MacArthur and Comcare [2003] AATA 1139 (14 November 2003)

Last Updated: 14 November 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1139

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/171

GENERAL ADMINISTRATIVE DIVISION	)
	Re	RODERICK MACARTHUR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Senior Member BJ McCabe

Date 14 November 2003

Place Brisbane

Decision

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with these reasons.

(Sgd) BJ McCabe

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - benefits and entitlements - liability - psychiatric condition - whether condition caused or aggravated by the applicant's employment - whether applicant is permanently incapacitated

Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 66(1)

Re Ileris and Comcare (1999) 56 ALD 301

REASONS FOR DECISION

14 November 2003

Senior Member BJ McCabe

INTRODUCTION

1. The applicant, Rod Macarthur, has sought review of Comcare's decision denying liability for his injury. Mr Macarthur suffers from a psychiatric disorder. The applicant says he developed the disorder (or it was aggravated) as a result of his employment with the Australian Quarantine Inspection Service (AQIS). He was a meat inspector, although he has been on leave since March 1999.

2. Comcare, the respondent, is liable under the Safety, Rehabilitation and Compensation Act 1988 to compensate an employee who sustains an "injury" (including a disease, such as a physical or mental ailment: section 4) that arises out of or in the course of his or her employment, or is aggravated by their employment. The liability to compensate is set out in section 14. There is a specific liability to compensate individuals for medical expenses incurred in connection with the treatment of a work related injury (section 16) and for permanent incapacity (section 19). Mr Macarthur says he has incurred an injury that is compensable under the Act, and adds he is now permanently incapacitated.

3. Comcare rejected the claim. In particular, Comcare disputes Mr Macarthur's account of conditions in the various meatworks in Rockhampton where he worked. Comcare says the applicant's psychiatric disorder does not arise out of his work and is not therefore an "injury" as defined in section 4 of the Act.

4. The applicant's case proceeded on the basis he had been subjected to sustained abuse and mistreatment by his workmates. He described a number of incidents, including a knife attack, that could - if his accounts are to be believed - constitute stressors that might precipitate or at least contribute to the onset or aggravation of a psychiatric illness. The respondent disputed whether these incidents occurred, or at least whether they occurred in the way the applicant claimed. The respondent said the applicant exaggerated events. Comcare says the applicant's psychiatric condition is more likely to be attributable to (or aggravated by) events in his personal life, like his divorce, and to constitutional factors, including a family history of depression.

5. I have difficulty with the applicant's account of a number of key events at the meatworks. Mr Clark, for the respondent, managed during the course of a lengthy but skilful cross-examination to establish - at a minimum - it was impossible to rely on the applicant's perceptions of a number of those events and the behaviour of some of the key antagonists. I am not satisfied he was being untruthful; rather, having heard the evidence of Dr Varghese, I think Mr Macarthur's flawed perceptions and memory of people and events and even his tendency to exaggerate could be explained by his condition.

6. That finding obviously creates an obstacle for the applicant. As I heard Mr Macarthur's testimony picked apart during cross-examination, I began to form the view he could not succeed in his claim. But I changed my mind. After hearing from all the witnesses, and from some of the respondent's witnesses in particular, it became clear the applicant worked in a poisonous environment. Even if one discounts Mr Macarthur's accounts of specific events, I am satisfied there was a culture of venomous name-calling and abuse, brawling, vicious practical jokes, vilification and derision. It was a stressful environment and I am satisfied in light of the opinion of Dr Varghese in particular that the level of workplace stress was such as to contribute to or aggravate the applicant's psychiatric condition. I will explain my reasons for that conclusion in greater detail below.

THE MATERIAL BEFORE THE TRIBUNAL

7. The applicant was represented by Mr Harding. Mr Clark appeared on behalf of the respondent.

8. The Tribunal was provided with the documents required under section 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal was also provided with:

(a) the statements of:

q Ralda Liesagang undated (Exhibit 4)

q Wayne Gaskin taken 17 May 2002 (Exhibit 5)

q Kerrod Mac Hamilton taken 17 May 2002 (Exhibit 6)

q Roderick Macarthur taken 21 May 2002 (Exhibit 7)

q Roderick Macarthur dated 28 July 1999 (Exhibit 8)

q Nicholas Dash dated 19 April 2002 (Exhibit 13)

q Glenn Arthur Harrison dated 19 April 2002 (Exhibit 14)

q Leigh Duncan Graham dated 17 April 2002 (Exhibit 15)

q James Walter Lindstrom dated 18 April 2002 (Exhibit 16)

q Edward Wayne Elliott dated 16 April 2002 (Exhibit 17)

q John Boyle dated 16 April 2002 (Exhibit 18)

q Garry Raymond Talbot dated 16 April 2002 (Exhibit 19)

q Jeffrey William Swift dated 12 April 2002 (Exhibit 20)

q Robert Edwin Swift dated 18 April 2002 (Exhibit 21)

q Steven J Dalzell dated 31 January 2000 (Exhibit 31)

q Rick Turner taken 17 May 2002 (Exhibit 32)

q Ian Ronald Mann undated (Exhibit 33)

q Pat Macarthur dated 21 February 2000 (Exhibit 34)

q Lyal Thomas Page dated 16 April 2002 (Exhibit 36)

q John Boyle dated 10 September 2002 (Exhibit 37)

q Jeffrey William Swift dated 6 September 2002 (Exhibit 38)

q David Francis Grimmett dated 9 September 2002 (Exhibit 39)

q Roderick Macarthur - work history given to Dr JA Barry (Exhibit 40)

(b) medical reports prepared by:

q Dr FT Varghese dated 30 November 2000 (Exhibit 22)

q Dr FT Varghese dated 13 May 2002 (Exhibit 23)

q Dr JE Forker - copies of attendances relating to psychological or psychiatric condition and all attendances for work-related conditions under cover of letter dated 28 July 2000 (Exhibit 24)

q Dr JE Forker - copies of all medical records (Exhibit 25)

q Dr JA Barry - medical records and reports (Exhibit 26)

q Dr JA Barry - clinical notes under cover of letter dated 8 May 2002 (Exhibit 27)

q Dr BW Acutt - medical records and reports (Exhibit 28)

q Dr BW Acutt - clinical notes under cover of letter dated 8 May 2002 (Exhibit 29)

q Curriculum Vitae - Dr Jennifer Anne Barry (Exhibit 35)

q Dr JA Barry dated 5 May 2000 (Exhibit 42)

(c) other material tendered:

q Bundle of MPRA Documents (Exhibit 2)

q Telephone conversation record - Warwick Goddard - Jim Wall (Exhibit 3)

q Two photographs of graffiti (Exhibit 9)

q Two photographs of graffiti (Exhibit 10)

q Letter from AQIS to Mr Macarthur dated 16 December 1995 (Exhibit 11)

q Works' Diary - entry 22 June 1996 (Exhibit 12)

q Diagram of work-station on chain (Exhibit 30)

q Works' Diary - 1996 (Exhibit 41)

9. The applicant filed some of the statements just prior to the hearing in Rockhampton. Mr Clark, for the respondent, objected to the late filing. I noted the objections. I proposed that I should accept the statements although I indicated I would entertain an application for an adjournment to give the respondent time to consider the statements. The hearing was adjourned early during the evidence of Dr Barry when it became apparent she was referring to a statement from Mr Macarthur that had not been included in the summons material, and which had not therefore been sighted by the respondent.

