’s submission, the mistake was not a ‘wilful and false representation’ when considered in the context of the claim, which includes aggravation of Alcohol Use Disorder (albeit not visible). NJCX asserts the mistake is obvious because the claim in respect of an aggravation of Alcohol Use Disorder clearly discloses the previous Alcohol Use Disorder, contrary to the negative answer.
187. Dr Jeffrey’s 28 April 2020 medical certificate refers to NJCX suffering Alcohol Use Disorder in 2015. There is no reference to ‘aggravation of Alcohol Use Disorder’. Nevertheless, Dr Jeffrey’s disclosure of NJCX suffering Alcohol Use Disorder in 2015 is not consistent with the negative answer NJCX gave to question 33.
188. NJCX argues the Persistent Depressive Disorder arose from circumstances in NJCX’s ARTC employment and, hitherto, NJCX had not previously been diagnosed with that or any other kind of depressive illness and had not previously experienced similar symptoms of ‘depression’. These propositions are not consistent with NJCX allegedly making a mistake when answering question 33 in the claim form. They are also not consistent with the evidence of NJCX experiencing and obtaining treatment for depression, agitation, anxiety and similar symptoms in the past, albeit diagnosed by Dr Dunn as Adjustment Disorders.
189. Question 33 is not directed to a diagnosis but is directed to prior experience of a similar symptom, injury or illness to the ailments under claim. NJCX’s denial of such similar symptoms is singularly unpersuasive. The contemporaneous evidence clearly reveals NJCX experienced previous symptoms described by Dr Barling and Dr Dunn, including depression, which are similar to those described by Dr Jeffrey, Dr Watt, Dr Pothala and Dr McDonald on or after 22 October 2020 in respect of the depressive illness for which NJCX claimed compensation.
190. Furthermore, the diagnosis of Persistent Depressive Disorder or dysthymia by Dr Watt in 2019, which Dr Jeffrey adopted, suggests the existence of chronic or recurring depressive symptoms over a long period. So much is clear on Dr McDonald’s expert evidence. This is consistent with the contemporaneous evidence of NJCX obtaining mental health treatment from Dr Barling and Dr Dunn (among others) from 2013 to 2016, including treatment of depression and anxiety with anti-depressant medication (particularly Cymbalta) from 2015, which Dr Jeffrey continued to prescribed from 2017.
191. The disease Dr Dunn diagnosed as Adjustment Disorders and treated with Cymbalta and Quetiapine prior to 2016 is substantially similar in presentation to the Persistent Depressive Disorder (Dysthymia) diagnosed by Dr Watt and Dr McDonald. Dr Dunn’s diagnosis was made without evidence of a pattern of recurrent relapse at that time, whereas Dr Watt and Dr McDonald recognised the chronicity and recurrent relapse of NJCX’s symptoms over a long period. I am satisfied the mental illness NJCX experienced from 2013, albeit diagnosed as Adjustment Disorders by Dr Dunn, is the likely to be the same illness as that for which NJCX claimed compensation on 28 April 2020.
192. By answering No to question 33 in the claim form and declaring the information to be accurate and true, I am satisfied NJCX made a false representation about not having prior experience of a symptom or an illness similar to that under claim.
193. The question whether the false representation was wilful hinges on NJCX making the false representation knowingly, without any belief it is true,^[159] and purposefully: as Barwick CJ said in Ianella v French,^[160] “It is not merely that the mind goes with the act but that the mind intends by the act to achieve something”.^[161]
194. It is always difficult to assess and ultimately not possible to know with certainty what a person harbours in their secret mind: knowledge they choose to cloak and not reveal. In this case, there is much to suggest NJCX knowingly made the false representation.
195. The medical evidence of Dr Dunn and Dr McDonald establishes NJCX has perfectionist traits. Dr Dunn reported that NJCX became “lost in the fine detail” when asked to complete a BECK depression inventory in 2013.^[162] So much is clear in the extremely detailed, meticulous manner in which NJCX approached, presented and conducted the case, without legal representation. It is reinforced by my observation of NJCX in the witness box. With such perfectionist traits and attention to detail, it is difficult to accept NJCX simply made a mistake in the compensation claim form.
196. I am satisfied that NJCX knew they had a history of mental illness and symptoms which were substantially similar to the Persistent Depressive Disorder (Dysthymia) NJCX specified in the claim form. NJCX’s efforts to distinguish previous diagnoses and symptoms from those under claim reinforce this conclusion. According to the declaration NJCX made in the claim form, NJCX had read and agreed with all the information in the claim. There is no suggestion NJCX did not read all the information in the claim and declare it to be an accurate representation of the facts. That being so, it is probable NJCX made the false representation knowing it was not true. NJCX’s evidence the negative answer to question 33 was a mistake confirms NJCX did not believe the answer to be true.
197. Despite NJCX’s denials, in all likelihood, NJCX’s purpose in doing so was twofold. Firstly, by withholding information about previous mental illness and symptoms, NJCX attempted to withhold information which was potentially adverse to the claim. Secondly, by denying Comcare relevant information, NJCX sought to improve the prospects of the claim being accepted and NJCX obtaining compensation.
198. The somewhat contrived nature of NJCX’s submissions and the extent to which these appear confected with convenience lends support to the proposition the false representation was made knowingly and purposefully.
199. It is an unfortunately common fact that people, even people with perfectionist personality traits, or those with good attention to detail, make simple mistakes. This phenomenon is sharpened in cases involving mental illness, such as in this case. Nevertheless, having carefully weighed the evidence, I am satisfied it is more probable than not that NJCX made a wilful and false representation that NJCX had not previously experienced the disease for which NJCX sought compensation.
200. This conclusion does not change the result. I have found NJCX does not have an ‘injury’ for the purposes of the SRC Act on other grounds. Absent an ‘injury’ there is no basis on which the exclusion under s 7(7) of the SRC Act can apply.
201. Had I come to a different conclusion in respect of the existence of an ‘injury’ under s 5A, such that the ‘disease’ under s 5B was not excluded by operation of the exclusionary proviso in s 5A(1) of the SRC Act, the Persistent Depressive Disorder disease would not be an ‘injury’ by operation of s 7(7) of the SRC Act.

