Blake and Telstra Corporation Ltd [2000] AATA 209 (17 March 2000)

Last Updated: 24 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 209

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/368 & Q97/1272

GENERAL ADMINISTRATIVE DIVISION )

Re ALLAN HARTLEY BLAKE

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member) Dr EK Christie (Member) Dr JM Lawrence (Member)

Date 17 March 2000

Place Brisbane

Decision The Tribunal affirms the decisions under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

COMPENSATION - liability for compensation - 'mental injury' - depressive disorder - whether arose out of course of employment - distinction drawn between work and failure to be recognised, rewarded or obtain promotion or benefit at work

Safety Rehabilitation and Compensation Act 1988 ss.4,14, 24

Federal Broom Company Ltd v Seimlitch (1964) 110 CLR 626

Golds v Comcare [1999] FC 1481 (28 October 1999)

REASONS FOR DECISION

17 March 2000 Miss WJF Purcell (Senior Member) Dr EK Christie (Member) Dr JM Lawrence (Member)

1. These are applications for review of two decisions of the respondent's (Telstra's) Compensation Division. The first decision of 21 October 1997, affirmed a delegate's decision of 30 June 1997, that Telstra was not liable to pay compensation to the applicant in accordance with s.14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of major depressive disorder sustained allegedly on 9 April 1997. The second decision of 17 March 1999, affirmed a decision of a delegate that Telstra was not liable to pay compensation for permanent impairment pursuant to s.24 of the Act, on the basis that liability to pay compensation pursuant to s.14 of the Act had not been accepted.

2. The evidence before the Tribunal comprised the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Logan of counsel appeared for the applicant, who gave oral evidence and called his treating psychiatrist, Dr M. Foxcroft, and work colleagues, Messrs Petrovanski and Salisbury. Mr Salisbury gave evidence by way of telephone link-up. Ms Ford was counsel for Telstra which called Dr J. Reddan, psychiatrist, Mr Myors, the applicant's superior, and Mr Shephard, a work colleague.

3. The applicant, who is now 52 years of age, undertook his initial training with the Post Master General's Department (as it was then) in the early 1960s, and obtained his technical officer certificate in the field of electronics and communications, whilst employed by the Australian Broadcasting Commission at Toowong. He conducted then, his own business, servicing electronic organs and instruments. In 1989 he joined Telstra (then known as Telecom) as a level 4 technical officer at Woolloongabba, Telstra's Service Database Section. Initially he was the only member in the section.

4. Telstra developed the "One 3" and "One 800" number services in the early 1990's. In early 1993 the applicant and another officer, Alan Judson, became members of the Brisbane Service Data Base Group with line control to the Brisbane Manager of the Network and Technology Group, and functional control to the National Manager, Mr Myors. Their function involved the detection and rectification of faults associated with One 3 numbers. These numbers are used by airlines, travel agents, pizza delivery chains and other franchises. The advantage to the company is that one number can be advertised to consumers, and manipulated, as required, by the company. The call may be transferred to the branch nearest the caller, or to another State if the call takes place outside normal office hours.

5. In 1994, Regional Support Groups had been established in Sydney and Melbourne, in an effort to reduce network complexity and product unit costs. Telstra decided then to locate the computer hardware for the One 3 system in Sydney and Melbourne. The computer maintenance and support arrangements in Adelaide and Brisbane were closed. The Adelaide site's responsibilities were shared between Melbourne and Sydney; but in the case of Brisbane, Mr Myors recommended that the applicant form the Brisbane Management Group responsible for One 3 service faults for Queensland based customers. A review of the existing Brisbane organisational structure was recommended. The applicant was anxious that a full Regional Support Group (RSG) identical with that in Melbourne and Sydney should be established in Brisbane, and that he should be reclassified accordingly, as a level 6 technical officer. A third officer's position in Brisbane had been created, and Mr Petrovanski held that position from October 1994 onwards. The position could not be filled on a permanent basis, until the review of the Brisbane organisational structure had been completed.

6. The applicant was vehemently opposed to the centralisation of the system in Melbourne and Sydney, and the downgrading, as he interpreted it, of the State of Queensland's importance in the National scene. It must be said also, that he was convinced that there was a lack of appreciation of his unique understanding of the particular needs of Queensland companies/clients. He was convinced that his functions in Queensland were different from anywhere else in the country, and that only he, who had developed personal rapport, trust and confidence with the customers, could provide a personalised service. This service would be lost by centralisation of the fault management system in Melbourne and Sydney. He had developed also, software programs/diagnostic tools, which enabled faults to be rectified more quickly. These were adopted interstate.