10. The applicant gave evidence in person at the hearing, which commenced in Rockhampton. He was cross-examined at length, and he was recalled for cross-examination when the hearing resumed in Brisbane. The Tribunal also heard evidence from:

q Wayne Gaskin

q Kerrod Mac Hamilton

q Phillip Arthur Smith

q Ralda Michelle Liesagang

q Warwick Robert Thomas Goddard

q Jeffrey Williams Swift

q John Boyle

q Rick Turner

q Steven John Dalzell

q Ian Ronald Mann

q Patricia Macarthur

q Glen Arthur Harrison

q Nicholas Dash

q Lyal Thomas Page

q James Walter Lindstrom

q Gary Raymond Talbot

q Edward Wayne Elliott

q Robert Edward Swift

q Leigh Duncan Graham

q David Francis Grimmett

11. There were disputes about some of the witnesses and material tendered by the applicant. For example, the applicant did not provide a statement of Mr Goddard, who was called as a witness. Mr Goddard was reluctant to testify: he said he feared retribution from AQIS management. He was embroiled in a dispute of his own with his superiors at the time of the hearing. He was unwilling to sign a statement, although counsel for the applicant sought to tender contemporaneous notes from a telephone conversation with Mr Goddard and the applicant's solicitor. Several other statements apparently came as a surprise to the respondent. I ultimately permitted the applicant to tender all of that material. I was prepared to entertain an adjournment if the respondent required it. In the event, I do not accept there was any prejudice to the respondent: the case did not finish in Rockhampton as anticipated, and had to be scheduled for further sittings in June and again in October 2002. Some of the witnesses (including Mr Macarthur and Mr Swift) were recalled to be questioned about matters, so the respondent had ample opportunity to respond to any issues that might have been unexpected on the first days in Rockhampton.

12. There was a more strenuous objection taken to the contents of a report prepared by the Merit Protection Review Agency (MPRA) arising out of a complaint by Mr John Hackett. Mr Hackett worked for AQIS in Rockhampton and had complained about work conditions. The MPRA conducted an extensive review of AQIS operations and made a number of observations and findings that the applicant believed would help his case. Mr Harding asked for an unexpurgated copy of the report to be tendered in evidence. Mr Clark objected on the basis that the applicant only indicated an interest in the report in the days immediately before the hearing. Ordinarily, a claimant seeking to introduce evidence is required to give 28 days notice of that evidence to the Tribunal: subsection 66(1), Safety, Rehabilitation and Compensation Act 1988.. In the absence of leave, evidence that has not been notified to the respondent is inadmissible. In any event, Mr Clark said the report was irrelevant because it dealt with someone else's case and did not even mention Mr Macarthur.

13. Mr Harding said the report did not include anything new, in that it described an environment where bullying and harassment were common-place - which was always a part of Mr Macarthur's case.

14. The limitation on late evidence in subsection 66(1) is designed to ensure the claimant provides the respondent with a clear picture of the case against it. The rule helps to ensure the dispute between the parties is dealt with expeditiously and fairly. It makes costly adjournments less likely. But the rule is not an inflexible one, which is why the Tribunal has the discretion to receive evidence that was not provided within the time limits envisaged in the rule. In making its decision on this point, the Tribunal is guided by the principles identified in Re Ileris and Comcare (1999) 56 ALD 301 at 310 regulating the admission of evidence generally. The Tribunal must balance:

(a) the desire to obtain the best possible evidence; and

(a) the requirements of natural justice.

15. Even if the Tribunal decides to exercise the discretion in favour of admitting the evidence, it may still exercise caution in assigning weight given the circumstances in which it was supplied to the Tribunal and the other party.

16. In the event, I decided to admit the MPRA report into evidence notwithstanding its late tender. I am satisfied the respondent was not dealt with unfairly in circumstances where it had several months between the commencement of the hearing in May and its conclusion in October to deal with the issues raised in the report if it saw fit to do so. As the case progressed, it became apparent the applicant did not in any event place great weight on the report. It was referred to occasionally in the course of the evidence, but it rated barely a mention in Mr Harding's final submissions. Moreover, an unexpurgated version of the report was always in the hands of the respondent.

17. In the circumstances, I note the MPRA's conclusions about the culture of the workplace are consistent with those I have reached independently after hearing the other evidence. I do not attach any additional weight to the report.

THE APPLICANT'S BACKGROUND AND PERSONAL CIRCUMSTANCES

18. The applicant presents as an intense, thoughtful and quietly-spoken man. He was born on 4 December 1946. He was divorced in 1988. He has two adult children. At the time of the hearing, he resided with his mother and divorced sister in Rockhampton. The applicant's divorce was obviously distressing, although I think he sought to down-play its significance when he was giving evidence. He has had at least one other relationship since the breakdown of his marriage.

19. Mr Macarthur is intelligent and has a lively interest in world affairs. He often discussed what might be regarded as left wing causes; some of his former workmates said he was a communist. A number of them resented what they described as persistent advocacy of his political views - he says he heard himself described as a "commie bastard".. In any event, he is articulate and politically aware. He was capable of being obtuse when answering questions put to him during cross-examination. He also demonstrated some surprising qualities that do not sit easily with the stereotype of a meat inspector: for example, he recounted in his evidence that he had become distressed by the need to shoot a bullock on a girl-friend's property.

WORK HISTORY

20. Mr Macarthur commenced working for AQIS as a meat inspector in August 1973. He started as a level 1 inspector and worked principally in the two export-registered meat processing plants in Rockhampton throughout his career. He remained at work there until March 1999 when he went on leave following the events that are said to have led to this claim. While on leave, he has been picking fruit.

21. Much of his work involved the inspection of slaughtered carcasses that were transported on a chain past fixed positions occupied by several inspectors.. Inspectors occupying different positions were responsible for checking different portions of the carcass. An inspector was equipped with a large knife and would make cuts in the carcass and organs, looking for cysts, evidence of disease and other imperfections. It was a responsible job: the inspectors had to ensure the meat met stringent standards imposed on exporters. The inspectors had the power to stop the chain (ie, halt the production process) at any point if they discovered a problem. Inspectors were allocated to other parts of the plants, such as the offal room and the load-out facility, and there was a canning plant and a related operation at Port Alma.

22. AQIS management and the supervisors took the standards seriously and individual inspectors were expected to be diligent in their work. Inevitably, there was a level of stress associated with the inspector's job. They were under pressure to be decisive in the administration of the standards. A decision to stop the chain had serious financial ramifications for the owner of the meat-works, while a failure to detect a problem could have disastrous consequences for the industry as a whole. Mr Macarthur's commendation for identifying a carcass that was infected with tuberculosis illustrates the point.

23. The applicant was not directly involved in the slaughtering process. That was the responsibility of meat workers employed by the companies that ran the plants. Even so, the work was noisy, smelly and very unpleasant. A meat processing plant is no place for the squeamish. It is also a dangerous place: men wielded large knives in close proximity to each other. The applicant spoke of the risk of contracting diseases, like brucellosis and Q fever. It was a hard job that attracted hard men (and inspectors were mostly men, until comparatively recently).