Conclusion

202. In all likelihood, NJCX was suffering from symptoms of Persistent Depressive Disorder prior to commencing ARTC employment in May 2018. In January 2018, NJCX’s symptoms were sufficient for Dr Jeffrey to prescribe pharmacological treatment, namely Cymbalta at the rate of 120mg per day. It was on 22 October 2018 Dr Jeffrey added Diazepam to NJCX’s treatment regimen. I am satisfied this was in response to increased symptoms NJCX suffered at that time as a direct result of the termination of NJCX’s ARTC employment on 18 October 2018.
203. I am satisfied, NJCX’s Persistent Depressive Disorder was aggravated by the termination of NJCX’s ARTC employment and related action on 18 October 2018. The resulting ‘disease’ is not an ‘injury’ for the purposes of the SRC Act because it resulted from reasonable administrative action undertaken in a reasonable manner in respect of NJCX’s employment. Even if the exclusion ion s 5A(1) did not apply, the ‘disease’ is excluded as an ‘injury’ by operation of s 7(7) of the SRC Act.
204. I am satisfied NJCX’s Alcohol Use Disorder relapse in December 2018 was not significantly contributed to by NJCX’s employment.
205. It follows Comcare is not liable to pay NJCX compensation under s 14 of the SRC Act in respect of Persistent Depressive Disorder (or an aggravation of that Disorder) and aggravation of Alcohol Use Disorder. NJCX’s compensation claim is not made out. The decision under review must, therefore, be affirmed.

Decision

206. The decision under review is affirmed.

I certify that the preceding 206 (two hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

........................................................................
Associate

Dated: 7 June 2024

Date(s) of hearing:	20, 21 and 22 March, 12 and 15 April
Counsel for the Respondent:	Ms A Bortone
Solicitors for the Respondent:	Ms S Johnson, HBA Legal

---

^[1] T28, folio 77.

^[2] Ibid.

^[3] Exhibit 1, page 1638.

^[4] Ibid, page 1649.

^[5] Ibid, page 1391.

^[6] Ibid, pages 1650 and 1651.

^[7] Ibid, pages 1383-1384.

^[8] Ibid, page 1386.

^[9] Ibid, pages 1656 to 1660.

^[10] Ibid, pages 1580 to 1590.

^[11] T4, folio 13.

^[12] Exhibit 1, pages 1387-1388.

^[13] Ibid, page 1591; pages 1600-1601 and 1618-1619 refer.

^[14] T5, folios 14 and 15.

^[15] Exhibit 1, page 1349.

^[16] Ibid, page 1597.

^[17] Ibid, page 1594.

^[18] Ibid, page 1441.

^[19] Ibid, pages 1345 and 1346.

^[20] Ibid, page 1634.

^[21] Ibid, page 1344.

^[22] Ibid, page 1441.

^[23] Ibid pages 1439-1441.

^[24] T28, folio 77; Exhibit 1, page 4.

^[25] Exhibit 1, pages 4 and 82.

^[26] Ibid, page 1269.

^[27] Ibid, page 1270.

^[28] T28, folio 78.

^[29] T7.

^[30] Exhibit 1, pages 103-108.

^[31] Ibid, pages 103-104.

^[32] T7, folio 31.

^[33] Exhibit 1, pages 1270-1271.

^[34] See T8, T9, T10, T11, T28, folios 81 to 86, and Exhibit 1, pages 1225-1228, for example.

^[35] T28, folio 86.

^[36] Exhibit 1, page 1231.

^[37] Ibid, page 1232.

^[38] Exhibit 1, page 1271.

^[39] T28, folio 91.

^[40] Exhibit 1, page 1233.

^[41] T28, folio 91.

^[42] Exhibit 1, page 1236.

^[43] See T28, folios 93-95 and Exhibit 1, page 1235-1236.

^[44] T28, folio 95.

^[45] T12, folio 58.

^[46] Ibid.

^[47] T28, folio 96.

^[48] T28, folio 97.

^[49] T13, folio 59.

