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Zoric v Australian Postal Corporation [2006] FCA 1349 (13 October 2006)
Last Updated: 17 October 2006
FEDERAL COURT OF AUSTRALIA
Zoric v Australian Postal Corporation
[2006] FCA 1349
DAVID
ZORIC v AUSTRALIAN POSTAL CORPORATION
VID 756 OF
2006
NORTH J
13
OCTOBER 2006
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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ON
APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR. B.H. PASCOE,
SENIOR MEMBER
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AND:
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AUSTRALIAN POSTAL
CORPORATIONRespondent
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal is
dismissed.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR.
B.H. PASCOE, SENIOR MEMBER
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REASONS FOR JUDGMENT
| 1 | This is an appeal bought by
Mr Zoric, the appellant, against a decision of the Administrative Appeals
Tribunal made on 21 June
2005. The tribunal affirmed six determinations made by
the Australian Postal Corporation, the respondent, under the Safety,
Rehabilitation and Compensation Act 1998 (Cth) (the Act). The
determinations related to claims by the appellant for compensation under the Act
for an injury to the appellant’s
left shoulder, plantar fasciitis and work
stress. |
BACKGROUND FACTS
| 2 | The appellant started work for
the respondent in 1984 at the Clayton South mail centre. He was transferred to
Dandenong in 1999. |
| 3 | On 29 October 1999, the
appellant suffered a left shoulder injury while lifting bags of mail and tipping
them onto a belt. The respondent
accepted liability for the claim for this
injury on 9 February 2000. However, it determined on 17 September 2002, 4
October
2002, and 19 November 2002 that the appellant was able to return to
full hours of work from 9-16 September 2002, 17-20
September 2002, and
after 21 September 2002 respectively. It further determined, on 29 May 2003,
that it was not liable to pay compensation
for the injury after 30 May 2003.
The tribunal’s reasons in affirming these four determinations were not
part of the subject
of this appeal, except as they related to the
appellant’s claim of ostensible bias by the
tribunal. |
| 4 | In July 2002, the appellant lodged
a claim for aggravation of left and right plantar fasciitis. Liability for this
claim was accepted
on 2 September 2002. On 22 July 2003, the respondent
determined that the appellant had been able to work full time on restricted
duties on and from 12 July 2002. This determination was part of the subject of
this appeal. |
| 5 | The final determination which is
the subject of this appeal was made on 7 November 2002 in relation to the
appellant’s claim
for work stress made on 23 September 2002. The tribunal
affirmed the determination that the respondent was not liable to pay
compensation
for work stress. |
| 6 | The appellant
appeals against the tribunal’s decision in respect of the work stress
claim and the impact of pain from plantar
fasciitis, and alleges that the
tribunal’s reasons for decision in their entirety disclose ostensible bias
against the appellant. |
THE WORK STRESS
CLAIM
The evidence before the tribunal
| 7 | The tribunal first set out the
evidence of each of the witnesses called at the hearing on this issue. In
summary, the evidence was
as follows. The appellant said that he had frequent
problems with supervisors and managers who did not like the work restrictions
placed on him following his shoulder injury. They asked him to perform work
outside these restricted duties. The relevant managers
and supervisors denied
these allegations. The appellant disputed a complaint by Mr McShane, a
production coordinator, relating
to alleged excessive time taken for a toilet
break. Many instances of complaints from 1984 were put to the appellant in
cross-examination
concerning his attitude towards work, his absence from his
position, non-compliance with directions and harassment of female staff.
The
appellant said he was not aware of many of the complaints and maintained he had
a good relationship with other staff. |
| 8 | A
major part of the evidence and of the appellant’s claim related to the
events of 6 September 2002. The appellant said
he was instructed by
Mr Aiello, an area coordinator, to go to area 3 to work. The appellant
considered such an instruction
should come only from his team leader and he
believed that most tasks in area 3 were outside his physical restrictions.
Consequently,
he did not go. Mr Aiello then instructed him to go to the
office of Mr McShane who told him to go to another area of work.
The
appellant said there was no available work in that area so he returned to his
original place. |
| 9 | Mr Aiello gave
evidence that he had given instructions to the appellant’s team leader to
work in area 3. He noticed that
the appellant was missing at about 3.00 pm.
Over one hour later, the appellant had still not reported to area 3 so
Mr Aiello
made an announcement over the public address system requesting
the appellant to report to area 3. The appellant appeared and sat
down in
another area. Again Mr Aiello asked the appellant to go to area 3 and
again the appellant did not do so. Mr Aiello
then spoke to
Mr McShane, the production coordinator. Mr McShane asked the
appellant to come to his office to discuss
the problem. Mr McShane said
that the appellant said that he did not need a witness as, "Who will I get
around here?" Mr McShane
also said that the appellant denied refusing
instructions and said that he could not be asked to work with "those people
–
they don’t like me". Mr McShane said that he adjourned the
discussions for further enquiries in view of the appellant’s
denial.
|
| 10 | There was a second incident on the same
evening. The appellant asked Mr McShane if he could work overtime that
evening and Mr McShane
agreed. The appellant said that at 10.30pm he went
to make a telephone call to check on his ill father on the understanding that
he
had ongoing permission to make such calls during working hours. He was waiting
for a telephone to become vacant when Mr Osborne,
the production coordinator of
the night shift came past and accused him of watching television, which was in
the same area. Mr Osborne
instructed him to work on the Toshiba machine. At
11.25pm, Mr Osborne instructed the appellant to go to Mr Osborne’s
office for a warning counselling for watching television during working hours.
