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Sosa and Australian Postal Corporation [2010] AATA 30 (18 January 2010)

Last Updated: 19 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 30

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2007/0584 &

GENERAL ADMINISTRATIVE DIVISION
) 2008/1940


Re
FERDINAND SOSA

Applicant
And
AUSTRALIAN POSTAL CORPORATION

Respondent


DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 18 January 2010

Place Sydney

Decision
The decisions under review are affirmed.

..................[sgd]...........................
Ms N Isenberg
Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – psychological condition – injury – disease – whether alleged condition contributed to in a material degree by employment –– decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988: s 5A, 5B

CASE LAW

Comcare v Mooi (1996) 69 FCR 439



REASONS FOR DECISION


18 January 2010
Ms N Isenberg, Senior Member

INTRODUCTION

  1. Mr Ferdinand Sosa applies to the Tribunal for review of two decisions that he is not entitled to compensation for psychological difficulties arising from his work at Australia Post.
  2. Mr Sosa, who is now aged 44, commenced work at Australia Post on 11 September 1996. He worked as a postal services officer.
  3. On 21 June 2006, an incident arose out of events which had culminated on 9 May 2006. It was alleged that on 9 May 2006 Mr Sosa was told by his supervisor, Mr Dooley, that he needed his assistance elsewhere in the mail facility. Mr Sosa allegedly ignored this request and walked away. When requested again by Mr Dooley, Mr Sosa told him to talk to his process leader. Mr Dooley told him that he had spoken to the process leader and that Mr Sosa then allegedly said “you are full shit and I have the documentation to prove it”. Mr Sosa was advised that his behaviour was unacceptable and a serious issue. He continued walking away, and went to the process leader and advised her that he was going home sick. Mr Dooley followed and Mr Sosa turned around and allegedly said to him “you backed up Virgillo, you are both liars and full shit”.
  4. This behaviour then resulted in a Disciplinary Inquiry interview. On 16 June 2006 the Enquiry Officer, Mr Stavropoulos, found that Mr Sosa had failed to treat everyone with courtesy, patience and respect, and had failed to comply with a direction given. On 21 June 2006, Mr Dolaghan, a manager at Australia Post, gave Mr Sosa a letter enclosing a copy of the report which recommended dismissal, and which gave Mr Sosa five days to forward a statement or seek a meeting with Mr Sadler, the facility manager.
  5. When Mr Sosa returned to work for his next shift, at about 11.30 pm that same night, Mr Dolaghan allegedly said words to the effect: "You are not supposed to be here on the premises ... as of now, you are terminated." He then confiscated Mr Sosa’s ID and escorted him, with two security guards, to clear his locker and leave the premises.
  6. Mr Sosa felt ‘totally humiliated and very depressed’, and two days late consulted his local general practitioner, Dr G Singh.
  7. On 10 July 2006 Mr Sadler, the facility manager, wrote to Mr Sosa and informed him that he was dismissed from his employment with effect from 10 July 2006. Following meetings with Mr Sadler, Mr Sosa appealed to the Board of Reference, which ultimately quashed his dismissal after a hearing in October 2006. Subsequently, a position was offered to Mr Sosa at the Sydney Parcel Facility at Chullora, which, if he declined, his termination would continue. Mr Sosa accepted this offer on 18 October 2006 but never commenced the position.

HISTORY OF THE APPLICATION

  1. On 9 July 2006 Mr Sosa lodged an incident form alleging that on 21 June 2006, at approximately 11.30 pm, he suffered an “adjustment disorder” after a manager, Paul Dologhan, read a document to him and said “As of now, you’re terminated.”
  2. On 20 October 2006 Mr Sosa filed a Claim for Compensation, alleging an “adjustment disorder mind” arising from the alleged incident. Liability was denied, and that Determination was affirmed on reconsideration on 3 January 2007.
  3. On 12 April 2008 a claim was made for permanent injury alleging:

“Anxiety, insomnia and depression, adjustment disorder”.

  1. Liability was again denied, and that Determination was affirmed on reconsideration on 30 April 2008.
  2. It is the Reviewable Decisions of 3 January 2007 and 30 April 2008 which are now before the Tribunal.