^[50] Exhibit 1, page 1271-1272.

^[51] Ibid.

^[52] Ibid, page 1273.

^[53] Exhibit 1, page 1403.

^[54] Ibid, pages 1397-1399.

^[55] Ibid, page 1397.

^[56] T15, folio 61.

^[57] T14, folio 60.

^[58] Exhibit 1, pages 1273-1274.

^[59] T17, folio 65.

^[60] T18, folio 66

^[61] T18, folio 68.

^[62] T23, folio 72

^[63] T45.

^[64] T3, folio 9.

^[65] T42.

^[66] T36, folios 113 and 114.

^[67] T41.

^[68] T41, folio 207.

^[69] T43.

^[70] T46.

^[71] T45, folio 236.

^[72] T51.

^[73] T1.

^[74] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51].

^[75] T3, folio 9.

^[76] T43.

^[77] T51.

^[78] Frosch v Comcare [2004] FCA 1642 at [8].

^[79] Abrahams v Comcare [2006] FCA 1829 (Abrahams) at [18].

^[80] Ibid.

^[81] Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33 (Irwin) at [26]; Telstra Corporation Ltd v Kotevski [2013] FCA 27 at [52].

^[82] Re Fuad and Telstra Corporation [2004] AATA 1182 (Fuad) at [4]-[5].

^[83] T3.

^[84] T36, folios 113-117.

^[85] Ibid, folio 10.

^[86] T17, T18 and T20.

^[87] [2006] FCA 1829 at [18].

^[88] T43, folio 231.

^[89] [2004] AATA 1182 at [4]- [5].

^[90] [2009] FCAFC 33 at [26].

^[91] Comcare v Lofts [2013] FCA 1197 at [43]- [44].

^[92] T46.

^[93] Ibid, folios 243-245.

^[94] T47, folio 259.

^[95] Comcare v Mooi [1996] FCA 1587 (Mooi) at [12].

^[96] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May) at [50].

^[97] Wuth v Comcare [2022] FCAFC 42, per Wheelahan J, with whom Griffiths and Snaden JJ agreed, at [110]; May at [57].

^[98] Mooi at [12]-[14].

^[99] T45, folio 236.

^[100] Exhibit 1, page 373.

^[101] Exhibit 1, page 371.

^[102] T45, Exhibit 1, pages 370-376 and 1337-1343, Exhibit 5.

^[103] See Exhibit 1, pages 371-373, for example.

^[104] T27, folio 76.

^[105] Exhibit 1, page 1384.

^[106] T5, folio 14.

^[107] Exhibit 1, page 1441.

^[108] Ibid, page 1634.

^[109] Ibid, page 1441.

^[110] Ibid, page 1440.

^[111] Ibid, page 1439.

^[112] Ibid, page 1269.

^[113] Ibid, page 1270.

^[114] Exhibit 3, page 1, paragraph 2 refers.

^[115] See T30, folio 102; T31, folio 104; and Exhibit 1, pages 1271-1273 for example.

^[116] Exhibit 1, pages 10-48 for example.

^[117] Ibid, pages 1240-1250 for example.

^[118] Ibid, pages 10-21.

^[119] Ibid, page 16.

^[120] Ibid, page 17.

^[121] Ibid, page 21.

^[122] Ibid, page 1224.

^[123] Ibid, page 1226.

^[124] Ibid.

^[125] Ibid, page 1227.

^[126] Ibid, page 1227.

^[127] Ibid, page 1228.

^[128] Ibid, page 1241.

^[129] Exhibit 1, page 1229.

^[130] Ibid, page 1231.

^[131] Ibid, page 1232.

^[132] Ibid, page 27.

^[133] Ibid.

^[134] Ibid, page 29.

^[135] Ibid, page 32.

^[136] Ibid.

^[137] Ibid, page 1233.

^[138] Ibid.

^[139] Ibid, page 33.

^[140] Ibid, page 1234.

^[141] Ibid, page 1235.

^[142] Ibid, page 35.

^[143] Ibid, page 1235.

^[144] Ibid, pages 1235-1236.

^[145] Ibid, page 38-341.

^[146] Ibid, pages 1271-1272.

^[147] Ibid, see pages 1272-1273 and page 1397 for example.

^[148] Exhibit 1, pages 1262-1505.

^[149] Exhibit 1, page 1274.

^[150] Exhibit 1, pages 424-1437.

^[151] Exhibit 1, pages 1428 and 1431, for example.

^[152] [2016] HCA 43 at [47].

^[153] [2012] FCAFC 21, per Gray J at [31]-[33], and Rares and Tracey JJ at [57], [60] and [74].

^[154] Comcare v Drinkwater [2018] FCAFC 62 at [51].

^[155] Comcare v Stewart [2019] FCA 365 at [68].

^[156] National Bank of Australia v Georgioulas [2013] FCA 1412 at [73].

^[157] T3, folio 8.

^[158] T3, folio 10.

^[159] Griffiths v Australian Postal Corporation [2018] FCA 520 at [41].

^[160] [1968] HCA 14.

^[161] Ibid at [24].

^[162] Exhibit 1, page 1383.