THE APPLICANT'S MEDICAL CONDITION

24. The applicant's treating psychiatrist is Dr Barry. He was referred to her by his general practitioner, Dr Forker. Dr Barry says in her report dated 5 May 2000 that Mr Macarthur suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. In the course of her oral evidence, she noted she had read Dr Varghese's report and agreed with his conclusion that the applicant suffered from a major depressive disorder at some point. She said that diagnosis was more serious and took precedence over her earlier diagnosis.

25. Dr Barry conceded in her report there was a history of depression and anxiety within the Macarthur family. The applicant's mother had been treated for those conditions for much of her adult life. She also conceded Mr Macarthur probably experienced some psychological symptoms in 1987, as his marriage came to an end - including depressed mood, anxiety and sleep disturbance. (Mr Macarthur conceded his former wife had commenced a same-sex relationship with someone else following the marriage breakdown, but denied he was especially distressed by that development. He said he was distressed by the comments of some of his workmates to the effect that his wife had left him for a woman because he was inadequate.) But Dr Barry said the applicant's reaction was not uncommon in the circumstances of a marriage breakdown, and did not constitute a specific psychiatric disorder, like major depression. She did not assign any particular significance to evidence that Mr Macarthur was prescribed drugs by his general practitioner in 1987 that were normally used in the treatment of depression.

26. She was asked in the course of her evidence about Mr Macarthur's ongoing symptoms. She said Mr Macarthur's condition had improved when he left the workplace, but subsequently deteriorated. She said that was probably attributable to stress associated with the litigation. The proceedings caused him to be exposed over and over again to memories and events and people that he found stressful. She doubted whether he could return to AQIS, even if the personnel and management practices had changed.

27. Dr Varghese gave evidence on behalf of the respondent. He is an impressive witness. He concluded the applicant suffers from recurrent major depression. He said Dr Barry's original diagnosis of an adjustment disorder could not stand because the symptoms should have subsided once he had left work, and they had not. He also said that one cannot make a diagnosis of adjustment disorder if one fulfils the criteria for another disorder such as major depression - which is the case here. As Dr Varghese explained, depression takes precedence over anxiety because it contained the symptoms of anxiety. In Dr Varghese's opinion, the applicant had suffered from a mild chronic dysthymia. He was vulnerable to the condition because of constitutional reasons (for example, there was a family history of depressive disorders), but the question arose whether the illness was triggered or aggravated by workplace stressors. Dr Varghese used the expression "multi-factorial" and suggested in his report and evidence-in-chief that the other factors (eg, the family breakdown) were more likely to be the trigger for the development or aggravation of the disease. In the course of cross-examination, he conceded the workplace events described by the applicant could have contributed to the development of a depressive disorder in someone who was predisposed - if one accepts those events occurred.

28. I accept the applicant suffers from recurrent major depression in light of the medical evidence.

MR MACARTHUR'S EXPERIENCES IN THE WORKPLACE

29. Given the evidence of Dr Varghese in particular, it is necessary for the Tribunal to determine what occurred in the workplace while Mr Macarthur was employed by AQIS. I will begin by dealing with the applicant's account of specific incidents and individuals before turning to the witnesses and the conditions in the meat processing plants more generally.

ROD MACARTHUR

30. The applicant gave evidence over two days at the hearing in Rockhampton and was recalled to give evidence in Brisbane. His handwritten statement in the form of a letter dated 28 July 1999 was tendered in evidence, as was his supplementary statement dated 21 May 2002 and a further statement in narrative form that was provided to Dr Barry. The T documents also include a lengthy statement in the form of a letter dated 10 August 1999 (T13). The letter is addressed to Comcare. I have already described my impressions of Mr Macarthur.

31. The applicant worked for AQIS in Rockhampton for around 26 years, commencing in August 1973. He took leave in March 1999 and has not returned to work.

32. Mr Macarthur described a workplace with poor management practices over a long period of time. In the statement supplied to Dr Barry, he spoke of starting work in the early 1970s in a harsh environment at the Lakes Creek plant. The plant was dominated by Cyril Dendle, the senior supervising meat inspector. The applicant depicted Mr Dendle as a brute with primitive ideas on how to manage staff. The applicant said Mr Dendle would challenge inspectors who left their work-stations to go to the toilet or get a drink, and he refused to rotate staff around the various tasks in the plant to alleviate boredom. Mr Macarthur said being stuck in the same job promoted injuries: he attributes the development of a repetitive strain injury that still bothers him to the work practices he was required to adopt during this period. The applicant also alleges Mr Dendle rewarded his friends with favourable overtime arrangements, and punished others. The applicant spoke (in his statement provided to Dr Barry) of Mr Dendle's whispering campaign against one of the veterinary officers. Mr Dendle retired in the 1980s. But the applicant also suggested in his statement (at T13) that his problems did not start until after Mr Dendle was replaced by Leonard Talbot.

33. It is difficult to know how much weight one should assign to the specifics of the applicant's claims about Mr Dendle. Mr Dendle was not available for cross-examination, and there was no corroboration of the claims. But the applicant did not appear to rely heavily on the alleged behaviour of Mr Dendle in any case.

34. The applicant's account of his relationship with John Boyle is much more important. Indeed, it is central to the applicant's case. Mr Boyle started work as a meat inspector in Rockhampton at about the same time as the applicant. He was originally on the same grade as Mr Macarthur. He was known as "Rocky", Mr Macarthur explained, because of his prowess as a boxer in the British Army. The applicant said he understood Mr Boyle had been a member of the Special Air Service. (He was not. He served as a gunner-driver in the RAF regiment). The applicant mentioned in cross-examination that Mr Boyle had a scar he was mysteriously reluctant to discuss. I did not see any evidence of a scar. Mr Boyle also allegedly spoke of spending time in the lock-up during his army service for attempting to organise some sort of illegal group.

35. The applicant said he had a reasonable relationship with Mr Boyle at first. The two men would talk at lunch about building and repairing houses, and there was evidence the applicant might have loaned tools or other equipment to Mr Boyle. (Mr Boyle agreed this was so in the course of his testimony.) Mr Macarthur also acknowledged Mr Boyle was a very competent and efficient meat inspector. But the relationship started to change. The applicant said in his evidence that Mr Boyle would talk openly about the need to change management practices and personnel in the plants in Rockhampton. (In his statement to Dr Barry, the applicant said Mr Boyle and Mr Dendle would have rows, and he suggested other staff and managers noticed Mr Boyle and Mr Dendle did not get on.) Apparently Mr Boyle was active in the union, and used his influence over the local branch to bring pressure to bear on management. Mr Macarthur says he told Mr Boyle, "I have a high regard for Len Talbot [the supervisor]" and "I prefer to recognise the existing chain of command and carry out their instructions" (T13 at p34).

36. Mr Macarthur said Mr Boyle developed contempt for him. He said Mr Boyle clearly did not think he was a competent meat inspector, and would routinely criticise his work and belittle him in front of colleagues and supervisors. Jeffrey Swift agreed that Mr Boyle would refer to the applicant as a "communist".. The applicant painted a picture of an explosive and angry man who was capable of sudden violent behaviour, and who routinely used violence to resolve any problems. The applicant's description of Mr Boyle was echoed (although with less vehemence) by some other witnesses, like Eric Hamilton. I found this description of Mr Boyle was hard to reconcile with the perception I formed of him in the witness box.