LEGISLATIVE FRAMEWORK

  1. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

ISSUES

  1. The issues that need consideration in this matter are:

MR SOSA’S EVIDENCE

  1. Mr Sosa joined Australia Post in 1996, working first in the Sydney Business Centre. Prior to his transfer to Sydney West Letter Facility in 2000, he had difficulties with a supervisor who he claimed was abusive. He described the disciplinary action against him as a “manipulation and abuse and misuse of authority”. He allegedly attempted to strike a supervisor and had to be restrained by other staff members. He said he was just striking a pose. He characterised the fact that he was sent for anger management as “an abuse”.
  2. There was also a harassment charge for touching a fellow employee, but he said he thought she was a bit sensitive because she was a Muslim, and he was only trying to ”lighten her up”. He claimed that a similar “joke” had been directed towards him by other employees at the centre.
  3. Mr Sosa came under the supervision of a fellow Filipino, Mr Virueda, in 2003. He said Mr Virueda repeatedly raised problems about his failure to blow the horn of his forklift. Mr Sosa said he blew the horn “as necessary”. He said Mr Virueda just made it up to ”give [him] a record, to make it appear as disciplinary action so that they could get rid of anybody that he doesn’t like”. He thought Mr Virueda didn’t like him because ”he has been told by the management and he told me that I’m troublemaker before I get there to that section”. He thought Mr Virueda, and also others who made complaints about him, ‘maybe they got a problem with their life’.
  4. Another employee, Mr Ngyuen, made a complaint that Mr Sosa was not working as hard as the rest of the team, but Mr Sosa thought Mr Virueda was behind the complaint.
  5. By August 2003 Mr Sosa believed he was ”being manipulated”. At that time Mr Virueda had spoken to him about driving the forklift too close to a team member, Mr Madridano. Mr Sosa said he had to avoid dirt, which was swept into the middle of the floor, and while he came close to people, he had slowed down; he considered it to have been safe. He thought the complaint was to make him look bad.
  6. In February 2004 there was a ‘face-to-face’ interview with Mr Virueda about failure to sound his horn. Mr Sosa thought he was being asked to do something that was unnecessary, although he acknowledged those had been his instructions. He thought unnecessarily blowing the horn would be an ”abuse and misuse of authority”. He agreed that his instructions were to sound the horn if there was a blind corner, but he did not think there was a need to sound the horn in those circumstances.
  7. In March 2004 Mr Sosa was spoken to about arriving late, albeit by only five minutes. He said he had in fact come in early but had been engaged in other tasks.
  8. Mr Sosa recalled an occasion on 28 April of 2004 when Mr Virueda raised the issue of his failure to sweep the area where he was working. Mr Sosa said when Mr Virueda had seen him sweeping the floor the previous day he had said that he wanted Mr Sosa to clear up the unit loading devices (ULD) instead, because the sweeping was ”not important”. The following day he went to work on the ULDs but Mr Virueda said he wanted him to sweep the floor, although there were already two people doing it. Two days later Mr Sosa consulted his doctor, because he said he felt he had been abused. He was off work for over a month on a combination of sick leave, unpaid leave and recreation leave. He agreed that if he was treated badly at work he would take time off. In relation to a further medical attendance at the end of May 2004, which the doctor’s notes refer to stress, Mr Sosa said he never got stressed because of the work itself.
  9. On 3 June 2004 there was another interview about not sounding the horn. Mr Sosa regarded this too as an “abuse and misuse of authority”. He thought there was no possibility of running over anyone because they were all wearing fluorescent vests.
  10. On 8 June 2004 he attended an interview about lack of diligence in not carrying out instructions given by the process leader. Mr Dooley supported Mr Virueda, and Mr Sosa said that this was again a “misrepresentation” and an “abuse and misuse of authority”.
  11. Another incident involving the forklift was said to have occurred on 16 June 2004 but Mr Sosa could not recall it. He thought Mr Virueda was concerned only about getting rid of him and not about safety. Neither could he remember that on 4 August 2005 he had been spoken to by Mr Dolaghan about going off on a tea break.
  12. On 21 September 2005 Mr Sosa said Mr Virueda gave him an impossible task in relation to moving ULDs into an area where there was no more room.
  13. On 6 October 2005 Mr Sosa received a warning counselling from his shift leader, Mr Hong, for failure to follow a directive and being absent from the processing floor without authority. Mr Sosa said that this was an “abuse of authority” and that Mr Hong knew Mr Virueda was lying. He also thought that Mr Virueda had falsified his attendance records.
  14. On 11 October 2005 Mr Virueda spoke to Mr Sosa about coming back from a tea break late after being told by his shift leader, Ms Hogarth, to get back to work. He said that he needed to go to the toilet, and as Mr Virueda was on a protracted phone call he could not ask him for permission.
  15. Mr Sosa attended his general practitioner on 16 October 2005, according to the GP’s notes, but could not recall receiving “prolonged counselling” as recorded.
  16. Mr Sosa had a Code of Ethics interview on 13 December 2005 about poor work performance, however he disputed that he had not been pulling his weight, despite complaints by other team members.
  17. Later that month Mr Virueda alleged that Mr Sosa was scattering the work around to look busy and that it created a hazard. Mr Sosa was asked to help another team member, Mr Lopez. When Mr Virueda spoke to Mr Sosa about it, Mr Sosa said to him in Filipino, “You are a ‘thick face’, your attitude is unethical.” Mr Sosa explained the expression “you are a thick face” to mean having no shame. In his evidence to the Tribunal, Mr Sosa did not deny using this expression on two separate occasions. He did not deny that he had said to Mr Virueda in Filipino “You’re full of mouth talk” which actually means ‘too much mouthing’; that is, nagging. Mr Virueda referred that matter to Mr Dooley who gave Mr Sosa a warning counselling, but Mr Sosa said that while that appeared to be a disciplinary action, he was actually the one being abused.
  18. There was an incident in which Mr Sosa complained that he was being asked to move mailbags that were wet because they had been on the toilet floor.
  19. On 6 January 2006 there was another Code of Ethics interview with Mr Virueda, but Mr Sosa could not recall it. Neither could he recall that he saw his GP two days later complaining of stress, and again on 12 January 2006.
  20. On 19 January 2006 Mr Virueda said he had to speak to Mr Sosa about poor work performance (‘bludging’), but Mr Sosa did not really have any recollection of that, but thought Mr Virueda was trying to give ‘a false picture’.
  21. On 25 January 2006 Mr Sosa attended an interview about two matters: firstly, failing to treat his process leader, Mr Virueda, with courtesy and respect, using inappropriate language during that time; and secondly, failing to follow a reasonable directive by refusing to process the empty plastic trays.
  22. On 1 March 2006 Mr Sosa was informed that Mr Galea had conducted a disciplinary inquiry into his failure to treat his process leader with due respect, and the use of inappropriate language towards Mr Virueda. Mr Sosa said it was a ”misrepresentation” and a ”misconduct”, but was not upset by it.
  23. On the recommendation of Mr Sadler, Mr Sosa was transferred to another section under a different supervisor, Mr Ristevski, with whom he worked until March or April 2006. Subsequently he worked for Mr Fortu. He got on well with both of them, with Mr Ristevski providing a letter of support to the later inquiry.

9 MAY 2006 INCIDENT

  1. Mr Sosa said Mr Dooley told him to move to another work area. Mr Sosa did not move and said immediately that he had got a headache and felt that he was going to be sick. He thought Mr Dooley was being abusive in the manner he asked him to move.
  2. He denied saying anything to Mr Dooley at that time, but Mr Dooley ”kept on bothering me and threatening me with ... disciplinary...”. He said Mr Dooley told him he had a mental problem but he ignored that. Mr Sosa said he told Mr Dooley that Virgillio [Mr Virueda] was lying and asked Mr Dooley why he backed him up. He thought they were ganging up on him. He told Mr Dooley he was ”full of shit and I have the documentation to prove it.” He told Mr Dooley he had no right to abuse people. There was some finger pointing by Mr Sosa to which Mr Dooley objected, but Mr Sosa denied he was pointing his finger at Mr Dooley. He said he was trying to defend himself.
  3. Mr Sosa went to see the acting process leader, Ms George and went home. He denied losing his temper.
  4. Mr Sosa said the incident didn’t bother him at all because he was happy and felt safe in the area, and because Mr Dooley was not there all the time. He was unconcerned that there might be some consequence for his job because he had done nothing wrong.
  5. Notwithstanding his continual problems in the job, Mr Sosa loved it: he has, he said, ”a good sense of humour” and that lessened the stress. He did not regard simply following instructions as an alternative way to lessen stress. He kept a thick ‘misrepresentation’ folder of incidents in which he alleged he had been mistreated, so that if he were dismissed he would have material to rebut allegations.
  6. The incident on 9 May 2006 was the subject of an investigation by Mr Tony Stavropoulos. Mr Sosa agreed he had an opportunity to present his side of the case. ‘They’ were always making things up to make trouble but he was unconcerned that Mr Stavropoulos was interviewing witnesses.