7. The applicant's conviction of the uniqueness of his situation, affected his perception of Telstra's national reorganisation, and became the focus of his anger and frustration over the ensuing 4-5 years. A perusal of the documentary evidence discloses a rising level of frustration on the applicant's part, at what he perceived to be the inability of Mr Myors to complete the review, and to reclassify the applicant's position to better reflect his level of competence, and the complexity and difficulty involved in the performance of his duties. The applicant felt also, that Mr Myors was discriminating against him and the Section, and that the Melbourne and Sydney Sections were able to obtain increases in staff and resources without difficulty. He thought that Mr Myors humiliated and ridiculed him in the course of national hook-ups, which discussed issues affecting all Branches in the Nation.

8. By April/May 1996 Mr Myors had obtained agreement from the review team, that the applicant's position would be reclassified to a level 5. There would be two level 4 positions, with a recommendation that the appropriate career structure for the Section should be one level 5, one level 4 and one level 3 position. The applicant did not accept this latter proposal, and wished to complete the review himself. In addition, he wished to be nominated immediately to the level 5 position (without it being advertised). He requested also that payment of higher duties in the position be backdated to 1989, when he joined Telecom. On 26 September 1996, Mr Olden (Mr Myors' superior) and Mr Myors met with the applicant and agreement was reached on the proposed structure, with backdating of the applicant's higher duties to 1 January 1996. The proposal was submitted to the appropriate branch of Telstra for final approval.

9. On 20 February 1997 Mr Olden sent an email commending the applicant for outstanding work in the rectification of problems in One 3 numbers that the Commonwealth Bank had experienced. On 25 February 1997 the applicant sent an email to Messrs Olden and Myors complaining of the delay in implementing the new structure, and stating that he did not enjoy the current situation. The applicant said in evidence, that on 28 February 1997 he consumed 7 stubbies of full strength beer, and took an overdose of the prescription drug, Diazepam. He was treated by his General Practitioner, Dr Silver, and not admitted to hospital.

10. On 8 April 1997 the applicant sent an email to Mr Myors in the following terms:

"Bob, can you please give me an update on the progress of our restructure. I am finding it increasingly difficult to put aside my despair.

Please sort this out as promised." [Exhibit R8]

11. On 9 April 1997 the applicant proceeded on sick leave, and on 1 May 1997 he was referred by Dr Silver to Dr Foxcroft, psychiatrist, for treatment. Dr Foxcroft provided a certificate of sickness until 14 June 1997. On 4 June 1997 he lodged a claim for compensation for "major depressive disorder", which he alleged had occurred "over a period of time". He stated that the first time he had treatment for the condition was on 18 June 1993. In his statement in support of his claim [T7/31], the applicant outlined:

"A number of unsatisfactory situations have existed for many years. I have tried my best to have them rectified ... Here are a few examples:-

Staffing Numbers

Working with a small group of two including myself, instead of three has placed unfair pressure on both of us. Despite it being recognised by higher management that the minimum sustainable group is three, we have been left with two, for far too long.

...

Unfair Grading

Has existed for many years for our group, and as long as my Manager has been in charge of SDB nationally.

Our colleagues in other states have regularly commented on the inconsistency and unfairness of our situation compared to theirs' and the other states. The comments also come regularly from within the CNSC area, in which we are located.

My staff member is still sitting in a temporary level 1 position since his arrival to my group in September 1994 - instead of a level 4 or 5. (He is an overpaid officer, getting more pay than myself).

Future Prospects, Opportunities

Despite many promises of an expansion of the role we play, nothing has been forthcoming. In fact, our official role seems to be diminishing while the actual workload is increasing.

The promise of involving us in new SDB products with new opportunities has just not occurred.

Although the considerable experience, expertise and enthusiasm of our group has been demonstrated nationally, it is felt by my staff and myself that our manager is doing everything within his power to prevent any improved future prospects or opportunities for us.

Discrimination

A comment early last year from Bob Myors when I was discussing our problems with him was "It's all a matter of priorities". On more recent approaches I have received replies such as "I'm very busy", "A National Manager should not have to deal with these types of problems", "You are causing me a lot of work" etc.

It seems that Bob has never wanted to help us. Why? I am a member of the National team. I was with him right from his start with our product.

I believe this is discrimination. For reasons that I don't understand he [sic] practising discrimination against my group and myself.

Equal opportunities should exist for the QLD SDB group, as it does for the other SDB groups.

Positive forces should exist that encourage and recognise innovation and conscientious effort from groups such as ours, instead of fixed negative forces that cause much discouragement.