The appellant said that no union representative was
present and, at 11.30pm he
told Mr Osborne that he was leaving to go home.
|
| 11 | In relation to the above incident,
Mr Osborne gave evidence of noticing the appellant watching television, and
the appellant
agreeing that he was not on a break. The appellant made no
mention of waiting for the telephone. Mr Osborne said that he told
Mr McShane of his meeting with the appellant, and Mr McShane advised
him that he had counselled the appellant previously
that same day.
Mr Osborne said that he felt further counselling was warranted and he
called the appellant to his office. He
said that the appellant was abusive and
left his office within approximately five minutes. He denied that the appellant
had said
that he had permission to use the telephone and was waiting for it to
be free. |
| 12 | Mr Alegre was the shift
production manager and gave evidence that permission was given to employees for
the use of the telephone
in working hours for urgent calls and this was obtained
normally from the team leader and coordinated with the supervisor. It was
not
policy to give a general approval for ongoing use of the telephone and
permission was required for each separate
occasion. |
| 13 | On 9 September 2002 the appellant
wrote a formal letter of complaint alleging humiliation, bullying and harassment
by Mr McShane,
Mr Aiello and Mr Osborne. This complaint was
investigated by a three member enquiry team chaired by Mr Butler, the
human
resources manager at the Dandenong letter centre. On 6 November 2002, a formal
report was made by the team which found that
there was no proof of harassment or
bullying by management representatives. The enquiry also found that there was
no open ended
approval for the appellant to use the telephone during working
hours and there was no reason why he could not have telephoned his
father during
his break. The enquiry found that he was watching television at times he was
supposed to be working on overtime and
that he was spoken to on two separate
occasions about this on the night of 6 September 2002. The enquiry found that
telephone records
indicated that no one was using the telephone in the period
when the appellant claims that he was in the break out area waiting to
use the
phone. His claim in that regard was false. The enquiry also found that on 6
September 2002, the appellant refused a reasonable
instruction to work in an
area in which he was required to be working. After making further several
specific findings the enquiry
concluded: |
It is our view that as he has elected not to be part of a team and clashed
with a number of managers beside those named in his complaint
that has
contributed to managers questioning him as to what work he was
performing.
We are satisfied that there were breaches of the Code of Ethics on 6
September 2002 and that Warning Counsellings were warranted.
...
| 14 | Later in
the decision the tribunal set out the evidence of the two psychiatrists who gave
evidence concerning the work stress claim.
The tribunal stated:
|
26. Dr G. Hogan is a psychiatrist to whom Mr Zoric was referred by
Dr Lane and who first saw Mr Zoric on 6 December
2002. He continues
to see Mr Zoric on a monthly basis. In a report dated 17 April
2003.[sic] Dr Hogan diagnosed adjustment disorder with
depressed mood. Based on the history given by Mr Zoric, Dr Hogan
believed that the condition was the result of the injuries to the left
shoulder
and both feet and the hostile behaviour of a series of managers and the threat
of disciplinary action on 6 September 2002.
In his oral evidence, Dr Hogan
said that, from a psychiatric point of view, Mr Zoric was ready to make a
graduated return
to work by April 2003, but could not recall if he had been of
that view any earlier. He believed that Mr Zoric had coped since
his
return to work in late 2003. Dr Hogan accepted that Mr Zoric was of a
"querulous temperament" and the problem could be supervisors reaction to
him rather than only Mr Zoric’s reaction.
27. Dr L. Walton, a psychiatrist, examined Mr Zoric at the request
of the respondent on 29 March 2004. He agreed with Dr Hogan
that the
appropriate diagnosis is that of a chronic adjustment disorder with anxiety and
depressed mood. He took a history from
Mr Zoric of complaints against him
from 1995 culminating in the events of September 2002 and noted references in
his personnel
file supplied by the respondent to many critical comments
commencing in 1984. Dr Walton identified other stressors in
Mr Zoric’s
life, including the death of his mother in 2000 and
difficulties with his father with whom Mr Zoric lives. In a supplementary
report of 13 August 2004 after reviewing Mr Zoric’s personnel file,
Dr Walton stated:
...
If it is established that Mr Zoric has behaved in the manner alleged over
the years, then that implies difficulties residing
within his personality,
especially in relation to interpersonal dealings. I doubt that these could be
said to be so advanced as
to warrant application of a diagnostic label of
personality disorder but the situation will result in Mr Zoric experiencing
repeated episodes of conflict with fellow workers and supervisors. That has
implications in terms of elevating the risk of he [sic]
suffering from an
adjustment disorder in response to what he perceives to be adverse circumstances
and which subjectively, as he
reports, would be experienced as stressful.