37. The applicant referred to several incidents in particular. The most serious of these occurred one day when Mr Macarthur and Mr Boyle were working alongside each other on the chain. Under cross-examination, the applicant was unable to be specific about dates. He thought the incident occurred sometime in the mid-1970s. He described the incident in these terms in his statement (at T13, pages 34-35):

"On rostered return to Lakes Creek Abattoir I was immediately rostered to work alongside J Boyle, again in the head and tongue inspector position. He suddenly turned toward me and moved in close, he held his knife in the blade up position against my abdomen, the blade tip at my solar plexus and touching my shirt. I could feel his knuckles against my abdomen, he began in a raised voice to verbally assault me at knife point he shouted `You fucking bastard I'll kill you, I'll open you up and drop your guts on the floor, don't think I won't do it you cunt because I fucking will.'"

38. Mr Macarthur claimed in his statement (T13 at p35) that Mr Boyle repeated the threat several days later, saying:

"You stay away from me you fucking bastard, you keep right away or I'll do something serious, don't come anywhere near me!"

39. The applicant says Mr Boyle held a knife against him on the second occasion as well and said:

"I will take you outside and knock you down, you useless cunt."

40. During the course of the cross-examination, I came to doubt whether the second encounter occurred at all. It may have been the applicant was confused about what occurred, and when.

41. Mr Macarthur said he complained about the first incident to Len Talbot, the supervisor at the time, and to the veterinary officer in charge, John Owens. Ashley Girle, a vet from Brisbane, met with Mr Boyle and the applicant in an attempt to resolve the dispute. The applicant says he was called to the office to discuss the matter only to find Mr Boyle standing behind Mr Girle. The applicant said he felt intimidated and agreed to shake Mr Boyle's hand as an end to the matter. Within days, the applicant said Mr Boyle had threatened him again, telling him (T13 at p36), "Don't think you're in the clear, you bastard, don't think this is finished, I'll get you yet". The applicant said he wrote about the incident to the Regional Executive Officer, Peter Robinson, but he was advised to seek a "local" solution. There was talk of Mr Boyle bringing proceedings for defamation.

42. The applicant said the knife threats were not isolated incidents. He says Mr Boyle threatened others as well. He spoke of a fight between Mr Boyle and Jeff Swift on the chain one day. The applicant claimed Mr Boyle sliced Mr Swift across the face with a large knife. The applicant said the wound required stitches. There was no scar in evidence on Mr Swift's face where the applicant said it would be, and Mr Swift dismissed it as a minor scuffle. So did Mr Boyle, although there were some inconsistencies in the details offered by each of them. While I do not accept the incident could be characterised as a potentially lethal knife-fight in the sense described by Mr Macarthur, Mr Swift was clearly anxious to down-play what occurred. I formed the impression the incident was more serious than Mr Swift and Mr Boyle were willing to admit, even if it was not as vicious as Mr Macarthur suggested.

43. The conflicting evidence offered by Messrs Swift and Boyle on the one hand and the applicant on this point was part of a pattern. I have already suggested I am satisfied Mr Macarthur was prone to exaggeration in his claims about specific incidents. But Mr Swift's demeanour in particular was that of one who protested too much. The witnesses called by the respondent tended to "close ranks" around Mr Boyle, and against the applicant and those who had given evidence on his behalf (such as Mr Hackett, who was known as "Mr Bean", according to Mr Swift). That is not remarkable in adversarial proceedings. Even so, I formed the impression of individuals called by both sides who tended to be advocates of a view rather than witnesses to events. This was a deeply politicised workplace.

44. The applicant also said Mr Boyle had come to blows with a company clerk, Ray Farrow. Mr Boyle conceded there had been an altercation with Farrow, but - once again - insisted it was an isolated incident that involved pushing and shoving in a small office rather than a serious brawl.

45. Mr Macarthur spoke of routine (about once a month) verbal altercations with Mr Boyle. The applicant described them as violent verbal assaults that would typically include threats of physical harm. He said (T13 at p37) the worst attacks occurred in the lunchroom in front of other meat inspectors and supervisors. Mr Boyle would abuse him and the supervisors would do nothing. He says he asked Mr Nicholas Dash, a veterinary officer, and Jeff Swift to note what occurred but they refused.

46. The applicant described one incident in the lunchroom in particular. He said the lunchroom at the Lakes Creek plant had swinging doors. He was entering the lunchroom as Mr Boyle was leaving, and it was unclear who had right of way. Mr Macarthur said (T13 at p39) Mr Boyle:

"tackled me in the doorway and pushed me back against the passage wall on this occasion and said `If you don't get out of the way when you see me coming I'll throw you down the fucking stairs!'"

47. The applicant said a number of people witnessed the incident, including Wayne Elliott, the senior meat inspector in charge. The applicant said Mr Elliott responded: "It's not my job to sort things out between people."

48. There was also a good deal of discussion about graffiti and nicknames in the course of the evidence. Mr Macarthur was widely known as "the Rodent".. It is unclear why. It may have been a play on his name, but the applicant did not seem to think so. He thought it was mean. There was some reason to believe that. Mr Boyle suggested in his evidence that the applicant earned his nickname by taking coffee and tea purchased out of a communal fund to which he did not contribute. I will have more to say about the widespread practice of using nicknames in the workplace elsewhere. But the use of the nickname in connection with graffiti on the toilet walls was of particular interest.

49. The applicant tendered photographs of graffiti on the toilet walls at one of the plants. One of the photos showed the words "Little boys beware of the Rodent", which the applicant took to be an allegation that he had sex with boys during his overseas trips. Another photograph showed the words "Asian boys bums by Rodent" which was consistent with that belief. There was other graffiti on the walls, referring to someone called "Jabba" who was described as a "fuckwit". It is not clear who "Jabba" was or what he or she might have done to attract the ire of a workmate. In any event, the applicant said the graffiti remained on the wall for some time before management took steps to have it cleaned.

50. There was also some graffiti placed on a hair-net dispenser. The inspectors covered their heads with nets for obvious hygiene reasons. The applicant also had a beard so he was required to wear a net over his chin. Evidence was given that someone had defaced the beard-net dispenser with the words "Snot-catcher". Mr Macarthur was one of the few AQIS inspectors who wore a beard and he also suffered from hay-fever. He took the graffiti to be another personal attack.

51. There was also evidence of an entry in the works' diary that described the applicant and another inspector, Mr Goddard, as being worth only half an inspector each. Mr Macarthur took that to be another comment on his prowess and evidence of hostility.

52. Mr Macarthur said he felt Mr Boyle would tell other meat inspectors - especially some of the newer inspectors - that they should avoid the applicant because of his views and his level of competence.

53. Mr Macarthur suggested he was discriminated against with respect to overtime. But he also said in the course of his cross-examination that he was happy with the rosters, and he was content to work wherever he was sent provided he was left alone. Mr Boyle did not accept there was any discrimination. He said the rostering system was carefully devised - by the union. It was fair and reasonable, he said. Mr Swift explained the union took over responsibility for rostering in the plants in order to reduce complaints and the incidence of disputes. He said it was common practice in the early years (ie, prior to 1992) to use nicknames in the works' diary and rosters. (Robert Swift agreed this was so.) He also said the diaries were readily accessible to all the inspectors. Anyone could have altered them or made abusive annotations like those Mr Macarthur claims he saw in the diary.