Effect on me

Frustration - disappointment - Devastation - Helplessness - Mistrust - Confusion - Loss of Self Confidence and Self Esteem - Guilt - total loss of interest in anything at all - loss of feelings towards family and friends.

Being responsible for the effective operations of the SDB Customer Management Group for Queensland, I have found the lack of support from my manager (re the above mentioned issues) difficult to accept and understand.

Effect on Family

Unfortunately, my family have also been affected by my deteriorating health, and affected financially by my reduced income over some years. Fortunately for me, they have been very supportive and understanding.

The Future

All I ask for is a fair go."

12. On 25 June 1997 Mr Myors prepared a seven page comment on the applicant's statement [T11/37-43] which read in part as follows:

"In 1994 when all equipment was rationalised back to Melbourne and Sydney Allan's role was reviewed.

The Adelaide site was closed with equipment responsibilities shared between Melbourne and Sydney and customer responsibilities going to Melbourne.

To recognise Allan Blake's technical skills I recommended Allan's role be changed and that he form the SDB Products Brisbane Customer Management Group (CMG) responsible for One3 Service Assurance in Brisbane for Queensland based customers. From a business perspective this was difficult to achieve as there were two effective Regional Support Groups (Melbourne and Sydney) implementing change to achieve Telstra's business goals. Tasmania, South Australia, Western Australia, Northern Territory as well as Victoria were all being efficiently managed from Melbourne. Brisbane was the odd region. The SDB Products Brisbane Customer Management Group was established. I also recommended a review of the existing Brisbane organisational structure.

...

6. Allan now indicated that he would agree to 1xL5 and 2xL4s on the condition that he was directly nominated to the L5 position backdated to 1989. To control Allan's expectations I indicated that a selection process must be followed. Allan totally rejected any selection process indicating that he wanted his effort since 1998 [sic] recognised and this was the least we could do.

I must state at this point that there is a concern that if the normal selection process is followed there is a high possibility that Allan may not win the L5 position.

7. On 26 September 1996 Alan Olden (GM Complex Services) and I met with Allan to discuss backdating of possible higher duties. Agreement was reached on the proposed structure with backdating to 1 January 1996.

8. I then had to submit the proposal for final approval through the new ER organisational process.

I am still waiting for the final sign off.

All concerned in this process found Allan Blake's attitude very frustrating. However, in my view, we were very patient and every attempted [sic] was made to work through all issues with Allan.

...

Discrimination

* I have had many discussions with Allan Blake. I have tried to get Allan to understand what my role is as a national operations product manager. I have also attempted to have Allan work with one of my other managers to work through day to day issues.

I have also attempted to have Allan assume a responsible role as the key One3 representative in Queensland. I am still waiting for Allan's first monthly report since 1993.

Allan insists on sharing not only my time, but that of the General Manager and the National General Manager of B&G Technical Service. We have all been very patient.

* To satisfy Allan's most basic needs, in my opinion, Allan needs to report daily to a depot manager. At the very least, the Brisbane group should report to the Sydney RSG as the Queensland Service Assurance Group where by the Regional Manager can devote daily time to Allan's needs. In an attempt to manager Allan's expectations and frustrations I have had that group report to me. The most basic of day to day functions can result in a major catastrophe. Using a shared photocopier as an example.

Allan requires constant personal reassurance and congratulating for day to day activities. As a result Allan receives more attention at the General Manager and National Manager level than anyone else in Complex Services.

* To ensure Allan receives day to day attention I have attempted to place the group under the Sydney RSG Managers control.

Allan has totally rejected this suggestion Although my time is consumed with the most basic functions it is not appropriate to burden the Sydney Manager with an inappropriate workload.

* Telstra, B&G in particular, have been unprecedented in the level of support that has been offered to Allan Blake.

Although Allan is constantly briefed and involved in team discussions he does not understand Telstra's future directions or what deregulation will mean.

He has an expectation that there is unlimited resource to deliver what Allan thinks should be put in place, regardless of cost or company policy.

Allan must accept that Telstra is changing and that he must manage his expectations. I cannot guarantee him a position just as I am not guaranteed my position."

13. On 30 June 1997 Telstra's delegate determined that it was not liable to pay compensation, on the basis that the disorder suffered by the applicant had arisen from his failure to obtain a benefit in connection with employment. The delegate stated that on the information available to him, it was apparent that the applicant's perception and expectations had played a significant part in the development of his condition. The delegate stated also, that the majority of issues raised by the applicant, namely, unfair grading of positions, recognition of performance at a higher level retrospective to 1989, and lack of future prospects and opportunities, constituted a failure to obtain a benefit in connection with employment.