Clearly the structure of this man’s personality is not a work-related
phenomenon
but it does imply a degree of vulnerability towards developing an
imposed psychiatric disorder, work-related or otherwise.
The legal issues before the
tribunal
| 15 | Compensation under the Act is
payable in respect of an injury suffered by a claimant. Section 4(1) of the Act
defines the concept
of ‘injury’ and provides an exception as
follows: |
...
"injury"
means:
(a) a disease
suffered by an employee;
or
(b) an injury
(other than a disease)
suffered by an employee,
being 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), being an aggravation
that arose out of, or in the course of,
that employment;
but does not include any such disease,
injury
or aggravation
suffered by an employee
as a result of reasonable disciplinary action
taken against the employee
or failure by the employee
to obtain a promotion, transfer or benefit in connection with his or her
employment.
...
This definition is elaborated by the following:
...
"disease" means:
(a) any ailment
suffered by an employee;
or
(b) the aggravation
of any such ailment;
being an ailment
or an aggravation
that was contributed to in a material degree by the employee’s
employment by the Commonwealth
or a licensed
corporation.
...
"ailment" means any physical or mental ailment,
disorder, defect or morbid condition (whether of sudden onset or gradual
development).
...
| 16 | The
tribunal affirmed the respondent’s rejection of the work stress claim on
two grounds. First it found that the appellant
did not suffer the stress
alleged (the injury issue) and second it found that, if he did so, the stress
was suffered as a result
of reasonable disciplinary action taken against them
(the reasonable disciplinary action issue). Each of these conclusions raises
separate grounds of appeal, and each will be dealt with separately.
|
The injury issue – reasoning of
the tribunal
| 17 | In relation to the injury
issue, the tribunal concluded: |
30. The final injury alleged was "work stress" for which liability was
denied in the reviewable decision dated 3 January 2003, which affirmed the
earlier determination made on
7 November 2002. The allegation of Mr Zoric
was that he was harassed and bullied by various officers of Australia Post
culminating
in the events of 6 September 2002. On the evidence of Mr Zoric
and the various officers of the respondent, including the formal
findings of
6 November 2002, I am satisfied that Mr Zoric was not harassed,
bullied or requested to perform duties outside
his rehabilitation program in
relation to his shoulder and feet. I am satisfied that Mr Zoric has the
personality described
by both Dr Hogan and Dr Walton who readily
alleges harassment to avoid performing duties which he does not wish to perform
and to avoid complying with instructions properly given to him by his
supervisors. The psychiatric evidence does not satisfy me
that the events of 6
September 2002 caused the diagnosed psychiatric condition. ...
The injury issue – argument on the
appeal
| 18 | The central question of law
argued at the hearing was stated in the amended notice of appeal as
follows: |
Whether the Tribunal applied the wrong approach to the resolution of the
issue of causation of injury under s.4(1) of the Safety, Rehabilitation and
Compensation Act 1988 ("the Act") in affirming the determination set out in
1(c)
above.
| 19 | The
ground of appeal was stated as follows: |
In determining whether a work stress injury had been caused to the Applicant
the Tribunal had to consider not only whether, objectively,
the Applicant had
been subjected to harassment from October 1999 to 6 September 2002 but, if not,
whether the Applicant genuinely
perceived himself to have been subjected to
harassment over the period and on 6 September 2002. The Tribunal failed to make
this
further deliberation (see paragraph 30 of the Reasons).
| 20 | In the written
submissions filed by the appellant, this question of law was linked with another
question of law stated in the amended
notice of appeal as
follows: |
Whether [sic] Tribunal failed to make any finding in respect of the
existence and/or nature of the work stress injury alleged by the applicant as
it
was required to do in affirming the determination set out in 1(c) above.
| 21 | The ground of
appeal in relation to this question was stated as
follows: |
Before the Tribunal could affirm the determination that the Respondent was
not liable for claimed work stress it was incumbent upon
the Tribunal to make a
finding as to what if any work stress injury the Applicant had suffered. To
find, as it did, that work on
6.9.02 did not cause the chronic adjustment
disorder with anxiety and depressed mood says nothing as to whether work on
6.9.02 aggravated
the chronic adjustment disorder within the meaning of
"ailment" or "injury" as defined in s.4(1) of the Act.
| 22 | In the
appellant’s written submissions, the findings which the tribunal was said
to have failed to have made were set out as
follows: |
The Tribunal made no findings as
to:-
(a) whether the applicant’s injury and incapacity had been caused by a
work-related perception of victimisation due to being
on a rehabilitation
program;
(b) whether the applicant’s injury and incapacity had been caused by
the work-related left shoulder injury and/or plantar fasciitis;
(c) whether the applicant’s underlying personality as a disease or part
(c) defined injury had been aggravated in accordance
with the respective
statutory definitions;
(d) how, if there was otherwise an "injury" within the meaning of the Act,
the Tribunal was satisfied that it was a result of "reasonable disciplinary
action", including no findings as to precisely what
was the reasonable
disciplinary action.