54. The claims about discrimination in the allocation of overtime are difficult to resolve given the active role of the union. Mr Macarthur was nominated by his workmates to the executive of the local branch of the union at one point. At first glance, that is difficult to reconcile with his claims that he was being vilified by many of his workmates. But it becomes easier to understand if one appreciates how the union operated.

55. The local branch of the union enjoyed considerable autonomy. Given the relatively small number of inspectors, it was possible for a few powerful personalities to dominate its activities. Mr Boyle spoke of the rostering system and union issues generally and it was apparent he had a powerful voice in the organisation. He said the applicant had approached him about obtaining a union position because Mr Macarthur wanted to travel to Nicaragua, and he thought it would be of assistance. Mr Boyle obviously did not oppose the applicant's request, and may have even had a role in arranging his appointment. But he was critical of Mr Macarthur for failing to support the union line on a number of positions. By way of example, Mr Boyle said the union had fought hard to get an entitlement to living away from home allowances that was generous enough to cover reasonable accommodation expenses. Mr Boyle said the applicant would stay in a tent when he was travelling on AQIS business, which undermined the union's position. It was obvious from his evidence that Mr Boyle felt very strongly about the union's role and the entitlements it had secured for the inspectors. In any event, it was apparent from Mr Boyle's evidence in particular that the applicant was not elected to office as a result of his popularity or commitment to the union.

JOHN BOYLE

56. The applicant's statement (at T13) depicts Mr Boyle as the applicant's nemesis. Although allegations about others were made at the hearing, the character and conduct of Mr Boyle remains central to the applicant's case. I was expecting to meet a swaggering, aggressive individual when Mr Boyle was called to give evidence. He turned out to be a short, dour man. He was not volcanic: to the contrary, he struck me as a carefully controlled individual who spoke and acted deliberately. Paradoxically, he also had a certain charisma, and it became obvious during the course of his evidence (and the evidence of others, like Jeffrey Swift) that he commanded the respect of his fellow inspectors and AQIS management. This was illustrated when I asked him whether he was aware of any nicknames being applied to him by his workmates. He said he was aware he had been called "Jock Strap", but added with a knowing smile that no one ever used the name to his face.

57. Mr Boyle worked alongside the applicant for many years, although they were not always allocated to the same workplace or work-station. In latter years, Mr Boyle occupied a supervisory position with respect to Mr Macarthur. He says he neither liked or disliked the applicant. He says he was cordial in his relations - he would say "good-morning" to the applicant, often without receiving a response.

58. Mr Boyle said he did not hold a grudge following the incident where he was accused of attacking the applicant with a knife, even though he said he was also accused of threatening the applicant's family. He had no hard feelings about the applicant in any connection at all, he suggested. He said he never pushed or shoved the applicant or anyone else (although he alluded to the incident involving Mr Farrow, and agreed there was some jostling in an office and subsequently outside in the carpark). He said he did not come into contact with Jeffrey Swift during an altercation on the chain - Swift came towards him but slipped, and Mr Boyle said he helped Mr Swift to his feet.

59. Mr Boyle said heated words were occasionally exchanged between inspectors in the workplace, but pointed out that the works was a dangerous place and he took safety and other workplace issues seriously. He said, in effect, that a certain level of direct talk was inevitable in the circumstances although he said he did not ordinarily swear. He expressly denied describing the applicant as "a fucking idiot".. He said the incident in the lunchroom at one of the plants, in which Mr Macarthur had come through the swinging doors and collided with him, was exaggerated. He said the applicant was being thoughtless and flung open the doors in a dangerous way. He said he spoke sternly to the applicant but denied there was any physical contact or threat of violence. (Mr Turner, who was called to give evidence by the applicant agreed there was no physical assault.) He said he did not lose his temper - he rarely did, he added. It was simply a safety issue.

60. Mr Boyle also denied describing Mr Macarthur as a "commie cunt", although he agreed he would refer to the applicant as a communist. Mr Swift says Mr Boyle was quite free with that description; he said Mr Boyle would often say, "There goes the Communist" when Mr Macarthur walked by.

61. It was apparent from Mr Boyle's evidence that he was intensely irritated by Mr Macarthur's political views, and by his advocacy of causes. He said he was annoyed by the applicant's practice of approaching new, younger inspectors to discuss his communist beliefs in an attempt to indoctrinate them. He was also offended by some of the applicant's comments on return from an overseas trip. He said the applicant had claimed it was good to spend time with "real people" while he was away.

62. Mr Boyle denied that he had ever teased Mr Macarthur about the circumstances of his marriage breakdown. In particular, he denied he had ever said words to the effect "Lesbians leave sexually inadequate husbands", but conceded he heard others say things like that in Mr Macarthur's hearing.

63. Mr Boyle was clearly a very competent and professional meat inspector. He said his experience was valued throughout AQIS, and he was confident he enjoyed the respect of his colleagues. The demeanour of other inspectors (like Mr Swift and the applicant) when they were referring to Mr Boyle suggested Mr Boyle's assessment of his standing and influence was right. It was apparent management held him in high regard: he got the job done. He spoke in his evidence of the importance of his work. He presented in the witness box as a diligent - even zealous - observer of rules and procedure. He was a jealous guardian of his position and privileges as a senior meat inspector, too. Mr Harding questioned him about his relationship with Mr Dalzell, who transferred into Rockhampton from outside on the same formal grade as Mr Boyle. Mr Dalzell had been on that grade for longer than Mr Boyle, which might suggest he was the senior of the two. It was clear there was tension between the two men because Mr Boyle regarded the other man as competition. But Mr Boyle confirmed in his evidence (with an air of satisfaction) there was no animosity as such between the two because Mr Dalzell had been informed by management - apparently at Mr Boyle's instigation - of its preference for Mr Boyle.

64. Mr Boyle's insistence on rules, procedures and position was apparent in his approach to union issues as well. He made it clear in his evidence that he believed the union had an important role to play in securing benefits for the workforce. He insisted privileges be exercised on principle once they were obtained. I have already referred to Mr Boyle's criticism of Mr Macarthur over the applicant's failure to stay in appropriate accommodation when away on AQIS business. The attitude also came out in Mr Boyle's explanation of the incident involving Mr Farrow. The incident arose because Mr Farrow, a clerk, was occupying a small office that was intended for use by AQIS personnel. The room was not really big enough for two people. When Mr Boyle arrived, he insisted Mr Farrow leave because the room was not intended for him. It was clearly a matter of principle as far as Mr Boyle was concerned. There was a scuffle of some kind, and the dispute ended some time later with the antagonists trading slaps in a car park.

65. While Mr Boyle had an excellent reputation as a meat inspector, he had a very low opinion of Mr Macarthur's skills. Mr Boyle said the applicant was lazy. He said he may have described him as a "lazy bastard". It was clear from his evidence that he did not intend the epithet "bastard" in a jocular sense. He also raised questions about the applicant's competence more generally. He said the applicant had to be counselled about mutilating tongues at one point. He was dismissive of the commendation the applicant received for identifying the carcass contaminated with tuberculosis. He said anyone could have spotted it.