14. The applicant was hospitalised in July 1997, under Dr Foxcroft's care, and undertook a course of electroconvulsive therapy (E.C.T.). On 24 July 1997 the Assistant Secretary of the applicant's Union requested reconsideration of the delegate's decision. On 1 September 1997 Dr Foxcroft reported to the Union [T24/87-88] that in his opinion, the current episode of depression had been precipitated by severe work place stress. The applicant's symptoms had improved considerably following the hospitalisation and continuous treatment. Dr Foxcroft stated that the applicant was currently "quite well" with only mild symptoms of anxiety and depression present. He required ongoing antidepressant medication, but was fit to return to work, after completing a return to work program in the next couple of weeks. Dr Foxcroft recommended that the applicant not be returned to his old position, unless appropriate changes to the work place environment had been made.

15. In early August 1997 the applicant had contacted a former work colleague, Mr Shephard, Regional Manager of Telstra's switch data network, and Mr Shephard was agreeable to the applicant working in his section. The Charlotte Street telephone exchange was being upgraded, and all staff in Mr Shephard's section were involved in removing equipment and cables. The applicant undertook this work initially, for 3 half days per week, and then 3 days per week. By 21 October 1997, the date the decision of the delegate was affirmed by the decision under review, the applicant had been attending work most days of the week. He ceased work on about 24 October 1997. On 3 March 1998, Mr Olden advised the applicant by letter that Telstra, despite exhaustive rehabilitation attempts and consideration of redeployment and retraining options, was unable to offer the applicant continuing employment. Telstra had decided that the applicant would be retired on the grounds that he was unable to discharge his duties, and retirement would take effect on 3 April 1998. The applicant accepted retirement. He has not undertaken any employment since that date.

16. Telstra is liable to pay compensation to the applicant pursuant to s.14 of the Act, if he has suffered an "injury" which is defined by s.4 of the Act as:

"(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."

17. The applicant submits that he suffered an injury in accordance with s.4 of the Act, a mental injury, which arose out of his employment. There is no single cause for the applicant's major depressive disorder. It is multi-factorial in its origins. A failure to have his position upgraded was undoubtedly a contributing factor, but also lack of staff, institutional change in relation to the management of the One 3 network, and the applicant's inability or unwillingness to adapt to these changes, with the resultant unresolved tensions between the applicant and his superior, Mr Myors. All of these factors were stressors on an individual with obsessional personality traits. The employer takes a worker as he finds him. Telstra benefited from the attention to detail and perfectionism inherent in the applicant's approach to his work, yet that approach was itself productive of stresses which were major contributing factors to the ailment from which he suffers now.

18. The applicant argues that his focus was not with his classification level, but rather, with a fairer structure for the Brisbane group, with the unique problems and challenges facing Queensland, as the last of the States to convert to a fully digital network. The applicant was discouraged by the National perspective, from deep involvement in fault diagnosis and rectification. This was itself productive of stress, especially when long standing customer ties and loyalties were involved. The predominant cause of the stresses which engendered the applicant's major depressive disorder was that he was trying to do too much himself. He continues to be totally incapacitated for work. The injury, he argues, is permanent, and amounts to an impairment of 30% for the purposes of s.24 of the Act.

19. Telstra submits that any condition which the applicant may suffer was not contributed to in a material degree, by his employment with Telstra. He was dissatisfied with his job for many reasons, such as recall work, overtime, lack of sufficient staff, and lack of recognition. Looking at the objective evidence however, in relation to each of the matters he alleges, his assertions cannot be sustained. Telstra argues also, that if the applicant's employment had a role to play in the development of his condition, then the exclusion applies. The matters of which the applicant complained fall into the category of either, failure to obtain a promotion, or failure to obtain a benefit in connection with his employment. The development of the condition might well have been multifactorial, but the trigger, or precipitating event, which resulted in the condition, was the failure to obtain the benefit/promotion.

20. The parties' counsel provided us with carefully prepared and well reasoned written submissions. We have not attempted to summarise each and every submission, but we have taken them all into account in the course of our deliberations.

21. We heard lengthy oral testimony from the applicant, who we consider did his best to outline in detail, the very complex history of this matter. He impressed us as a competent, conscientious employee with a tenacious commitment to maintaining the best possible service for his Queensland customers. Within a National framework however, such singlemindedness would lead inevitably, to conflict with centralisation of technology and control to Sydney and Melbourne. We accept, that in his mind, any such conflict of ideas and motives were perceived as discrimination, and lack of management's appreciation of the uniqueness of the Queensland position. The applicant however, was not an employee of a State organisation, but of a Nationwide organisation in the process of major expansion and privatisation, in a rapidly developing technological market. We do not doubt the genuineness of his staunchly held perceptions, but in our view these perceptions did not reflect the reality of the situation. In some important areas of the evidence, we prefer the testimony of Mr Myors and Mr Shephard where there is any conflict in the evidence.