During the hearing, Mr McCredie, who appeared as
counsel for the appellant, revised the wording of (c) to read:
(c) whether the applicant’s underlying personality, as found, had been
aggravated in accordance with the statutory definitions
of disease or a part (c)
defined injury;
| 23 | Mr
McCredie argued in relation to these two questions of law that the tribunal had
failed to address the primary argument of the appellant,
namely, that the
appellant genuinely believed that he was harassed and bullied and asked to
perform duties outside his rehabilitation
program. It was immaterial to this
argument whether the perception was correct or not. All the appellant had to
show was that the
perception existed. |
| 24 | This
argument rested on a particular interpretation of the passage from the
tribunal’s reasons extracted in [17] of these reasons.
Mr McCredie
contended that the tribunal dealt with and rejected the allegation that the
appellant was harassed, bullied and required
to do work outside his
rehabilitation program. This was done expressly in the following sentence:
|
On the evidence of Mr Zoric and the various officers of the respondent,
including the formal findings of 6 November 2002,
I am satisfied that
Mr Zoric was not harassed, bullied or requested to perform duties outside
his rehabilitation program in
relation to his shoulder and feet. ...
| 25 | The tribunal
continued: |
... I am satisfied that Mr Zoric has the personality described by both
Dr Hogan and Dr Walton who readily alleges harassment
to avoid
performing duties which he does not wish to perform and to avoid complying with
instructions properly given to him by his
supervisors. The psychiatric evidence
does not satisfy me that the events of 6 September 2002 caused the diagnosed
psychiatric condition.
...
| 26 | Mr McCredie
contended that these sentences did not answer the perception case made by the
appellant. Consequently, the tribunal failed
to address the cause of the injury
upon which the appellant relied, and thereby erred in law. Mr McCredie
submitted that it was
not possible to give any sensible meaning to the two
sentences. He read the first sentence as summarising the opinions of Dr Walton
and Dr Hogan. If this were so, he contended, the summary of those opinions was
factually incorrect because it did not reflect the
actual opinions of the two
psychiatrists. |
| 27 | Beyond revising [(c)]
referred to in [22] of these reasons, Mr McCredie did not specifically address
the allegation that the events
of 6 September 2002 aggravated the
appellant’s underlying
personality. |
The injury issue –
consideration
| 28 | The appellant’s
argument is not sustained on a proper reading of the two sentences extracted in
[25] of these reasons. In those
sentences, the tribunal addressed and rejected
the perception argument. The key to understanding the meaning of the decision
on
this issue is to recognise that in the second part of the first sentence the
tribunal expressed its own view of the appellant’s
personality. As it was
not referring to the psychiatrist’s view of his personality, it did not
misstate those views. The
tribunal had already found that the harassment did
not occur in fact. In the first sentence the tribunal made a further finding
that the appellant made allegations of harassment for his own purposes. In the
two sentences the tribunal rejected the appellant’s
case that he held the
perception that he was being victimised, and accepted the case of the respondent
that the appellant did not
have any such perception. Read in this way the
decision resolved the contending arguments which had been addressed to the
tribunal.
The appellant’s reading of the decision necessitates the
unlikely conclusion, as was submitted by the appellant, that the
two final
sentences are a meaningless jumble. Further, implicit in the tribunal’s
finding that the events of 6 September
2002 did not cause the diagnosed
psychiatric condition is the finding that those events did not aggravate the
appellant’s underlying
personality. Undoubtedly, the tribunal expressed
itself on the issues economically. Mr Moulds, who appeared as counsel for the
respondent, suggested that the tribunal may have had good reason to couch its
conclusion in somewhat indirect terms because the appellant
and respondent were
in a continuing employment relationship. The tribunal may have thought it was
desirable to avoid inflaming the
situation by strident and direct findings.
|
The reasonable disciplinary action
issue – reasoning of the tribunal
| 29 | In relation to the reasonable
disciplinary action issue, the tribunal concluded as
follows: |
30. ... However, even if it could be said to be the cause, I am satisfied
that such condition was a result of reasonable disciplinary
action taken against
the employee. The applicant relies on the dicta in Comcare v Chenhall
(1992) 37 FCR 75 at 84 where it was said that "...action taken to determine
whether or not disciplinary action will be taken against an employee, although
it may be characterised
as part of a system or process to maintain discipline,
is not action within the meaning of the definition". However, in that case
the alleged psychiatric condition was said to have resulted from an interview
related to possible criminal
offences of an employee of the Australian Federal
Police and prior to any finding or determination to undertake disciplinary
action.
Here the various actions which took place on 6 September 2002 were the
result of several breaches of conduct by Mr Zoric.