66. Mr Boyle also had little sympathy for Mr Macarthur's various ailments - most obviously, his sinus troubles. He thought the applicant's various illnesses were part of a deplorable pattern of laziness. He regarded the applicant's hay-fever as little more than an excuse to go home early.

67. Mr Boyle said he did not volunteer his views of Mr Macarthur's prowess and application to others, but he would freely tell them his opinion if asked. While it might be fair enough for him to make comments about a person under his supervision to another supervisor with a legitimate interest, there was no evidence that Mr Boyle confined his comments to those circumstances.

68. It was apparent Mr Macarthur's intellectualism (or what Mr Boyle would regard as the applicant's pretence to intellectualism) offended and annoyed Mr Boyle. Mr Dalzell said Mr Boyle would "boil" whenever the applicant's name was mentioned. The antipathy was deepened by Mr Boyle's contempt for the applicant's skills as a meat inspector. Mr Boyle's opinion would have been obvious to all of the other inspectors, and it would have carried weight given his standing within the organisation and the union, and by virtue of his charisma. While I find it difficult to accept Mr Boyle was the brawler depicted by Mr Macarthur, I have no doubt his antipathy for the applicant set a tone and sent a signal to the rest of the inspectors, who might have been more impressionable. Mr Boyle's hostility to the applicant was palpable.

JEFFREY SWIFT

69. Mr Jeffrey Swift's evidence was of considerable interest. He was a supervisor who worked with Mr Macarthur and Mr Boyle over a long period. He said he had no trouble with Mr Boyle apart from the one incident described previously, and he sought to down-play its significance. He explained that tensions could be expected to boil over in the intense and dangerous environment of a meatworks.

70. Mr Swift said he and Mr Boyle would discuss the applicant's performance - they were his supervisors, after all. He said Mr Boyle was critical of the applicant's skills and application. Even so, he suggested Mr Boyle only used mild language when talking of Mr Macarthur. He said Mr Boyle never swore about Mr Macarthur in front of him. Mr Swift shared Mr Boyle's low opinion of Mr Macarthur's skills and his lack of application to the job. He also denied describing the applicant as "an idiot" and "a dickhead": he said he would only ever say he was "not a good meat inspector." Although Mr Swift initially suggested he only ever shared that view with other supervisors, he conceded during cross-examination that he would impart it to anyone who asked. He conceded, for example, that he may have described the applicant as "useless" in a conversation with Mr Turner.

71. Mr Swift's account of his clinical descriptions of Mr Macarthur's skills did not ring true. Mr Swift did not impress me as a man given to moderate expression. His discussion of the applicant's political views illustrates the point. Under cross-examination, he said the applicant would often volunteer his communist views and press them upon anyone who would listen. During the course of these remarks, he became quite excited, and opined that he and other inspectors ought to be suing the applicant for harassment given the way he went on and on and on about his communist views. Not that Mr Swift was worried about that, he added as an afterthought.

72. Mr Swift was asked about the applicant's assertion in document T13 that Mr Swift had declined to intervene in an altercation between the applicant and Mr Boyle in the lunchroom at one of the plants. The applicant said in his statement that Mr Swift apologised for his inaction, explaining:

"I'm sorry I didn't do something about him when I had the chance but Charlie Kielback and Dave Grimmett begged me not to."

73. Mr Swift denied he said that. He said the applicant's reference to Mr Kielback in particular showed the statement could not have been true. Mr Kielback was a Mason and Mr Swift was a Catholic. Mr Swift said Masons and Catholics did not mix in those days, and there were very strong feelings between adherents of the two faiths within AQIS. Even if Mr Macarthur's account of the conversation cannot be relied upon, the description of a workplace that was apparently characterised by sectarian rivalry is hardly reassuring - particularly in circumstances where there was no evidence that Mr Macarthur fell within either camp.

74. The evidence relating to the use of nicknames in the workplace was informative. It seems that almost every AQIS inspector had a nickname before the MPRA report concluded the practice should end. Mr Dalzell agreed in his evidence that this was so. Everyone used nicknames, including supervisors. Some of the nicknames Mr Swift referred to were harmless enough: one of the inspectors was known as "Orchy" because of his taste for orange juice. Some of them were more acute: Mr Hackett was known as "Mr Bean" (a name that was obviously not meant kindly, if Mr Swift's demeanour in the witness box is a guide - although he said Mr Hackett earned the title because he looked like the television character. Mr Swift volunteered he was known as "Towtruck" because he was "headed for a breakdown". Mr Swift added he and his twin brother (who was also an inspector) were known collectively as "the Wit Brothers": "Half Wit" and "Fuck Wit". Mr Swift did not think any of the nicknames were meant maliciously although he conceded he complained to management when a supervisor had referred to him as "Fuck Wit". He did not see anything sinister or nasty in Mr Macarthur's nickname "Rodent". He pointed out "Rodent" was probably a preferable handle to "Wit Brother".

75. Mr Boyle referred to other nicknames: "Heckel" and "Jeckyl" were named after the cartoon characters because they talked too much, for example. Mr Turner said Mr Elliott was known as "Poo" because "he was full of shit". Mr Dash said Mr Fishburne was known as "Fishy", Bob Swift was known as "Maggot" (because he was "a grub"), although Mr Dash said Bob Swift would insist on being referred to as "Mr Maggot".. Mr Lindstrom said the much-maligned Mr Goddard was known as "Oink" because of his weight. I have already spoken of "Jabba" and "the Rabbit" who were referred to in the graffiti in the amenities block, although they were never identified.

76. Mr Swift was quick to deny he had ever heard an inspector refer to Ms Ralda Liesagang, a female inspector employed during the 1990s, as "Slit Arse".. Robert Swift explained that the term was not used to describe Ms Liesagang in particular, but was instead a reference to female cattle. He added that it was a term used by slaughterman to describe females generally.

77. Mr Swift also provided some evidence about practical jokes and what might euphemistically be called "horseplay" in the amenities block. He was asked about allegations that Mr Goddard had been chased around the shower block by another inspector who pretended to sodomise him. Mr Swift said he was unaware of that incident but suggested it was all just high spirits. He conceded that sort of conduct was unacceptable at AQIS following the MPRA report.

78. Mr Swift defended the practice of using nicknames - even their use by supervisors in rosters and other documents. (Mr Boyle said that never occurred. Of course, Mr Boyle also said he doubted there was any graffiti on the walls in the amenities blocks either, but the applicant produced photographic evidence of the handiwork of at least one vandal.) He said it was a meatworks after all, and men working in meatworks used nicknames. It was a tough environment in the 1970s, he explained. He acknowledged the use of nicknames would not be tolerated today. He also said the applicant could have complained to management about the use of nicknames and something might have been done, but it would almost certainly have been counterproductive. He said if anyone reacted to a nickname, they could expect it to be used even more frequently.

79. The environment may have changed at AQIS since the MPRA report was delivered, and following a large-scale reorganisation of the authority's operations that commenced in 1996. But we are dealing for the most part with what occurred prior to that point. Mr Swift implicitly accepted that all of this behaviour - the name-calling, the horseplay - was inappropriate. He defended it by saying: "20 years ago we didn't even know what the word `harassment' meant!" Perhaps that is the point: AQIS management should have recognised the behaviour of these employees for what it was at the time.