EVENTS OF 21 JUNE 2006

  1. Mr Dolaghan and Mr Fortu gave Mr Sosa the disciplinary report and letter on the morning of 21 June, at about 4.20 am, towards the end of his shift. They told him to read it carefully so he would understand it. Mr Sosa told Mr Dolaghan the report was biased but had no further conversation. He was unconcerned about the recommendation for dismissal because he would discuss the matter with Mr Sadler, as the report invited him to do, and he though that after an hour or two of talking to him it would be resolved. According to Mr Sosa, it was another ”manipulation”. In his view, anybody could see it was ”obviously biased and manipulative”.
  2. Mr Sosa said he had previously made a complaint against Mr Dooley in March 2006, and although it had been sent by registered mail it had never been received by Australia Post.
  3. When Mr Sosa returned at 11.30 pm for his next shift, he had the letter out to show Mr Ristevski how Mr Stavropoulos had ”twisted and manipulated the report”. At that moment Mr Dolaghan came in. When Mr Dolaghan saw the letter he said to Mr Sosa “You’re not supposed to be here on the premises.” Mr Sosa told him that he had another two days before he had to speak with Mr Sadler, but Mr Dolaghan told him that ”as of now, you’re terminated.” He said everything went blurry and went into slow motion. He felt they had twisted things around. His ID was taken, he cleaned out his locker and he was escorted from the premises. To get to the car park he had to pass about 15 other employees.
  4. Mr Sosa thought his head was going to explode and that he was going to collapse. He could not remember driving home. His heart also hurt and he felt helpless. He felt the more he complained about abuse the more abuse he would get. He thought Mr Dolaghan was ”mean”.
  5. Mr Sosa said that he was supposed to take his daughter to the doctor the next day but he was unable to do so.
  6. Later that day Mr Sosa received a phone call from personnel to the effect that there had been a misunderstanding, and that he could return to work until Mr Sadler had decided the issue. He regarded this as a cover-up and he felt abused. His head hurt more.
  7. The next day Mr Sosa took his daughter to see Dr Singh, his general practitioner. He took the opportunity to explain his own condition and what had happened, and got a medical certificate so he would not be forced to go back to work. He had received a lot of supporting phone calls that suggested he see a doctor. Mr Sosa then saw Dr Kefaloukos, another GP, and was referred to Mr Ziedni, consutant psychologist, whose treatment he has found helpful.
  8. When Mr Sadler ultimately decided to dismiss him he thought that was ”illegal”, that is ”not actually valid”, and that gave him more “aggravation”. He was upset that Mr Sadler had described the inquiry as ”thorough and fair”.
  9. Mr Sosa said he submitted an incident report but it disappeared and that this ‘tortured’ him.
  10. Mr Sosa also indicated that he had gone over Mr Virueda‘s head to Mr Dooley, but he had ‘participated’, as had ‘Tyrone’, someone ’much higher’, as well as ‘the manager’, presumably Mr Sadler.
  11. At the Board of Reference review, although he was represented, Mr Sosa felt he was not given enough time to express himself. He was offered a new position within Australia Post, but he wanted to stay with the team because he felt there was someone there with anxiety and depression that needed him. He thought he had no choice but to accept the offer which he regarded as ”torture”, there having been ”manipulation of the documents”. He knew he was going to be ”framed”. He thought the chairman, Mr Rourke, was ”mean” to him.
  12. As to his present symptoms, Mr Sosa said that most of the time his legs feel as if they are going to collapse, and it feels like he has the flu all the time, in that he feels weak. He needs to take care crossing the road, especially as twice he has been ”paralysed”. He avoids walking near people who look like bullies. While he told Dr Morse, a consultant psychiatrist, that he cannot go to the shops, he is able to do some minor shopping. He avoids crowds.
  13. During the hearing of this matter, Mr Sosa was shown a video by the Respondent’s counsel in which he was observed to walk across the street, other than at a pedestrian crossing. He passed people in the street. Large Islanders were nearby. This was outside his children’s school, a route he knows well.
  14. Mr Sosa said he spends most of his time in bed because he was unable to handle ”the pain”. He no longer likes former activities such as fishing or camping and he is unable to get himself organised. He feels he is becoming increasingly weak. He takes Aurorix.
  15. Mr Sosa said that when he saw Dr Roldan, a clinical psychologist, he was unable to deal with telling him more about his work difficulties.

MRS SOSA

  1. Mr Sosa’s wife also works for Australia Post.
  2. Mrs Sosa gave oral evidence before the Tribunal that her husband spends most of his day in bed and does little around the home. She agreed that he was having problems at work well before June 2006 she said that some managers and supervisors were giving him a hard time.
  3. Mrs Sosa was aware Mr Sosa had received warning counselling but this was ”nothing”- she herself had had counselling for extended absences due to her own and her children’s illness. She did not believe he would have attempted to strike a supervisor. They had laughed about him being referred for counselling. She did not think what he had done to the Muslim woman was ”harassment” because he had stopped when told to. She said it was common practice at Australia Post to put stickers on someone, as Mr Sosa had done.
  4. Mrs Sosa thought the incident of 9 May 2006 had arisen because Mr Sosa had not been properly trained for the job. She thought her husband was upset by the enquiry because he knew the allegations to be untrue. She said he was, however, unbothered until the night of 21 June 2006. Mrs Sosa said her husband thought Mr Sadler would tell the others to stop bullying him.
  5. Mrs Sosa was aware her husband had previously attended his GP complaining of stress at work and, although he was not happy at work, it was ”not a problem”. She said his absences from work – five months in 2004 and seven months in 2005, were to avoid further arguments with his boss. During those times he was very happy.
  6. Mrs Sosa said that her husband can cope with crowds, depending upon the people. She agreed they had attended the Myer food hall at the luncheon adjournment. They had attended together and the ‘crowd’ was working people.

VIRGILIO VIRUEDA

  1. Mr Virueda provided a statement dated 18 May 2009 and gave evidence before the Tribunal
  2. Mr Virueda said he did not know of Mr Sosa until he suddenly came to work for him in 2003. He was given no briefing about him.
  3. In his evidence Mr Virueda denied that he had had ganged-up on any member of his team. It is an Australia Post rule to treat all people fairly. He did not think Mr Sosa was rational, and he thought everyone in the team hated him.
  4. He thought it coincidental that Mr Sosa had problems while working for him, but none while working with Mr Ristevski or Mr Fortu.
  5. In relation to the complaint by Mr Ngygen on 14 August 2003 that Mr Sosa was not pulling his weight, he said that Mr Sosa was taking an hour to do a task that others would do in 20 minutes.
  6. Mr Virueda confirmed that there was an obligation to sound the forklift horn on approaching a blind corner. It is a simple safety precaution that everyone else managed to comply with. He denied that he abused his authority. He thought there were multiple signs around the facility saying ”blow your horn”. He agreed in cross-examination that people using a forklift are expected to use commonsense, and if there is a danger they are to blow the horn. Mr Virueda did not see Mr Sosa drive too close to Mr Madridano but had accepted what Mr Madridano told him. The proper procedure was to bring in the supervisor, Mr Dolaghan, which he did.
  7. As to moving the bags, Mr Virueda said they were clean and, to the best of his knowledge, there was no health risk associated with the bags.
  8. As to the sweeping incident of 28 April 2004, Mr Virueda said that all members of the team sweep together. He thought Mr Sosa shouted at him in Filipino words to the effect: ‘what do you really want’ which, in Filipino amounts to an invitation to a fight.
  9. On an occasion when Mr Sosa was five minutes late because he, Mr Sosa, said he had been talking with the senior manager, Mr Dinneen. Mr Dinneen told Mr Virueda that it was appropriate to conduct a Code of Ethics discussion because employees were not to use that excuse for being late.
  10. Mr Virueda was of the impression that when he spoke to Mr Sosa about, for example, Code of Ethics, two to three times he went off sick the next day.
  11. He understood Mr Sosa to even have shouted at Mr Watt, the chief production manager.
  12. He confirmed that ”thick face” and ”full of mouth talk” are insults in Filipino.

LUISITO PAULAR

  1. Mr Paular provided a statement dated 13 May 2006 which was prepared by Mr Sosa. His statement of 25 June 2006 to the inquiry was drafted by the union representative. Mr Paular also provided a further statement dated 9 July 2009.
  2. Mr Paular wrote that he saw Mr Dooley, ”shouting and pointing his finger in an abusive manner” at Mr Sosa, who did not respond. He said that Mr Dooley had said, words to the effect: ”Come on, guys. Clear out the bullring” at a “shocking” volume and pointing his finger. He thought Mr Dooley should have approached them in a “gentle manner”.