As was the view of the
Tribunal in Re Rizkallah and Australian Postal Corporation (1991) 23 ALD
517 and Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83, I
am of the view that disciplinary proceedings do not need to result in specific
and identifiable punishment to
be "reasonable disciplinary action." In
this case Mr Zoric failed on several occasions to obey an instruction and
was required to attend warning counselling and,
subsequently, was absent from
his work without reasonable excuse with a requirement for a second warning
counselling. In both cases,
Mr Zoric’s actions in refusing to
discuss the complaints and walking out of the meeting meant that the normal
processes
were not able to be properly concluded. Nevertheless, the complaints
against him, the requirement to attend two sessions on the
one day and the
results of those sessions constituted in the particular circumstances of this
case "reasonable disciplinary action". As in Scalzo (supra), I am
satisfied that any psychiatric injury was brought on by Mr Zoric’s
own misconduct.
The reasonable disciplinary action issue –
arguments on the appeal and consideration
| 30 | The question of law raised in
the amended notice of appeal was expressed in the following terms:
|
Insofar as the applicant’s case was based on injury arising out of or
in the course of employment and/or contributed to in a
material degree by
employment on 6 September 2002 whether the Tribunal erred in construing the
actions taken by officers of Australia
Post in respect of warning counselling as
"disciplinary action" within the meaning of the proviso to section 4(1) of the
Act.
| 31 | The grounds of
appeal elaborate the scope of the question as
follows: |
The only actions alleged to be taken by employees of the Respondent that are
alleged to satisfy the requirement of "disciplinary action"
are two purported
Warning Counsellings alleged to have occurred on 6.9.02. It is the
Applicant’s contention that at the stage
of each of the alleged Warning
Counsellings they had not passed beyond the "investigative stage". There was no
evidence that a finding
of breach of the Code of Ethics had occurred on 6.9.02.
| 32 | The appellant
submitted that there was no evidence which supported the conclusion of the
tribunal that the warning sessions held on
6 September 2002 fell within the
statutory definition of disciplinary action. Rather, the evidence demonstrated,
so it was contended,
that Mr McShane and Mr Osborne had only embarked on an
investigation as to whether disciplinary action should be taken against the
appellant. |
| 33 | Mr McCredie rightly accepted
that, for the purposes of this argument, the evidence had to be viewed at its
most favourable to the
respondent. On this basis, the argument is untenable.
It is not necessary to refer to any other evidence than the written Warning
Counselling interview form prepared by Mr Osborne in relation to the second
interview held on 6 September 2002. That document sets
out the course which the
interview followed. First, Mr Osborne made the accusation that the appellant
was watching TV during working
time, when Mr Osborne required the appellant to
spend his overtime on work duties. The appellant responded in a hostile way and
stated that he could not be touched because he was on compensation. These
exchanges in the context of an interview called a Warning
Counselling indicate
that disciplinary action was underway. The matter is put beyond doubt by the
reference in the document to the
warning procedure as follows:
|
Warning
Explain to the employee the importance of achieving and maintaining
satisfactory conduct and warn the employee that the consequences
of further
instances of misconduct during the next 12 months may lead to an immediate
Inquiry which could result in his/her dismissal
or transfer.
| 34 | Beside this
printed instruction was the hand written notation done earlier. The
notation probably relates to an earlier hand written entry on the form as
follows: |
Mr Zoric had been made aware, by Damian McShane, that when on a Warning
Counselling, any further breaches of conduct require further
disciplinary
action.
Standing alone this evidence is capable of supporting the
tribunal conclusion that disciplinary action was taken against the appellant
by
the conduct of the Warning Counselling interviews on 6 September 2002.
| 35 | The appellant sought to add a
further question of law to the amended notice of appeal in the following
terms: |
Whether the Tribunal failed to consider if the disciplinary action as found
was "reasonable" as required under the proviso to section 4(1) of the
Act.
| 36 | Before the
tribunal, an argument concerning the reasonableness of the disciplinary action
arose for the first time in the appellant’s
written submissions in reply.
In these submissions the appellant relied on a requirement set out in a document
entitled Employee Counselling and Discipline Process that in preparation
for a warning counselling the person responsible must inform the employee in
writing of [the] arrangements [for the time and place for counselling], details
of the alleged breach(es) of
the Code of Ethics that will be discussed and that
the employee may bring one other
person. |
| 37 | Before the tribunal, the
appellant argued that the process adopted against the appellant was unreasonable
because he was not given
notice in writing of arrangements for the time and
place for counselling, and of details of the alleged breaches of the Code of
Ethics
and that he could bring along another person. Mr McCredie conceded that
the submission before the tribunal was based on an erroneous
view that the
document outlining the processes had been admitted into evidence before the
tribunal. In fact it had not been. He
accepted that he was unable to advance
an argument before this Court that there was evidence before the tribunal that
there was a
requirement for written notice as contained in the document.