RICK TURNER

80. Mr Turner gave evidence about the way the applicant was treated by what he described as "the old Guard" of inspectors, which included at various times Messrs Boyle, Talbot, LaSalles, Fishburn, Elliott and the Swift brothers. He said members of the Old Guard would victimise the applicant by trying to embarrass him. He gave the example of Wayne Elliott (whose attitude Ms Liesagang also criticised) who stopped the chain to berate the applicant one day for some shortcoming which was not warranted. He said members of the Old Guard would criticise the applicant's competence in front of anyone who would listen. He referred in particular to Mr Boyle's cutting tongue. He said Mr Boyle would not hesitate to say mean things to Mr Macarthur, and to dress him down in front of other people. Other, more junior inspectors would follow their lead and make fun of the applicant and run down his character in front of new inspectors.

81. Mr Turner said the applicant's tendency to speak honestly made him his own worst enemy. He had strong views on a range of issues, including women and Aboriginals that were unwelcome in the meatworks. He denied the applicant was "pushy" but conceded he was certainly forthright. The applicant was not a conformist, Mr Turner said.

82. Mr Turner said AQIS managers, including Mr Lindstrom and Mr Dash, knew of the name-calling. He said the nickname "Rodent" was used in front of management regularly.

83. There was clearly a degree of animosity between Mr Turner and some of those he referred to as being members of the Old Guard. While I approached what he said with some caution, I am satisfied he was a witness of truth who described a desperately unhappy workplace where bullying was common-place, and where management was ineffectual.

STEVE DALZELL

84. Mr Dalzell came to Rockhampton on the same grade as Mr Boyle. He said he was gradually accepted by the other inspectors, and had no axe to grind with particular individuals or with AQIS. He has subsequently left the employ of AQIS.

85. Mr Dalzell said he was appalled by the way in which the applicant was treated with derision. Messes Boyle, Swift and Elliott would constantly criticise his work and say he could not be trusted. While others, such as Mr Goddard, also came in for harsh treatment, Mr Dalzell said Mr Boyle reserved special vitriol for the applicant.

86. Mr Dalzell said AQIS managers - specifically, Veterinary Officers Lindstrom and Dash - must have known about the applicant being called "Rodent". He said the veterinary officers shared facilities at one of the plants in particular and inevitably saw and heard how Mr Macarthur was treated.

NICHOLAS DASH

87. Mr Dash was one of the veterinary officers who formed part of the AQIS management hierarchy. He worked in Rockhampton at the time of the MPRA investigation into Mr Hackett's complaints.

88. Mr Dash said he was aware of an issue over the use of nicknames in the workplace because that had been raised in connection with Mr Hackett's complaint. After making inquiries, he became aware that - for example - Mr Bob Swift was known as "Maggot". He said he did not know if he had a nickname, and he was ignorant of the applicant's nickname. He said he thought the applicant was known only as "Macca". That is hard to believe, given the evidence of Mr Turner and Mr Dalzell.

89. The graffiti in the washroom facilities (referring to "Asian bum boys") was difficult to find, Mr Dash said. He became aware of its existence during the course of the MPRA investigation but he did not seek it out because his priority was dealing with Mr Hackett's allegations. There was never any formal complaint from the applicant, he added. In any event, he did not take the graffiti to be a reference to Mr Macarthur. He agreed that if the graffiti was a reference to Mr Macarthur, the applicant would understandably be upset.

90. Mr Dash spoke of the working environment at the two meatworks. He said supervisors and individual inspectors would occasionally speak harshly to each other. He recalled Jeff Swift in particular yelling at people: Mr Dash said he would occasionally tell people to calm down if it appeared to be getting out of hand. But he said he never saw any evidence of Mr Macarthur (or anyone else, for that matter) being singled out for derision, and he claims Mr Boyle did not discuss the applicant's qualities and performance with him. He said he did not see the word "Rodent" used in any rosters. He was aware of the reference to "snot-catchers" by the beard dispensers and he knew the applicant suffered from sinus problems, but did not think anything of it.

91. Mr Dash's description of the workplace is difficult to accept. He did not present to me as a manager who was in touch with those whom he was required to supervise. I prefer the evidence of Mr Dalzell and Mr Turner in particular about what was going on around Mr Dash.

JAMES LINDSTROM

92. Mr Lindstrom was the other veterinary officer who gave evidence. He described the meatworks as a noisy, smelly environment where hardworking men wielded knives in close proximity to each other. He said he was aware of graffiti on the walls but never connected it to Mr Macarthur. He said some of the graffiti was childish. He said the believed the applicant was known as "Macca", not "Rodent". He said his own nickname was "Tired Jim". He also said he did not mix a great deal with the inspectors: he would often sit on his own at lunch, and he had his own office. I was left with the impression that Mr Lindstrom was an even more passive manager than Mr Dash.

93. Mr Turner in particular had suggested Mr Lindstrom resented the way he was treated by the inspectors in Rockhampton. Mr Harding asked Mr Lindstrom about an incident in which Mr Lindstrom discovered his towel had been marked in the washroom with what he assumed was faeces. This became known as "the shit on the towel" incident. Mr Harding suggested to Mr Lindstrom that he reacted angrily to what he took to be yet another act of contempt that was characteristic of working for AQIS in Rockhampton. Mr Harding suggested Mr Lindstrom immediately assumed the author of this insult was Mr Talbot, who was also identified as one of the applicant's principal tormentors. Mr Lindstrom said he did react angrily at first but it subsequently turned out that the mark on the towel was merely a boot-scrape, and it was all a misunderstanding. That may be so, but Mr Harding's point is well taken: Mr Lindstrom was ready to assume the worst because that is the way people behaved in that workplace.

GARRY TALBOT

94. I have already noted Mr Talbot was identified as one of the applicant's principal tormentors. That appeared to be news to Mr Talbot, who spoke of an harmonious workplace. He said all the inspectors were pleasant to each other - they would bid each other "good-morning" and "good-afternoon". Nicknames were used occasionally, but never in an offensive way. He occasionally heard the applicant described as "the Rodent", although he had no idea where the name came from. He said he usually called Mr Macarthur "Rod" or "Macca". On those rare occasions he referred the to the applicant as "the Rodent", it was done playfully. His relations with the applicant were cordial; he said he neither liked or disliked Mr Macarthur. He did not share his views of Mr Macarthur's competence with anyone else. He certainly never saw the applicant being mistreated by Mr Boyle or anyone else. He recalled the applicant approaching him in his capacity as a union delegate for advice on how to handle a dispute with Wayne Elliott at one point, but he denied there was a complaint that warranted investigation. He denied that he wielded any power within the workplace by virtue of his position as a union delegate.

95. Mr Talbot's evidence about the harmonious state of the workplace was unbelievable. His explanations and denials were wholly unconvincing. He said he enjoyed a satisfactory relationship with Mr Lindstrom, which does not explain how Mr Lindstrom would immediately assume he was behind the "shit on the towel" incident.