CARLOS VICENTI

  1. Mr Vicenti wrote a statement on 23 June 2006 and gave evidence before the Tribunal.
  2. Mr Vicenti said he had been asked by Mr Sosa to make the statement because he was ”the only one there” whereas, in fact, Messrs Ristevski, Dolaghan and Fortu were there but ”they are supervisors, and they speak against some of us”.
  3. In the statement Mr Vicenti set out the exact words that were used in the conversation between Mr Dolaghan and Mr Sosa: “You don’t understand, mate. As of now, you are terminated.”
  4. Mr Vicenti was aware from his experience that one of the requirements of the forklift driver is to sound his horn when he is coming around corners, or when moving in close proximity to people to warn them.
  5. Mr Vicenti said that the only sign about blowing the horn was over the large blue door “so that somebody on the other door can hear that somebody is entering the blue door and it will open”.

BRIAN DOOLEY

  1. Mr Dooley provided a statement of 19 May 2009 and also gave evidence before the Tribunal.
  2. Mr Dooley said that on the occasions Mr Virueda came to him and reported unsatisfactory behaviour by Mr Sosa, and occasions when he gave warning counselling to Mr Sosa, he knew that Mr Sosa was saying that Mr Virueda was picking on him. As to any suggestion that he had in some manner colluded with Mr Virueda to harass Mr Sosa, he said he had enough responsibilities at work without any need to engage in any sort of personal vendettas. In any event, such behaviour was not in his personal makeup. It was suggested to Mr Dooley during cross examination that he took Mr Virueda’s side on every occasion, but he denied this.
  3. Mr Dooley stressed the importance of sounding forklift horns, especially where there is cross-traffic, and it is promoted as part of Australia Post safety procedures. He indicated that the proper approach is that a properly trained forklift driver is required to use some commonsense, and that is why Australia Post promotes the sounding of horns going around corners or intersections.
  4. Mr Sosa told him that he did not believe he was unsafe, but he offered no explanation as to why he failed to sound the horn. All he said was he didn’t believe it was a safety issue. He believed it was an issue which Mr Virueda was using to harass him. He kept repeating that Mr Virueda was picking on him. He didn’t proffer any explanation of why he didn’t believe it was unsafe.
  5. Mr Virueda’s instruction to use the horn was what he would have expected of any supervisor. Mr Dooley considered Mr Virueda to be very strict on safety issues. He thought he was a strict supervisor but certainly not vindictive. He had received no other complaints about Mr Virueda.
  6. As to the events of 9 May 2006, Mr Dooley said that there was no mail to be processed on dispatch lane 17, where Mr Sosa was erecting or folding ULDs, but there was a backlog in 18 and 19. He asked Mr Sosa to cease doing that and come over to help where the mail was. He agreed he had a fairly loud natural speaking voice but denied he was abusive or aggressive in his manner of making the request.
  7. Mr Sosa left the area and when Mr Dooley followed him, he, Mr Sosa, started swearing at him saying, “You’re full of shit. I have the documentation to prove it.” Mr Sosa also made accusations about Mr Virueda. He was very agitated, talking loudly and pointing his finger at him in a stabbing motion, gesticulating quite wildly, and going on in a manner that caused Mr Dooley great concern. He found it disturbing.
  8. Mr Sosa then signed a leave form to go home. Mr Dooley said he stayed in the vicinity because he was concerned about Mr Sosa. Mr Sosa turned back to him and started going on again saying words to the effect, “You backed up Virgilio [Mr Virueda]. You’re both liars, you’re both full of shit,” and shaking his finger at him again. Mr Dooley said he was on the verge of implementing the Australian Post policy for violence in the workplace for threatening and intimidating behaviour, by which he meant asking Mr Sosa to leave the premises, and an inquiry would follow.
  9. Mr Dooley thought Mr Sosa had a personality problem.

KEVIN FRANKLIN

  1. Mr Franklin provided a statement of 11 May 2009 and also gave evidence before the Tribunal.
  2. Mr Franklin was at work on the occasion of 9 May 2006. He was loading mail onto a truck and heard shouting, and he and others went to investigate. He saw Mr Sosa yelling and swearing at Mr Dooley. He had observed such an incident only two or three times in his eight years there, neither of which had involved Mr Dooley or Mr Sosa.
  3. He agreed that his observation right from the start was that Mr Sosa was not too friendly, that he was abrupt, and he appeared to be “fairly full of himself”. He denied that his personal assessment of Mr Sosa had influenced his account of this event at all.

ROBERT SADLER

  1. Mr Sadler provided a statement of 30 April 2009 and also gave evidence before the Tribunal.
  2. Mr Sadler was present at the Board of Reference, which was chaired by Watne Barney, where Mr Sosa was represented by a union representative. His recollection is that submissions predominantly focused on previous alleged incidents involving Mr Virueda and Mr Dooley, and not necessarily the events that led to the inquiry.
  3. Mr Sadler was aware that following his inquiry, Mr Stavropoulos had recommended dismissal, and that Mr Sosa was given a period of time in which he could make representations to Mr Sadler. A meeting with Mr Sosa occurred on 26 June 2006. He told Mr Sosa that they were not there to discuss the merits of the inquiry, but the recommendation for dismissal, and that if he considers the penalty too harsh, this was Mr Sosa’s opportunity to put forward a case for him to further consider. Mr Sosa’s comments were based around Mr Virueda and Mr Dooley and their campaign to get rid of him, and he said nothing about his behaviour that led to the inquiry. Mr Sadler said he tried to get back on the topic about the penalty and whether it was too harsh, but the conversation from Mr Sosa was only about Mr Virueda and Mr Dooley being out to get him. He said at some stage that Mr Barney was mean to him.
  4. Mr Sadler had no recollection of Mr Sosa making any complaint to him during that meeting about the events of 21 June 2006 when he was escorted from the premises.