Further, because the argument was made at the very end of the case,
the question
of reasonableness was not canvassed with any of the witnesses either in
examination in chief or in cross
examination. |
| 38 | Notwithstanding this state of
affairs, Mr McCredie submitted that the tribunal was bound to consider whether
the conduct of the interview
was unreasonable in the absence of written notice
of arrangements for the time and place of counselling, of details of the alleged
breaches of the code of ethics, and that the appellant could bring another
person with him. |
| 39 | The tribunal stated its
conclusion that the circumstances of this case constituted reasonable
disciplinary action. There is no reason
to conclude that the tribunal failed to
consider the question of reasonableness of the disciplinary action. The
argument about reasonableness
was raised in reply at the last opportunity in the
proceeding before the tribunal and without any evidentiary support. It is not
surprising that the tribunal expressed its conclusion without elaboration. It
was not obliged to do more. |
THE
PLANTAR FASCIITIS CLAIM
| 40 | One final claim was stated in
the amended notice of appeal as follows: |
Whether the Tribunal erred by failing to consider whether the applicant
suffered incapacity for full-time work as a result of the
effect of pain
resulting from the plantar fasciitis upon his mental state in affirming the
determination set out in 1(f) above.
| 41 | The
appellant’s written submissions stated as
follows: |
The Tribunal did not address the primary contention made on behalf of the
applicant that partial incapacity caused by the plantar
fasciitis was supported
by Dr Walton as arising from the combination of on-going pain and mental
disturbance (at paragraph 27-30
of the applicant’s submissions dated
1.2.05). Its findings were limited an acceptance of medical evidence that from
a physical
perspective the applicant could perform full-time duties with
restrictions (paragraph 25 of the Reasons). Having regard to the way
in which
the applicant’s case was presented the Tribunal was required to make a
finding rejecting the applicant’s submissions
by reference to the evidence
and other material on which it relied.
| 42 | At the hearing,
Mr McCredie contended that the tribunal failed to consider the impact of pain
from the plantar fasciitis on a man
with a psychiatric condition and failed to
consider the psychiatric evidence to that effect. In his submissions before the
tribunal,
the appellant relied on the evidence of Dr Walton
that: |
... ongoing difficulty sustaining concentration [was] the most relevant
psychiatric symptom compromising his work capacity. He is
now working fours
hours per day and I believe it would be quite reasonable for there to be a
graduated program towards increasing
his hours of work, although with the
combination of his ongoing pain and mental disturbance, there would have
to be some doubt as to whether or not he will achieve full work capacity again.
[original emphasis]
| 43 | The tribunal
accepted the evidence of three doctors that the appellant was fit for restricted
duties on a full time basis after 12
July 2002 in relation to the plantar
fasciitis claim. It also noted that the two doctors that certified the
appellant to be unfit
for such duties did so without objective evidence and
based solely on the word of the appellant. The tribunal made an assessment
that
the appellant had been fit for restricted duties based on the evidence before
it. It was entitled to accept that evidence.
By doing so, it implicitly
rejected the appellant’s argument that any ongoing pain and mental
disturbance felt by the appellant
prevented him from returning to
work. |
ILLEGITIMATE USE OF
HEARSAY
| 44 | The question of law stated in
the amended notice of appeal was: |
Whether the Tribunal erred in relying on the hearsay evidence contained in
the report dated 6 November 2002 in affirming the determination
set out in 1(c)
above.
| 45 | In the course of
the hearing before the tribunal, the respondents sought to tender the report of
the three member enquiry headed by
Mr Butler. The report contained findings
including that the phone records of 6 September 2002 indicated that nobody was
using the
phone at the time the appellant was in the area claiming to be waiting
for the phone. The appellant objected to the tender on the
ground that the
report contained hearsay. The respondent conceded the objection and the report
was admitted on the basis that it
was not evidence of the hearsay contained in
the report. |
| 46 | In its summary of the evidence
before it, the tribunal recorded the fact that the enquiry was held. Further,
the tribunal set out
the findings made by the enquiry including the finding that
the phone had not been used at the relevant time, and, consequently,
that the
claim by the appellant that he had been waiting to use the phone was false.
|
| 47 | Then, in its conclusion, the tribunal said:
|
30. ... On the evidence of Mr Zoric and the various officers of the
respondent, including the formal findings of 6 November 2002,
I am satisfied
that Mr Zoric was not harassed, bullied or requested to perform duties outside
his rehabilitation program in relation
to his shoulder and feet. ...
| 48 | The appellant
argued that, in this passage, the tribunal relied on the facts on which the
enquiry based its findings to support the
tribunal determination that the
appellant had not been victimised. Therefore, the tribunal made use of
information that had not
been admitted as evidence of the truth of the facts,
and in particular, the facts relating to the non-use of the phone at the time
when the appellant was spoken to by Mr Osborne.
|
| 49 | This argument should not be accepted
because it reads into the reference to the findings of the enquiry more than the
tribunal said.
In the context of the proceeding before the tribunal, it is
clear that the tribunal used the findings of the enquiry as a confirmation
of
the view it had formed from the oral evidence given at the hearing. The people
alleged to have been involved in the victimisation
of the appellant, Mr McShane,
Mr Aiello, and Mr Osborne, all gave evidence to the tribunal. That evidence and
the evidence of the
appellant, was referred to by the tribunal as the material
from which its conclusion was drawn. In that context, the reference to
the
findings of the enquiry should not be read as reliance by the tribunal on the
hearsay evidence contained in the report of the
enquiry, but rather as a
reference to the fact that the enquiry had come to the same conclusion as the
tribunal. |
OSTENSIBLE BIAS
| 50 | The appellant contended in
the amended notice of appeal: |
The Tribunal’s reasons for decision disclose ostensible bias against
the applicant in :-
(aa) Demonstrating annoyance and frustration with the applicant and/or his
legal advisers in the conduct and responsibility for the
delay in the
hearing.