22. The applicant called also, Mr Salisbury, a level 5 technical officer in Sydney, and Mr Petrovanski, who worked in the Section with him, from October 1994. We accept both Mr Salisbury and Mr Petrovanski as witnesses of truth. Telstra called Messrs Myors and Shephard, both of whom impressed us as objective witnesses, whose evidence we accept. The other witnesses were medical practitioners who were also, in our view, objective and competent witnesses; but we prefer the evidence and opinions of Dr Reddan in any area of dispute in the medical evidence.

23. The applicant gave evidence that his working hours were from 8.00 am to 5.00 pm, 5 days per week; but that he was on call, on his own during the first 2-3 years, because his workmate would not work overtime. He received calls sometimes every night of the week, and on weekends and public holidays. He had a pager, a mobile telephone and a personalised computer in his home, which enabled him to rectify faults whilst at home. On some occasions he was obliged to attend the office if he needed documentation. The responsibility was always there; and companies tended to blame the One 3 numbers for all problems, when often the problems emanated from their own internal telephone systems, such as PABX. He said that he developed programs/utilities to assist in early identification and rectification of faults, and these were available for the use of others. He developed these products in his own time. He said in evidence that he loved his work, and enjoyed this aspect in particular. Although relief for after-hours work was offered in 1993, by another section, he considered that this would not be effective, as there would not be continuity of staff, so he persisted in doing the overtime and recall duty himself, rather than accepting this proposal and channelling after-hours calls to Sydney.

24. A perusal of Exhibit R13 (the applicant's pay records from 1992-1997) discloses that in the 1992/93 financial year, the busiest month was November 1992, with a total of 73 hours 15 minutes paid overtime, an average of 3 hours 30 minutes per day; but by May 1993 it was down to 6 hours for the month, an average of 18 minutes per day. By the 1995/96 financial year the busiest month was May 1996, with an average of 1 hour 7 minutes per day, with 8 minutes per day in October 1995. In the 1996/97 financial year the busiest month was October 1996, with an average of 1 hour 40 minutes per day; and by May 1997, the average was 52 minutes per day, and the average number of recalls between June 1996 and the end of March 1997 was 4 recalls per month. It is clear from the documentary evidence that the amount of essential overtime the applicant needed to perform reduced over the years.

25. The applicant agreed in evidence, that Brisbane was expected to deal with less complicated One 3 faults (level 1 faults), more complex faults were handled interstate. The applicant may well have perceived that the hours worked were excessive, but in our view the objective evidence indicates that these hours could well have been reduced if the applicant had accepted the assistance available, and not persisted in his determination to attend to these matters himself. Despite his protestations that the financial aspects of overtime/recall were not of relevance to his desire to perform these duties, the pay records [Exhibit R13] disclose that consistent payments of overtime lifted his gross earnings considerably. For example, in the month of May 1996, in the fortnight commencing 1 May 1996, he was paid $667.51 in overtime, and in the fortnight commencing 29 May 1996 he was paid $581.28. On any objective view, the payments for overtime were of substantial financial benefit to the applicant, over the period 1992 to 1997.

26. Mr Petrovanski gave evidence, which we accept, as to the number of level 1 faults he and the applicant dealt with on a daily basis, from 1994 onwards. This evidence accords with the applicant's own evidence, in cross-examination, and the evidence of Mr Myors. We do not regard this workload, of an average of 3 faults per day, as excessive. The applicant gave extensive evidence of his frustrations with the delay in implementation of the restructuring, and thus the permanent appointment of a third officer to assist with the workload, and a reclassification of his own position to better reflect the level of expertise he possessed, and the duties he had to perform. On the whole of the evidence however, his conviction that his should have been a level 6 technical officer position, was totally unrealistic, as was his expectation that there should be a Regional Support Group in Brisbane, when one compares the technical and staff responsibilities to that of the equivalent officers in Sydney and Melbourne.

27. We accept Mr Myors' evidence of the difficulties he experienced over a number of years in convincing the personnel/organisational evaluation team that a level 5 position in Queensland was justified, despite a lower workload. Mr Myors said that the position was created only because of the applicant's expertise and on the basis that the applicant would report directly to the National Manager, Mr Myors. We accept Mr Myors' evidence also, that because of the National structure, there was not enough work for three people in the Brisbane branch, and that the third Brisbane position would not be filled until the review had been finalised.