PAUL DOLAGHAN

  1. Mr Dolaghan provided a statement of 18 May 2009 and also gave evidence before the Tribunal.
  2. As to the forklift incident of 18 August 2003 Mr Dolaghan said Mr Virueda called him because another staff member had made a complaint that Mr Sosa had driven his forklift too close to him, and that he should have beeped his horn and let him know he was there. Mr Dolaghan was asked to make a ruling on what should happen. He spoke to the complainant who was worried about how close Mr Sosa was coming with the forklift. Mr Sosa told him there was no need to blow the horn. He agreed that Mr Sosa probably saw the complainant. He said that even if the forklift driver formed the view that the person could see him and had indicated, that the driver should still err on the side of caution and beep the horn. He did not agree that if you know that the person has seen you, then the obligation to beep the horn becomes much more discretionary, because the person does not know what your intentions are on the forklift.
  3. In his oral evidence, Mr Dologhan said that Australia Post has a policy in relation to forklift operators and the use of horns. The only mandatory requirement is to stop and beep if coming around a blind corner. As a matter of commonsense, if you’re going close to someone and they don’t look at you, let them know you are there, beep or call out to them, so they don’t get frightened or move straight in front of the path of the forklift. Compliance is of utmost importance from an OH&S viewpoint because it has the potential to cause a death. Mr Dologhan did not accept any suggestion that there is no need to blow the horns of the forklift to warn people of the presence of the forklift because they could always hear the engine of the forklift; the onus is on the forklift driver and they are responsible for safety. They have an obligation to make sure that anyone else around them knows that they are there and knows what they’re doing.
  4. As to any suggestion that Mr Virueda was unnecessarily imposing upon Mr Sosa rules about beeping the horns that didn’t apply to other forklift operators, he said that all process leaders have the same rules: if you are going near anyone and they may not have noticed you, safety comes first, beep the horn, to let them know.
  5. At some stage Mr Dolaghan was asked to speak to Mr Sosa in relation to an unexplained 40 minute absence. He said Mr Sosa hadn’t come back from his tea break on time, and that Mr Virueda wanted him to speak to Mr Sosa and to let him know what the regulations are and why he needed to notify his process leader if he was going to be absent from his work other than for normal breaks, as the process leader is responsible for their staff at all times. In addition, it is part of Australia Post’s Code of Ethics: everyone is given a booklet and about their responsibilities to be punctual and to notify people of their absences.
  6. Mr Dologhan recalled an occasion in early August 2005 when Mr Virueda asked him to speak to Mr Sosa over not coming back from his break on time. Mr Sosa told him he had been to his car and he had with him a thick manila folder which he said he wanted him to read because he said Mr Virueda had been picking on him. Mr Dolaghan said he declined to read it, because they were just dealing with him not coming back from his break on time.
  7. Mr Dologhan had not observed Mr Virueda picking on Mr Sosa, nor did he have any other complaints from staff about Mr Virueda picking on them. He even approached some of the staff discreetly, just to find out if there was any history of personality conflict between Mr Virueda and other people that were working under him.
  8. Mr Dologhan also indicated that at some stage Mr Sosa made a comment in passing that people were ‘plotting to do something evil’ to him.
  9. In relation to the events of 21 June 2006, he said he had been asked to give Mr Sosa a letter, get him to read it, make sure he understood it. He was also to and get Mr Sosa’s ID card and his locker keys, and have him clean out his locker before he went home. The decision was made to do this towards the end of Mr Sosa’s shift, at about 4.20 am, so he would be able to get out of the building without having to tell any of the people he worked with what was going on; it was to give him the chance to walk out with dignity so he didn’t look like he was being escorted out. Mr Dologhan said he got Mr Sosa’s supervisor, Mr Fortu, to come with him, because Mr Fortu is also Filipino and if there was a communication problem he would be able to assist. They gave Mr Sosa the letter and asked him to read it. Mr Sosa read it for a few minutes and then they asked him whether or not he understood it, and he asked Mr Dolaghan to have a look at it. He saw that the recommendation from the enquiry was that Mr Sosa’s services were to be terminated. They explained to Mr Sosa that his services were terminated with Australia Post, and that they had to get his ID card and he was to clear out his locker. They walked downstairs with Mr Sosa, while he cleared out his locker, took his ID card and his keys, and organised with the security guard to open up the boom gates so Mr Sosa could leave.
  10. That night Mr Sosa had come to work for the commencement of his next shift and was in a breakout room. Mr Dologhan went with Mr Yong and they told Mr Sosa his services were terminated, he wasn’t supposed to be there. Mr Sosa said that he had a couple more days to see the manager, Gary Sadler. Mr Sosa was told, “... You’ve got a couple of days to make an appointment to see him, but you are not allowed to be at work; your services have been terminated,” and then we escorted him out of the building. Mr Dolaghan understood Mr Sosa was suspended pending the decision.
  11. Mr Dologhan said he bore no antipathy or anger towards Mr Sosa at all.

MEDICAL EVIDENCE

MR ZIEDNI, REGISTERED PSYCHOLOGIST.

  1. In his first report dated 11 November 2006, Mr Ziedni diagnosed an adjustment disorder with mixed anxiety and depressed mood. In his second report, dated 7 October 2007, the diagnosis was adjustment disorder with mixed anxiety and depressed mood.
  2. Mr Ziedni reported that Mr Sosa had been referred by Dr Kefaloukos for psychological evaluation and management in relation to workplace incidents that occurred on 21 June 2006, leading to Mr Sosa experiencing an ”ongoing battle with his employer”. He took a detailed history of the events of 21 June 2006. Mr Sosa reported that prior to that time he had ”no significant anxious, depressive or maladaptive interpersonal communication or serious medical condition”.
  3. Mr Ziedni appraised Mr Sosa against a number of psychological assessment scales evaluating depression, anxiety and stress. He considered Mr Sosa to have rated in every test as either severe or very severe. On a symptom ‘checklist’ Mr Sosa rated as ”very high”. Mr Ziedni concluded that it appeared that Mr Sosa’s responses to the last incident at work were characterised by strong emotions, such as feeling frustrated, anxiety and acute depression, whilst his primary coping strategy is avoidance and phobic anxiety about working in the same company.
  4. In his oral evidence Mr Ziedni described Mr Sosa as being "very shaky" when first seen as the result of an urgent referral by Dr Kefaloukos, and finding it very hard to concentrate, as he was ”very shocked”. Since that first visit in July 2006, Mr Ziedni had seen Mr Sosa more than 20 times for at least 30 minutes on each occasion. However, he did not think there had been any significant change in Mr Sosa’s condition over the entire period up to his most recent appointment in July 2009. Given his diagnosis and the fact that his prolonged treatment had failed to provoke any improvement in Mr Sosa’s condition, Mr Ziedni was prepared to concede that perhaps his diagnosis was not correct.
  5. He agreed that he had accepted at face value what Mr Sosa had told him as to the history of the event, and that before June 2006 he had had a normal psychological disposition.