(bb) Finding, based on a misconception of and contrary to the evidence of Dr.
Hogan and Dr. Walton that the applicant has a personality
"who readily alleges
harassment to avoid performing duties which he does not wish to perform and to
avoid complying with instructions
properly given to him by his
supervisors".
(cc) In the extraordinary circumstances set out in (aa) and (bb) failing to
expressly state that the Tribunal has itself been mindful
of excluding
irrelevantly prejudicial matters from its considerations.
(dd) Finding gratuitously that the Tribunal was not satisfied on the balance
of probabilities that the left shoulder injury was necessarily
work-related.
(ee) Making the gratuitous observation that there must be some doubts as to
the work-related nature of the accepted claim for plantar
fasciitis.
(ff) Referring in its reasons to complaints against the applicant arising
from his employment dating back to 1984 put to him in cross-examination,
without
making findings or comment as to the relevance of the evidence in reaching its
deliberations.
(gg) Making the errors of law identified in paragraphs (a) to (h) above.
| 51 | Ostensible bias
will be found where a fair minded observer would conclude from the circumstances
alleged that the tribunal might not
bring an unbiased mind to the task of
decision making: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR
337 at [6]. |
| 52 | Ordinarily ostensible bias is
established by reference to the way in which a proceeding is conducted. But, in
this case, ostensible
bias is said to be established from the reasons of the
tribunal. Mr McCredie recognised that it was a difficult task to establish
ostensible bias simply from the fact that the tribunal decided issues against
the appellant. He therefore placed most emphasis on
the matters referred to in
(dd) and (ee) set out in [50] of these reasons. As he did not abandon reliance
on the other factors,
I will deal with them shortly.
|
| 53 | The passage which gives rise to the ground
in (aa) is as follows: |
At the hearing, the applicant, Mr D Zoric, was represented by Mr S. McCredie
of counsel. The respondent, Australian Postal Corporation,
was represented by
Mr A. Moulds of counsel. It should be noted that the hearing took over one year
to complete. The applications
for review were made in 2003, and a hearing was
scheduled to commence on 27 January 2004. On that day, the applicant sought an
adjournment
in order to obtain a further medical opinion in relation to the most
recent reviewable decision. Although opposed by the respondent,
the Tribunal
adjourned the hearing. At a hearing rescheduled for 2 August 2004, Mr McCredie
was not available and Mr J. Gaffney
of counsel, on behalf of the applicant,
requested a further adjournment on the grounds that his instructing solicitor
had not received
the complete file from the law firm previously acting for the
applicant. After a period of private discussion between the parties,
the
hearing was adjourned to the next day, 3 August. As the hearing could not be
completed, a further three days were listed, from
13 to 15 December 2004. On 13
December 2004, again, Mr McCredie was said to be unavailable and neither he nor
Mr Zoric was in attendance.
After a refusal to further adjourn the hearing and
a warning of possible dismissal of the applications, the applicant and his
counsel
arrived at the Tribunal, but the hearing could not be commenced before
1:45 p.m. Again, the hearing was not completed within the
scheduled time and a
further day on 18 January 2005 was listed. At the conclusion on that day the
parties were directed to provide
written submissions, the last of which was
received by the Tribunal on 23 February 2005.
| 54 | Mr McCredie
accepted that this passage was factually correct and that the tribunal had good
reason to be frustrated with the conduct
of the proceeding by the appellant. It
was probably desirable for the tribunal to explain why the hearing took about
one year to
complete. A fair-minded observer would not conclude from these
comments that the tribunal might not bring an unbiased mind to the
determination
of the case. |
| 55 | The allegation in (bb) relies
on an incorrect reading of the decision of the tribunal as explained in these
reasons at [28]. The
allegation in (cc) cannot be sustained in the face of the
rejection of the allegation in (bb). |
| 56 | The
allegation in (ff) relates to the following passage in the reasons of the
tribunal: |
Many instances of complaints against Mr Zoric and need for counselling from
1984 were put to Mr Zoric in cross-examination. These
complaints related to his
attitude to work, absence from his position, non-compliance with directions and
harassment of female staff.
Mr Zoric maintained that he was not aware of many
of the complaints retained on his personnel file and believed he had maintained
a good relationship with other staff. He believed that some complaints were
part of a campaign to silence him regarding an inquiry
into corruption at the
South East Mail Centre.
| 57 | This passage
summarised the evidence given before the tribunal. It includes both the
allegation of complaints against the appellant
and also the denials of those
allegations by the appellant. In the absence of any suggestion that the summary
of the facts by the
tribunal was inaccurate, there is no basis to suggest that
the passage demonstrates any possibility that the tribunal might not decide
the
case in an unbiased way. |
| 58 | In relation to
(gg), as explained earlier in these reasons, the errors of law relied upon by
the appellant have not been made out,
and consequently, this ground cannot be
sustained. |
| 59 | In relation to (dd), the passage
which is criticised states: |
28. It is appropriate to deal with the alleged injuries in chronological
order. The first of these was the strained left shoulder.