28. The applicant gave evidence also, that he found the National structure very embarrassing. He found it embarrassing to disclose that he was only a level 4 officer, when asked his classification. He felt humiliated, but he said that if the restructuring took place, he would no longer have felt embarrassed. The applicant said this in evidence, and in his statement prepared for Dr Foxcroft [Exhibit R9] that the restructuring, and inability to fill the third position was a cause of his stress and resultant condition.

29. Dr Foxcroft gave evidence that he had seen the applicant on two occasions in June 1994, with a history of stress related symptoms of anxiety and low mood, but no other symptoms of a major depressive disorder. He advised stress management techniques, and understood the applicant had no previous history of a major depressive disorder. Dr Silver was the applicant's treating general practitioner, and a perusal of his notes reveals that the applicant suffered depressive symptoms and received treatment in 1975, and 1976, when he was prescribed an antidepressant, Aventyl. Dr Silver recorded that the applicant was frustrated, angry and shaky. He continued on the antidepressants, until at least April 1978; and there is evidence of further prescriptions of antidepressants in 1980 through to 1982, with reference to problems at work at that time.

30. The applicant was hospitalised in 1987, and he said in cross-examination, that he felt at that time, that he needed a rest, and the best way to rest was to go to hospital. Dr Silver's notes disclose that the applicant was still taking the antidepressant, Prothiaden, in 1990; and he was commenced again on Prothiaden in 1993, complaining of work stress and headaches. This was changed later to Prozac, and later again to Aropax (Paroxetine). He was again started on Prothiaden in March 1995, and later changed to other antidepressants, including Aurorix. In July 1996 it was recorded that he was unhappy in his job, and his antidepressant was changed. There was some reference to his alcohol intake being somewhat excessive. His medication continued through 1996. Dr Silver reported to Telstra on 10 March 1998 that over the 15 month period from 12 July 1996 onwards, the applicant consulted him monthly.

31. Dr Foxcroft gave evidence, consistent with his written reports, on the basis of information provided by the applicant alone, that work related stresses, which the applicant reported as being "severe", were the cause of his depressive disorder. Dr Foxcroft recorded these stresses as being prolonged periods of on-call work, being virtually 100% of the time between June 1991 and July 1995, and 50% from July 1995. The hours on-call, had still been excessive. He also reported a long history of conflict with the applicant's supervisor over staffing levels and the level of management support provided to his unit; and over the levels of responsibility and work demands placed on the applicant compared to similar positions in other States and in other job descriptions. Dr Foxcroft recorded that even when relief was provided, the relief took more than twelve months to arrive, and that during this period of time, the applicant was required to do high levels of regular overtime, virtually every day, and work was also required on public holidays and weekends. The applicant reported to Dr Foxcroft that he was in conflict with his superior over technical issues, and was humiliated on a number of occasions when his supervisor lost his temper during telephone conferences and other meetings. The applicant felt that his group was treated differently from other groups in other States, and that his position was constantly under threat of restructuring, but that no additional staff members were provided to help cope with the workload and work related stress.

32. Dr Foxcroft said in evidence that he believed that there had been a virtually continuous stream of conflict between the applicant and his supervisor over workload, staffing levels, on-call hours, work demands, and conflict over comparative workloads between the Queensland group, and groups in similar sections in other States. Promises had been made, but never fulfilled, and this unfulfilled expectation further exacerbated already extreme levels of stress and excessive workload, including excessive on-call hours without adequate relief provided. The evidence which we accept, however, does not support the history as outlined by the applicant to Dr Foxcroft; and we have taken this into account in our assessment of the weight to be given to Dr Foxcroft's evidence and opinions.

33. Dr Foxcroft said in evidence that the applicant displayed obsessional traits, and that he has been under his care since May 1997. Dr Foxcroft gave the applicant two courses of E.C.T. in July 1997, after which time he appeared to improve. We note that the applicant told Dr Silver on 8 September 1997 that he was better than he had been in many years, that he was working in a less stressful area of Telstra and pursuing his case against Telstra. Dr Foxcroft gave evidence that at this time, there was no evidence of depression on an accepted rating scale (Montgomery-Asberg) and the applicant was engaged in a graduated return to work program with a former colleague now supervisor, Mr Shephard.