WAYNE ELLIOTT

96. Mr Elliott, who was a supervisor, also claimed to know nothing of the graffiti on the walls of the amenities block or its import until it was referred to in the MPRA investigation. He said he was aware the applicant was sometimes called the "Rodent", but denied he ever used that nickname himself. Lots of people had nicknames, he explained, but he never heard anyone complain. He denied telling people that Mr Macarthur was incompetent - he said he thought the applicant was lazy and unmotivated, not incompetent. He said he may have spoken to new employees like Ralda Liesagang to warn them about mixing with certain individuals, although he suggested Mr Macarthur may not have been one of the "liars" who was a source of trouble. (Mr Turner appeared to fall into that category, in Mr Elliott's view. The two men had apparently been friends but had fallen out in the conflict over the treatment of the applicant and Mr Hackett.)

97. Mr Elliott said he was aware that some individuals referred to one of the female inspectors as "Slit Arse", although he denied he ever did. He made a number of observations in his evidence about difficulties associated with having women in the workplace. He said he was constantly aware of the risk that one of the women would make an harassment claim. He said that directions from AQIS management about the need to avoid irrelevant discrimination and harassment were posted on the notice board in the works for all to see, but he thought little was actually done about their implementation.

THE OTHER WITNESSES

98. There were other witnesses called by both sides. I will not explore it in detail: after having reviewed their statements and the transcript, I am satisfied they do not add anything to the evidence I have already discussed.

THE EVIDENCE IN SUMMARY

99. I have already made it clear that the working environment in Rockhampton for AQIS employees was poisonous. I do not reach that conclusion lightly: I am conscious that a meatworks is an inherently unpleasant and dangerous place. It is physically demanding work that attracted a hard breed of worker. But even allowing for the nature of the work, I am satisfied the plants in Rockhampton earned their reputation as "stress sheds".

THE EVIDENCE OF DR VARGHESE

100. I return to the evidence of Dr Varghese. Mr Harding asked Dr Varghese to ignore the allegations about the knife attacks and consider how a person who was predisposed to suffer from a depressive disorder might react if he worked over 20 years in a meatworks environment in which:

(b) He was treated with derision by his superiors who questioned his competence in front of others;

(c) He was teased and laughed at by his workmates, and where other workers were the victims of jokes;

(d) He was referred to by a nickname that he regarded as derogatory;

(e) New employees were warned to keep away from him;

(f) There was graffiti suggesting he was a sexual deviant.

101. I have already indicated I accepted all of these things occurred, and more.

102. Dr Varghese responded:

"...if the workplace was as described by yourself, with this abuse and graffiti and accusations of being a sexual deviant of some sort, and the other matters, leaving aside whether he has been threatened with a knife also, would that - would that contribute significantly to depression; I would have to say, yes, it would contribute to the development of a depressive disorder in somebody who was predisposed."

103. I acknowledge Mr Macarthur was predisposed to developing a depressive disorder, and that he tended to externalise (look for external causes of his unhappiness), as Dr Varghese suggests. I also acknowledge there were other stressful events occurring in his life at various points, most obviously his marriage breakdown. But I am satisfied the conditions surrounding his employment as a meat inspector over an extended period were such as to precipitate or at least contribute to the onset or aggravation of a psychiatric illness. That is enough for the applicant to succeed, as Davies J explained in Welsford v Commonwealth Banking Corporation (1984) 1 AAR 42. His Honour said (at 43):

"It is sufficient that the employment contributed to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to the real, approximate or effective cause of the disease or its acceleration, aggravation or recurrence, that that is required is that one such factor exhibits the necessary connection with the workers' employment."

104. I note the Full Federal Court took a similar view in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321. Sweeney ACJ, Sheppard and Foster JJ explained (at 328):

"All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause."

The fact he might have developed a depressive disorder even if he had not been employed at the meatworks as a result of constitutional factors is beside the point. As the Full Court explained (at 328) it is inappropriate to apply a "but for" test: see also Federal Broom Co Pty Ltd v Semlitch (12964) 110 CLR 626 at 641 ff per Windeyer J.

105. The law also makes it clear that it does not matter if the applicant's reaction to the events in the workplace is irrational, so long as there were events to which he did react: see Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 240 per Davies J. Having said that, I do not accept the applicant's reaction to his treatment in the workplace was irrational. While I have found his perceptions were flawed, and in some cases he exaggerated events, there were still unpleasant events in the workplace to which he reasonably reacted: cf Re Van Houten and Comcare (AAT 12339, 24 October 1997); see also Re Forbes and Comcare [2001] AATA 527.

106. I am therefore prepared to accept the applicant was injured in the workplace within the meaning of section 14, which gives rise to an entitlement to compensation. I am also satisfied he is entitled to compensation for the cost of medical treatment necessitated by that condition under section 16.

107. That leaves only the question of whether the applicant has an incapacity within the meaning of section 19. Mr Harding argued that the applicant could not return to the AQIS workplace because his condition would worsen. Mr Harding argued that would be enough to amount to an incapacity, even if the applicant was able to work elsewhere - as he has been able to do. The applicant relies on the Tribunal's decision in Re Harris and Comcare (AAT No 9468, 12 May 1994) where Deputy President Blow said (at paragraph 81):

"...the proper approach is to regard a worker's pre-accident or pre-disease employment as a part of the labour market as a whole, or as a part of the labour market in which the worker works or might reasonably be expected to work. Inability to work in a particular job because of a mental disorder involving psychological or psychiatric problems concerning other individuals employed in the same place would amount to an incapacity to work in that tiny part of the labour market."

108. Dr Varghese explained that depression was a recurrent illness. A person who had an episode of major depression was vulnerable to further episodes. But he cautioned that the causes or factors precipitating the onset of each episode must be carefully assessed. He said the applicant would technically be able to return to work once an episode of depression had passed. If the same stressors that contributed to the onset of the depressive episode in the first place were still present in the workplace, the prognosis would be poor.

109. It is unclear whether the same stressors are still present. A number of the protagonists have retired or died. Some individuals remain. Changes have been made following the MPRA report and extensive restructuring at AQIS. But Mr Macarthur is sceptical about whether anything has changed. Dr Varghese conceded that in circumstances where the applicant perceived that all his problems were due to work, a return to that place of employment was unlikely to be successful.

110. Mr Clark suggested the applicant would only have trouble returning to the Lakes Creek meatworks, if anywhere. He said the applicant could still return to AQIS's other operations in Rockhampton. While it is true the applicant had a harder time at the Lakes Creek plant - the applicant said it was known around Australia as a "stress shed" - his difficulties were not confined to there as most of the AQIS staff circulated through both plants. His difficulties are not specific to one location: they are difficulties with the culture that prevailed at AQIS. While steps appear to have been taken to correct that culture, it is not surprising given the history that Mr Macarthur should have difficulty in appreciating that fact.

111. In circumstances where the applicant is practically unable to return to his place of work, I am satisfied he is incapacitated within the meaning of section 19.

CONCLUSION

112. The respondent's decision is set aside, and the matter is remitted for reconsideration in accordance with these reasons.

I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member BJ McCabe.

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

Administrative Assistant

Dates of Hearing 22-24 May 2002; 24-25 June 2002; and

17-18 October 2002

Date of Decision 14 November 2003

Counsel for the Applicant Mr A Harding

Solicitor for the Applicant Gilshenan and Luton

Counsel for the Respondent Mr C Clark

Solicitor for the Respondent Australian Government Solicitor