DR MORSE, CONSULTANT PSYCHOLOGIST

  1. Dr Morse first examined Mr Sosa on 20 February 2008. The history he took from Mr Sosa, as set out in his first report dated 10 March 2008, was that there were “no problems” until sometime during 2005, a change which had apparently precipitated his transfer within Australia Post to the Sydney West Letter Facility at Strathfield. Mr Sosa told him that, while quite happy at that location, he became increasingly anxious and depressed through 2006, culminating in a very disturbed state from the time of his dismissal in June 2006 for “conflictual difficulties”. He provided Dr Morse with a detailed written statement about the events of 21 June 2006.
  2. During the interview Dr Morse noted that Mr Sosa was ”very tense and slightly agitated", although Dr Morse thought he did not "particularly present as depressed". Dr Morse concluded that Mr Sosa was not suffering from major depression at the time of the consultation, but he made instead the diagnosis of adjustment disorder with severe anxiety and depression. He also considered Mr Sosa to be agoraphobic. He did not think there was anything in Mr Sosa’s developmental history of personality function to suggest he was vulnerable to suffer emotional distress in the absence of his experience at Australia Post. He also considered that Mr Sosa needed further treatment and that his prognosis was uncertain. Dr Morse thought that there would not be much change in Mr Sosa's condition in the next two to three years even with treatment, and he considered that there was a 20 per cent whole person impairment present when assessed under Table 5.1 of the Guide to the Assesment of the Degree of Permanent Impairment.
  3. In his oral evidence Dr Morse said that Mr Sosa had been distressed at the ”mourning effect” which arose when ordered off the premises unfairly and without previous due process. He was even more shocked when he returned for the next shift and was told he had been dismissed. That distress had continued up until Dr Morse saw him.
  4. Dr Morse relied on the veracity of the history given by Mr Sosa that he had been ”branded” by Australia Post and felt injustice, and that what had been happening to him ‘for some years’ culminated on 21 June 2006. According to Mr Sosa he had been harassed by his supervisor for some time. Dr Morse also accepted the history given by Mr Sosa as to his symptoms and emotional state.
  5. He said in his evidence that Mr Sosa told him that he does not go to shops and avoids crowds ,public places, and people generally. When he tries to leave home, he gets gastric upsets with diarrhoea, a rapid heartbeat and a feeling of dread; he has to return home. These were matters which had some relevance in terms of his ultimate diagnosis.
  6. Dr Morse was critical of Dr Roldan’s report as insufficiently detailed as to Mr Sosa’s emotional state, and not addressing the emotional significance of Mr Sosa’s physical condition, such as his panic attacks and palpitations. He was similarly critical of Dr Champion. Both had suggested Mr Sosa had personality dysfunction, and Dr Morse considered such a condition requires a “full term outline of dysfunction in various areas of personal life extending over many years”, and that it was a “very pejorative diagnosis”.
  7. As to the history given by Mr Sosa to the effect that there had been no problems in the workplace prior to 2005, Dr Morse had been unaware that there was disciplinary action against him in 2000 which had resulted in him being transferred; that he was undergoing warning counselling and anger management after allegedly attempting to strike a supervisor and had had to be restrained by other staff members; also in 2000, that Mr Sosa had allegedly harassed a female staff member and had undergone warning counselling; that in 2003 Mr Sosa alleged another worker had made an unfair complaint about him; that Mr Sosa was also spoken to about driving a forklift too close to a fellow worker; that he was counselled for tardiness in 2004; that in March and June 2004 he was again spoken to about his forklift driving; that in May 2004 he refused to sweep the area as requested by his supervisor; and finally, that in June 2004 a fellow worker had lodged a complaint.
  8. He said he would regard those events as part of the same history as that given by Mr Sosa. Mr Sosa had told him there were problems with his supervisor, which Mr Sosa believed were unfair, and he, Dr Morse, had no way of judging that, and it was not his function to do so. He considered there was material that suggested Mr Sosa had been unfairly treated.

DR DE SAXE, CONSULTANT PSYCHIATRIST

  1. Dr de Saxe examined Mr Sosa on 6 June 2009 and produced a report dated 10 July 2009. The report was admitted only as to whether Mr Sosa continues to suffer a psychiatric condition, and not on the question of causation. The description of symptoms reported to Dr de Saxe in June 2009 was broadly consistent with the oral evidence given by Mr Sosa. The mental state examination disclosed a person who appeared tense and apprehensive, with a generally flat affect, but with agitation and anger appearing at times. Dr de Saxe did not think there was any formal thought disorder as might be found in schizophrenia, or any perceptual abnormalities such as hallucinations, as one might find in a psychotic illness.
  2. Dr de Saxe recorded that Mr Sosa told him that he has become avoidant of crowds, even people who look friendly, finding himself to be apprehensive of them.

DR PALUGOD, PHYSICIAN IN INTERNAL MEDICINE

  1. While Mr Sosa was in the Philippines between December 2006 and March 2007, he consulted Dr Palugod. In a Certification of Medical Attendance dated 20 February 2007, Dr Palugod diagnosed the presence of an "adjustment disorder, bipolar mood, predominantly depression", and recommended continuation of antidepressant medication.

DR CHAMPION, FORENSIC PSYCHIATRIST

  1. Dr Champion examined Mr Sosa on 19 July 2007 and provided a report dated 26 July 2007. A supplementary medical report was also prepared on 14 July 2008
  2. In the first report Dr Champion recorded that Mr Sosa had provided him with a prepared statement about the events surrounding 21 June 2006. In giving the history, Mr Sosa appeared to Dr Champion to be co-operative. Dr Champion observed that when focused on work-related issues, Mr Sosa appeared angry but without any indication of emotional distress. He wrote that Mr Sosa claims to suffer a range of symptoms which are broadly consistent with anxiety/depression but, on examination, he did not appear anxious or depressed but seemed intent on convincing Dr Champion that he had been the innocent victim of what he repeatedly referred to as ‘abuses of power’. Dr Champion wrote that Mr Sosa told him that, other than Aspirin for headaches, he takes no medication for his condition.
  3. In his report dated 26 July 2007 Dr Champion commented that:

“In an individual of normal psychological resilience, some emotional upset following the events described by Mr Sosa may be expected. Emotional distress in the form of feelings of anxiety and depression which would be transient and considered as a normal and common response. Adjustment Disorder would differ from a normal emotional reaction on the basis of severity and duration of the distress. The distinction between the two is a matter of clinical judgement and depends upon the severity of the symptoms and on the nature of the stressor. Given the nature of the claimed stressor in this case one would normally consider the provision of one weeks leave to get over the emotional upset of the incident described would be generous and sufficient, if not excessive.”

  1. Dr Champion considered the emotional upset experienced by Mr Sosa at the time he was told that his services had been terminated was likely to have been a normal emotional response, including elements of anger, depression and humiliation. In his opinion Mr Sosa’s claim of being unfit for his normal duties is a result of ongoing anger and bitterness based upon feelings of unjust treatment, but that this did not equate to a psychiatric disorder and is best described as Passive Aggressive Behaviour. Anger, in his view, is often expressed in indirect fashion and the most common form of Passive Aggressive Behaviour is a claim of injury in order to pursue what is perceived to be ‘justice’. He suggested that any emotional upset experienced by Mr Sosa " would be expected to resolve in a matter of hours or days" and any continuing absence from the workplace is due to "continuing attitudes and motivation".
  2. In respect of whether Mr Sosa suffered from a reaction in excess of a normal person’s response, Dr Champion opined in his report of 14 July 2008 that “Mr Sosa sustained a reaction which would be properly characterised as not in excess of a normal person’s response in such a situation and certainly not beyond the realms of normal human behaviour”. In his evidence Dr Champion explained that anger is normal human response.
  3. Dr Champion opined that Mr Sosa was suffering from “no current psychiatric diagnosis” and regarded Mr Sosa as, “fit for his employment without restrictions”.
  4. In his oral evidence Dr Champion said that individuals who suffer with serious anxiety or depressive symptoms get little relief from those symptoms and that symptoms such as depressed or anxious affect are usually notable even in an early stage of examination. This did not occur when he examined Mr Sosa who ”presented in a logical fashion and it did not seem to be an indication of emotional distress or of symptoms of anxiety or depression, or the signs of anxiety or depression that you would expect to see in an individual who was suffering from that disorder”. He had observed Mr Sosa as being able to laugh and smile in a conversational manner.
  5. Dr Champion was familiar with the tests administered by Dr Roldan. His observation was that Mr Sosa presented with no cognitive impairment, noting that informal cognitive function testing is part of all his examinations. The alternatives were that Mr Sosa had suddenly developed very significant dementia or he was affected by ‘suggestion and motivation’.
  6. He opined that Mr Sosa’s presence at the Myer foodhall during the luncheon adjournment of the hearing was “totally out of character for anyone suffering with a genuine agoraphobia”, a condition which had been diagnosed by Dr Morse. Agoraphobia, he said, is such that there is no ability in the sufferer to have “selective powers to switch his agoraphobia on and off in different circumstances”. He said in cross-examination that agoraphobia is not a stress-caused disorder, but a well-recognised constitutional disorder.
  7. Similarly, he opined that “anyone with a genuine fear of crossing a road would tend to use traffic lights or other facilities”.
  8. In his oral evidence he was referred to the workplace issues experienced by Mr Sosa in the years before June 2006. Dr Champion considered that a long history of difficulties with both management and other employees suggests that Mr Sosa had difficulty relating in an acceptable fashion over a long period of time. He considered the events of 21 June 2006 to be “part and parcel” of the whole history, although the outcome for Mr Sosa might have been more significant because he was threatened with dismissal. In cross-examination Dr Champion conceded that Mr Sosa may have developed some anxiety and depression in relation to the events of 21 June 2006, but on the basis of his prior history of good functioning, one would expect his feelings to be transient "and not persist for years and years and years".
  9. In his report of 14 July 2008 Dr Champion was critical of the report of Mr Ziedni, commenting that ”the constant nature of the high scoring over a wide range of areas of psychological functioning is in itself an indication that the individual under assessment is likely to be producing information which at least exaggerates the severity of any current problems”. Further, Mr Ziedni did not appear to have considered that this was possibly indicative of what is referred to as ”faking bad”. He did not accept that Mr Ziedni’s view should be preferred to his own because Mr Ziedni’s had had many opportunities to observe Mr Sosa. Extensive exposure through treatment does not necessarily put someone in a better position than someone who has made a cross-sectional assessment, without a treating relationship: the treater’s objectivity may suffer.
  10. Dr Champion did not interview Mr Sosa’s wife, and was not given much by way of detail about how Mr Sosa's life was conducted between June 2006 and July 2007, when the examination took place; Mr Sosa told him that he had a normal happy life before June 2006 and that since that time he does little, spending his day in bed or watching television. Dr Champion saw no reason to make any concessions that his opinion might have been different if he had obtained a more detailed history of problems in Mr Sosa's life over that period.