34. Telstra called Mr Shephard as a witness. We accept his evidence that he and the applicant had known each other since they trained together in 1964; and that he agreed to the applicant joining his section in late July/early August 1997. They worked together, on occasions, dismantling the Charlotte Street equipment. Mr Shephard thought that the applicant was getting on quite well; but he was not back to his old self. The work the applicant was undertaking was not intellectually demanding, but it was certainly not menial work, it was physical rather than mental. The applicant told Mr Shephard that he had been frustrated by Mr Myors. By mid October 1997 the applicant was attending work nearly every day, was able to have a joke and a laugh and was more like his old self. Mr Shephard said that he recalled the day when Telstra affirmed its refusal of the applicant's claim. It was "as though a cloud came over him", he appeared to "collapse" and ceased attending work [Exhibit R5].

35. Dr Foxcroft said in evidence that the applicant has been persistently depressed since October 1997. He undertook a further course of E.C.T. as an outpatient at the end of 1997, which produced little significant improvement in his symptoms. Dr Foxcroft has prescribed a variety of psychotropic medications, without significant improvement. There was concern about the applicant's poor memory, and the possibility of dementia, but this was able to be disproved. Dr Foxcroft reported on 15 January 1999 [Exhibit A6] that the applicant has difficulty organising himself, and was unable to motivate himself to perform even a short walk, or any other regular exercise. He required frequent supervision during the day, and continued to consult Dr Foxcroft weekly or twice weekly. Dr Foxcroft said in evidence that the condition has been present for more than 2 years, and as a result, the prognosis is extremely poor. In Dr Foxcroft's opinion, the applicant has a permanent incapacity, which in accordance with Table 5.1 of the Comcare Guide was equivalent to a rating of 30%. In his view, it was unlikely that the applicant would have developed the condition if the contributing aspect of his employment had been removed, prior to the development of his symptoms.

36. Telstra called Dr Reddan, who agrees with Dr Foxcroft as to the diagnosis of major depressive disorder, and as to the applicant's obsessional traits; but Dr Reddan also highlighted issues of rigidity and passive aggression in the applicant, which she considered of significance. She considered that the predisposing factors to the applicant's depression included the natural history of the condition itself, including temperamental or constitutional factors. The applicant has a temperament which could be characterised as rather quiet and harm avoidant. He has previous episodes of anxiety and depression, and perhaps some other health considerations. Dr Reddan saw the applicant on 2 September 1998, and reported on 24 September 1998 [Exhibit R1] in part:

"Mr Blake attributed his illness to a number of work-related factors. In particular, he related problems in obtaining more staff, a failure to gain recognition at a level commensurate with his responsibility and expertise and excessive on-call work, which he stated he was able to resolve. Mr Blake's attribution of causation for his illness could be summarised as being his perception that his manager had treated him poorly. He did not attribute his condition to the nature of his work, which he stated he enjoyed and was more than capable of performing to a satisfactory conclusion. He reported that he attempted on many occasions, to resolve his concerns by direct negotiations with his manager and his manager's superior, but without success. ... He appears to be an obsessional, avoidant man, who because of factors relevant to his childhood, has difficulty in acknowledging and dealing appropriately with hostile or angry feelings. Precipitating factors to this illness, appear to be a combination of Mr Blake's personality style, combined with difficulties he had in adapting to aspects of his workplace. He perceived that his manager was denigrating him in a variety of ways, which have been earlier outlined in this report, and this conflicted with his own idealised view of himself and his performance. He was then unable to deal with the feelings generated within himself and he experienced his workplace as increasingly frustrating and as a source of continual narcissistic injury. I note that there is a significant gap in perception between Mr Blake and his former manager. Perpetuating factors include the natural history of the condition itself, his loss of role with his retirement, existential issues highlighted by the developmental processes of middle-age and Mr Blake's rigidity of personality."

37. Dr Reddan saw the applicant again, on 6 April 1999, and reported on 4 June 1999 [Exhibit R2], that based purely on the applicant's self-report, she regarded his current level of impairment as being 20%. She did not necessarily regard this level of impairment as permanent, because the natural history of major depression is very variable, and the majority of people improve with, or without treatment. In addition the applicant might benefit from further treatments.

38. Dr Reddan considered it likely that the applicant would not improve substantially until his litigation had resolved, as it probably represented a significant perpetuating factor to his illness. Dr Reddan stated also that Mr Myors' statement of 5 February 1992 [Exhibit R4], confirmed her earlier impression that there was a substantial difference in opinion between the applicant and his former manager; and that if Mr Myors' account of events was accurate, this would suggest that the applicant was a fragile and very rigid individual whose sense of entitlement conflicted with his work.