The comments of Mr
Jones are noted that the cause of the condition was not clear as it could well
be related to the intense gymnasium
program that Mr Zoric was undertaking prior
to and at the time of the alleged injury. The Tribunal shares this view and
cannot be
satisfied on the balance of probabilities that the injury, the nature
of which remains uncertain, was necessarily work-related.
However, liability
was accepted by the respondent so that this issue is not before the Tribunal for
decision. ...
| 60 | The appellant
contends that by expressing the view that it was not satisfied that the shoulder
injury was work related when that issue
was not in contention demonstrated
ostensible bias. This submission must be rejected. A fair-minded observer
would see that the
tribunal expressly stated that the work relatedness of the
original injury was not in issue before it because liability had been
accepted
by the respondent. The discussion about the work relatedness of the shoulder
injury was part of the factual examination
of the claimed aggravation of the
injury which was a matter to be determined by the tribunal. The tribunal
explored whether the
aggravation may have been the result of the
appellant’s gym activities. The narrative on this topic included the
possibility
that the gym activities caused the original injury. The discussion
was relevant and logical. Further, it was based on the earlier
summary of the
evidence of Mr Jones, an orthopaedic surgeon. No challenge was made to the
accuracy of the summary which included:
|
24. Mr I. Jones is an orthopaedic surgeon who examined Mr Zoric at the
request of the respondent on 26 November 2001, 5 June 2002
and 17 March 2004.
After the first examination, he reported that Mr Zoric presented with a
history of low-grade rotator cuff tendonitis affecting his left shoulder. Mr
Jones considered that the cause could have been the repetitive nature of Mr
Zoric’s work or equally due to the gymnasium
work he had been undertaking.
He did not recommend treatment and believed Mr Zoric was capable of full-time
work with restrictions
on lifting above shoulder height. In his report after
the examination on 5 June 2002, Mr Jones proposed an MRI scan, but this was
refused by Mr Zoric. ...
| 61 | Against the
background of this evidence, a fair-minded observer would conclude that the
assessment by the tribunal in the challenged
passage was a perfectly plausible
view of the initial cause of the shoulder injury and was a relevant part of the
discussion concerning
the aggravation of that injury.
|
| 62 | Finally, the ground raised in (ee) related
to the following passage: |
The next injury for which a claim was made was plantar fasciitis. Again,
there must be some doubt as to the work-related nature of
this injury. Mr Zoric
attributed it to standing on concrete floors over several years. While medical
evidence supports the contention
that such activities can aggravate the
condition, it was noted by Mr Jones that the complaint is seen in the general
community who
have never been engaged in such work. There was no evidence that
Mr Zoric had been required to stand on concrete floors and it is
a matter of
conjecture as to whether and to what extent his extensive gymnasium activities
may have contributed to the condition.
Nevertheless, the condition was accepted
by the respondent and the only question for the Tribunal is whether the
condition has restricted
Mr Zoric from full-time duties with appropriate
restrictions on standing or walking for extended periods. As noted, three
doctors
who examined Mr Zoric on and after 12 July 2002 considered he was fit
for such duties. Dr Lane and Dr Jeuniewic included plantar
fasciitis as one of
the reasons for certifying him unfit for such duties, but without any apparent
objective evidence and based
solely on the word of Mr Zoric. Again, I am
satisfied and find that the condition of plantar fasciitis did not restrict Mr
Zoric’s
ability to work full-time hours with appropriate restrictions on
and from 12 July 2002.
| 63 | Again, the
appellant contended that the tribunal ventured an opinion on the work
relatedness of the plantar fasciitis injury when
liability had been accepted,
and a fair-minded observer would conclude from this that the tribunal had a bias
against the appellant.
However, a fair-minded observer would notice that the
tribunal recognised that the work relatedness of the injury was not in issue
before the tribunal, and had been accepted by the respondent. Thereby, the
tribunal explicitly defined its function and excluded
the issue on which it had
expressed a view. Furthermore, the view was not expressed in conclusive terms.
The tribunal said that
there was some doubt and that it was a matter
of conjecture whether the appellant’s gym activities may have caused
this condition. |
| 64 | Thus, the case of
ostensible bias had not been made
out. |
CONCLUSION
For the reasons expressed, the appeal is dismissed. The parties agreed that,
in this event, there would be no order for costs.
I certify that the preceding sixty-four (64)
numbered paragraphs are a true copy of the Reasons for Judgment herein of the
Honourable
Justice North. |
Associate:
Dated: 13
October 2006
Counsel for the
Appellant: |
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Solicitor for the Appellant:
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Mulcahy Mendelson Round & Darling |
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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