DR ROLDAN, CLINICAL PSYCHOLOGIST

  1. Dr Roldan conducted a four-hour long examination of Mr Sosa on 5 February 2009 and produced a lengthy report dated 5 February 2009. He referred extensively to objective neuropsychological testing of Mr Sosa upon which he elaborated in his evidence: He found that the testing produced anomalous results inconsistent with the history and presentation of Mr Sosa. He provided four examples:
  1. In cross-examination about the testing and the results, Dr Roldan’s evidence was that Mr Sosa was scoring at levels that defied any credibility at all. In fact, he described the results as being ’as bad as it gets in terms of malingering’.

CONSIDERATION

DOES MR SOSA SUFFER FROM A PSYCHIATRIC/PSYCHOLOGICAL INJURY?

  1. For the purposes of this matter, “injury” is defined in section 5A 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.
  1. “Disease” is defined in section 5B of the Act as:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

  1. In Comcare v Mooi (1996) 69 FCR 439 Drummond J said the use of the word “ailment” signals a legislative intention “to cover the whole range of physical and mental illnesses from major to minor ones” (at 443). His Honour said a claim should not be rejected simply because the employee’s condition cannot be identified as a recognised medical condition. However, his Honour added (at 444) it was:

“... essential for ... a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behavior”.(Tribunal emphasis)