39. In her oral evidence Dr Reddan expanded on the views expressed in her written reports. She said that in her opinion the perpetuating factors of the applicant's depression included the natural history of the condition itself, his loss of role with his retirement, existential issues highlighted by the developmental processes of middle age, and the applicant's rigidity of personality. She considered that the applicant could benefit from further treatment, after the conclusion of litigation, as the litigation kept him focussed on his previous workplace. She said also that if the applicant was successful, and he were faced with the losses of his status and work, he might find himself in a state of permanent disability, with difficulty in finding alternative occupations because of other factors, age, personality and the continuing level of impairment from major depressive disorder. We accept Dr Reddan's evidence.

40. We have examined the whole of the evidence carefully and in detail, and we have taken into account the parties' submissions. In our view, the evidence as it unfolded at the Hearing, revealed that the applicant had strongly resisted the measures for relief from being on-call or working overtime in the years from 1991 to 1994. On the evidence also he had a strong need to find self-esteem in his work and achievements, to feel indispensable, and to have his efforts recognised by his work colleagues. He displayed considerable rigidity in his resistance to change, such as nationalisation of the One 3 number product, and rationalisation of services. He resisted efforts made by Telstra to assist him, when that assistance was not exactly what he wanted. He reported a deal of frustration at the time, and reported having been humiliated and belittled by his superiors in front of others. The evidence did not support his version of events.

41. The applicant denied in evidence that he sought promotion, but it is clear on the evidence that he had considerable expectations of recognition of his skills and ability, both in his desire for a level 6 appointment, and his apparent ambivalence to the restructuring proposals. On the one hand, he appeared to push for these, and to be frustrated by the delays, but the delays were, to a significant degree, contributed to by his own behaviour, resistance to agreements, and failure to provide requested documentation. Indeed, there was considerable evidence that agreement would be reached in disputed areas, only to be changed or rejected in subsequent memoranda, sent by the applicant some time later.

42. We consider, on the whole of the evidence, that to an extent the work pressures of being on-call and overtime without relief, were significantly contributed to by aspects of the applicant's personality, which prevented him from using relief measures provided for him by his supervisor. His need to feel indispensable and to seek reassurance and recognition through his work achievements, significantly contributed to his subsequent difficulties through 1996 and 1997. His own personality was a major contributor to the development of his symptoms in 1997, and the perpetuation of these.

43. The applicant would be entitled to compensation if his injury, in accordance with s.4 of the Act, arose out of or in the course of his employment, and is not a condition suffered as a result of failure to obtain a promotion, transfer or benefit in connection with his employment.

44. In Federal Broom Company Ltd v Seimlitch (1964) 110 CLR 626 at 641 Windeyer J said:

"I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which is was performed."

45. In this matter, it is not the work itself of which the applicant complains. He said in evidence that he loved his work, and he told Dr Reddan that he did not attribute his condition to the nature of the work, which he enjoyed, and was more than capable of performing satisfactorily. It was other factors with which he was dissatisfied, that caused his condition. The applicant was bitterly disappointed with the delays in the restructuring, which would have provided him with an extra permanent staff position, and he would achieve a level 5 position (although not the desired level 6 position). The question is whether such frustration, anger and disappointment resulted from the applicant's failure to obtain a promotion or benefit. In the matter of Golds v Comcare [1999] FC 1481 (28 October 1999) Cooper J said at paragraphs 41 and 42:

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

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

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

We adopt, with respect, his Honour's views.

46. We are satisfied on the evidence that the applicant's major depressive disorder arose in the context of his ongoing frustration, anger and disappointment that his competence and achievements were not properly recognised and rewarded. We are satisfied on the evidence that if any work factors were relevant to the onset of the condition and the applicant's absences from work from April 1997, they resulted from his failure to obtain a promotion or benefit in connection with his employment. We are satisfied on the evidence and find as a fact that any injury and incapacity for work that the applicant may have suffered, did not arise out of, or in the course of his employment with Telstra, and that Telstra is not liable to pay compensation to the applicant, in relation to the condition of major depressive disorder. We are satisfied on the evidence that the applicant has not suffered an injury for which compensation has been determined pursuant to s.14 of the Act. Telstra is not liable therefore, to pay lump sum compensation to the applicant pursuant to s.24 of the Act.

47. For these reasons, the Tribunal affirms the decisions under review.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member), Dr EK Christie (Member) and Dr JM Lawrence (Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 16/17/18 November 1999

Date of Decision 17 March 2000

Counsel for the Applicant Mr Logan

Solicitor for the Applicant Murphy Schmidt

Counsel for the Respondent Ms Ford

Solicitor for the Respondent Phillips Fox