  1. Mr Sosa described the effect that the events of 21 June 2006 had on him. When Mr Dolaghan told him he was terminated, he said things "just get blurry and everything went slow motion": Then he began to experience a severe headache and he felt like he was going to collapse, and a pain that felt like it was piercing his heart: That night he did not sleep, and the next morning he said he could not even move. After he received a phone call later that day telling him it was a misunderstanding, his head hurt even more.
  2. The next day he went to see a GP, in the first instance, because his daughter was not well, but then explained his own condition and what had happened, and obtained a medical certificate so he would not be forced to go back. The following day he saw another GP, Dr Kefaloukos, who referred him to Mr Ziedni, psychologist, whom he has seen about 20 times, although without apparent improvement.
  3. He spends most of the time in bed, which his wife confirmed. He no longer does activities he did beforehand, such as fishing and camping. He described his condition as "like having a flu, but you don't have a flu". He undertakes little around the house. He said he continued to take antidepressant medication; he was nervous and could not sleep.
  4. He said that in the period since the Board of Reference hearing in October 2006, he had been subject to "more torture" dealing with the compensation process.
  5. The evidence of Mr and Mrs Sosa was of him having difficulties with people, and feeling unsafe depending upon the crowd and who he was with. He described the situation where he may see some people ahead who "look like a bully". I accept that people, including Mr Sosa, commonly draw conclusions (rightly or wrongly) about their level of safety purely from the outward appearance of people around them.
  6. On the basis of the evidence of Mr and Mrs Sosa, I would not have been prepared to draw any conclusion adverse to Mr Sosa about his ability to eat lunch with his wife in a food hall, had it not been for Dr Morse’s diagnosis of agoraphobia. Dr Champion opined that Mr Sosa’s presence there was “totally out of character for anyone suffering with a genuine agoraphobia”, a condition which, he said, is such that there is no ability in the sufferer to have “selective powers to switch his agoraphobia on and off in different circumstances”. In any event, agoraphobia is not a stress-caused disorder, but a well-recognised constitutional disorder. I also note that Mr Sosa’s evidence is at odds with his apparently having told Dr de Saxe that he has become avoidant of crowds, even people who look friendly.
  7. Little weight can be attached to the report of Dr Palugod. There was no evidence that Dr Palugod also holds qualifications in psychiatry or psychology, and his report is scant as to the history he was given.
  8. The conclusion reached by Dr de Saxe was that Mr Sosa was suffering from "major depression, chronic". I do not accept that the diagnosis made by Dr de Saxe is, as was suggested in argument by the Respondent, a completely different one to those made by Mr Ziedni and Dr Morse. Mr Ziedni diagnosed ‘adjustment disorder with mixed anxiety and depressed mood’, and later, ‘adjustment disorder with depressed mood and anxiety’. Dr Morse diagnosed “adjustment disorder with anxiety and depression, panic disorder and agoraphobia”.
  9. However, Mr Ziedni was prepared to concede that his diagnosis might not be correct, as his prolonged treatment had failed to result in any improvement in Mr Sosa’s condition. I note Dr Champion’s criticism of Mr Ziedni that the results of Mr Ziedni’s testing should have suggested that Mr Sosa was exaggerating the severity of his problems and Mr Ziedni did not appear to have considered this. Dr Champion suggested, in effect, that Mr Ziedni’s objectivity may have suffered.
  10. Dr de Saxe said that he concurred with the earlier diagnoses of adjustment disorder with anxious or depressed mood, but was of the view that "as time has progressed without a resolution to this problem, his disorder has intensified, and become a chronic major depressive illness". To the extent that the diagnoses may differ, little turns on that issue, having regard to Mooi.
  11. More problematic is the basis on which those diagnoses were reached. Mr Ziedni agreed that he had accepted at face value what Mr Sosa had told him as to the history of the event. More importantly, in my view, he proceeded on the basis that before June 2006 Mr Sosa had had a normal psychological disposition, and was apparently unaware that Mr Sosa had – rightly or wrongly - previous workplace issues or that Mr Sosa had on several occasions, since at least April 2004, had consulted his GP about stress at work. Similarly, Dr Morse was completely unaware of these events. It is a serious comment on the Applicant’s credit that he was not completely forthcoming to those examining him.
  12. Dr Morse said that Mr Sosa had been distressed at being ordered off the premises, ‘unfairly and without previous due process’. This is in spite of there having been a Board of Reference at which Mr Sosa was represented and given an opportunity to put his position.
  13. Dr Roldan and Dr Champion found Mr Sosa to not be genuinely suffering a condition that is outside the boundaries of normal mental functioning and behavior, and were effectively satisfied that his contentions to the contrary were not genuine.
  14. It was also submitted on behalf of Mr Sosa that, in effect, less weight should be given to the views of Dr Roldan because he is a psychologist rather than a psychiatrist, and would accordingly have arrived at his views on the basis of test results as opposed to clinical judgment. I accept that psychiatry is concerned with treating psychiatric disorders, as opposed to assessing cognitive functioning, and does not necessarily involve the routine administration of the tests such as those relied upon by Dr Roldan. I agree that the use of tests assessing cognitive function to make psychiatric diagnoses should be treated with some caution. Dr Roldan’s evidence, in my view however, was impressive. He is extremely well qualified as a psychologist; Dr Roldan holds a Bachelor of Arts with Honours in Psychology, a Masters in clinical psychology and a PhD in clinical psychology.
  15. . He had undertaken extensive psychological evaluation of Mr Sosa by objective testing. He was steadfast in his evidence that Mr Sosa was scoring at levels that defied any credibility at all. Critically, the results were described ’as bad as it gets in terms of malingering’.
  16. I reject the submission that Dr Roldan’s clinical assessment was very sparse and that the history he took from Mr Sosa was inadequate. Even if a more detailed history had been forthcoming from Mr Sosa, the objective results would remain.
  17. It was submitted on Mr Sosa’s behalf that even Dr Champion did not enthusiastically embrace the formal testing done by Dr Roldan as a measure of psychiatric impairment, as opposed to cognitive impairment. I do not agree. Dr Champion was familiar with the tests administered by Dr Roldan. His observation of Mr Sosa was that there was no cognitive impairment, noting that informal cognitive function testing is part of all his examinations. The alternatives were that Mr Sosa had suddenly developed very significant dementia or he was affected by ‘suggestion and motivation’, a polite turn of phrase, I understood, to mean he was feigning his responses to the testing.
  18. Dr Champion was of the opinion that Mr Sosa was suffering from “no current psychiatric diagnosis”. While he appeared angry when focussed on work-related issues, examination of Mr Sosa did not demonstrate the claimed symptoms of anxiety or depression. Dr Champion also recorded that Mr Sosa had told him that the only regular medication he took was Aspirin for headaches, although Mr Sosa’s evidence given elsewhere suggested that he takes Aurorix.
  19. Importantly, Dr Champion considered Mr Sosa’s reaction at the time he was told that his services had been terminated was likely to have been a normal emotional response: elements of anger, depression and humiliation. That was broadly consistent with Mr Sosa’s evidence as to his response, in my view. On the basis of Mr Sosa’s prior history of good functioning, Dr Champion would have expected his feelings to be transient "and not persist for years and years and years".
  20. In Dr Champion’s opinion Mr Sosa’s claim of being unfit for his normal duties is a result of ongoing anger and bitterness based upon feelings of unjust treatment. Any continuing absence from the workplace is due to "continuing attitudes and motivation" which, again, is a polite turn of phrase, I understood, to mean he thought that Mr Sosa was malingering.
  21. Dr Champion’s opinion was supported, in my view, by his observation that Mr Sosa did not appear anxious or depressed at examination – in fact, laughing and smiling – whereas individuals who suffer with serious anxiety or depressive symptoms get little relief from those symptoms, so he would have expected to see that on examination.
  22. Dr Champion considered that Mr Sosa’s long history of difficulties, with both management and other employees, suggests that he had difficulty relating in an acceptable fashion over a long period of time. He considered the events of 21 June 2006 to be ‘part and parcel’ of the whole history.
  23. Dr Champion was criticized on behalf of the Applicant for not interviewing Mrs Sosa, and was not given much by way of detail about how Mr Sosa's life was conducted between June 2006 and July 2007, when the examination took place. It is important to note that Mr Sosa had told Dr Champion that he had a normal happy life before June 2006. Clearly this was not entirely accurate, as he was regularly in strife at work – rightly or wrongly. He said he was not troubled by this but had visited his GP on several occasions claiming stress at work. I accept that there was no good reason for Dr Champion to make any concessions that his opinion might have been different if he had obtained a more detailed history of problems in Mr Sosa's life over that period, beyond the history which Mr Sosa provided to him.
  24. There were other features of Mr Sosa’s evidence that caused concern, and reinforced, in my view, the observations of Dr Champion and Dr Roldan as to the likelihood that Mr Sosa is exaggerating his condition.
  25. In that regard, I accept that the evidence in relation to the alleged workplace problems prior to the events of May and June 2006 is scant. It remains, though, that Mr Sosa had, for whatever reason, adversely come to attention in the workplace on a number of occasions beforehand. It is difficult to see how someone who professed to love his job could be unaffected by coming to notice so often, and having to undergo counselling, Code of Ethics and a Board of Reference hearing.
  26. I also find it difficult to accept his claim that he was unaffected by the adverse finding by Mr Stavropoulos, when clearly his job was at that stage already in jeopardy. Similarly, I find his belief that Mr Sadler would see things his way was naïve, given that none of his previous run-ins had apparently been resolved in his favour.
  27. Much was made on the Applicant’s behalf of the reasonableness of instructions given to Mr Sosa, especially those of Mr Virueda in relation to sounding the horn of the forklift and those of Mr Dooley in relation to his calling Mr Sosa to another work area. I do not need to come to a final view about those incidents, but I observe that, ultimately, there was no real dispute by Mr Sosa that he disobeyed instructions because he thought he knew best. Importantly too, he readily admitted that he swore at supervisors on at least two occasions. This occurred in advance of the events of 21 June 2006 which he claims give rise to his condition.
  28. Mr Sosa continually claimed that he was a victim of some form of vendetta, about which he adopted something of a mantra: ‘abuse and misuse of authority’. Mr Virueda featured in it, but Mr Sosa also sought to include most of those managers, supervisors and other employees with whom he had had disputes. It was submitted on his behalf that managerial victimisation of employees ‘regularly’ occurs in the Commonwealth employment, which is almost always denied. I did not have credible evidence before me that would lead me to the view that there was anything in the nature of a conspiracy or vendetta in respect of Mr Sosa.
  29. The management of Mr Sosa on 21 June 2006 was less than ideal and, I accept, was likely to have caused him temporary upset. However, I find that Mr Sosa does not suffer from a condition which is outside the boundaries of normal mental functioning and behaviour and therefore he is not entitled to compensation pursuant to the Act.

DECISION

  1. The Administrative Appeals Tribunal affirms the decisions under review.

I certify that the preceding 174 paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER


Signed: ..................[sgd]...........................................................

Associate


Dates of Hearing 13, 14, 15, 16 July and 3 September 2009

Date of Decision 18 January 2010

Counsel for Mr Sosa Mr L Grey

Solicitor for Mr Sosa Mr J Beal, Carol & O’Dea Lawyers

Counsel for the Respondent Mr P Jones

Solicitor for the Respondent Ms D Hatton, Australian Postal Corporation

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