AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Administrative Appeals Tribunal of Australia
You are here:  AustLII >> Databases >> Administrative Appeals Tribunal of Australia >> 2010 >> [2010] AATA 52

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

MacDonald and BHP Billiton Ltd [2010] AATA 52 (27 January 2010)

Last Updated: 27 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3834

GENERAL ADMINISTRATIVE DIVISION
)

Re
IAN MACDONALD

Applicant
And
BHP BILLITON LTD

Respondent

DECISION

Tribunal
Dr J D Campbell, Member

Date 27 January 2010

Place Sydney

Decision
The decision under review is affirmed.

....................[Sgd]...................
Dr J D Campbell
Member

CATCHWORDS

SEAFARERS COMPENSATION – nature of psychiatric condition – multiple employers – nature and condition of employment – consequences of termination – assessment of entitlement to compensation – decision under review affirmed.


Seafarers Rehabilitation and Compensation Act 1992 ss 3, 9, 26, 28


Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316

Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795


REASONS FOR DECISION


27 January 2010
Dr J D Campbell, Member

  1. Mr MacDonald is a 51 year old self-represented man, who suffers from a disabling condition. Mr MacDonald commenced his seafaring career in June 1989, when he attended the Launceston Maritime College. Mr MacDonald’s seafaring career ceased when BHP Billiton terminated his employment in a letter on 15 March 1999.
  2. Mr MacDonald lodged a claim for compensation on 5 October 2007, citing occupational stress and injury to the mind. He claimed the injury occurred while he was on board various vessels undertaking general duties, as well as during rest periods. He further claimed his role change from an integrated rating (IR) to an engineering officer in 1993/1994 contributed to his injury in the following way:
After having conformed to the seaman IR socialisation processes and fitted into the required mould, including adaptation to thinks, don’t thinks, do’s and don’ts. I had extreme difficulty in reversing the way my mind worked to fit into the company oriented mould that was expected of me, after I changed from IR to marine engineer officer.
I felt like I was mentally jammed and still do.
  1. In an accompanying statement dated 5 October 2007 (T5), Mr MacDonald detailed that he had indicated to Dr De Bruyn that his date of injury was 8 December 1992, as this was the date he first signed articles in his new role environment of marine engineering, after three years in the IR type role. Mr MacDonald further recorded that:
The difficulties I had and still have relating to conformity issues as part of the role change process certainly began after that date and intensified exponentially after January 1994 when I signed articles as a licensed engineer ... It is only very recently that I have begun to realise the effects to me from the system change that I was a part of.

  1. On 21 January 2008, the Respondent denied liability in relation to Mr MacDonald’s claim for compensation for a psychiatric injury arising out of or in the course of his employment with BHP Billiton between 1993 and 1999, pursuant to sections 3, 9, 26 and 28 of the Seafarers Rehabilitation and Compensation Act 1992 (the Act).
  2. Mr MacDonald applied for review on 17 April 2008. On 19 June 2008, the Respondent affirmed its earlier determination of 21 January 2008. This is the reviewable decision before me.

ISSUES

  1. The relevant issues in this matter are:

FURTHER BACKGROUND MATERIAL

  1. Mr MacDonald detailed the following circumstances of his life and employment history:

THE MEDICAL EVIDENCE

  1. In August 1992, Dr Arnold referred Mr MacDonald to the Hunter Area Mental Health Service (Shortland Clinic). Notes made at that clinic on 4 August 1992 detail Mr MacDonald as stating “there are skeletons in the family closet, and in the past has had self esteem problems.” It is noted that Mr MacDonald presented as a tentative fellow, somewhat lonely in life and unsure about close relationships (exhibit R4).
  2. On 16 February 1995, Mr MacDonald first attended upon Mr Acutt, in response to his request for assistance under the InterLock Employee Assistance Program. Mr Acutt detailed his history since joining the service in Launceston in 1989 and concluded that Mr MacDonald has a personality disorder, which has resulted in his ostracism and hence his growing paranoid delusions. The notes indicate that Mr Acutt saw him again on 23 March 1995 and 22 February 1996 and both reports indicate ongoing issues (exhibit A2).
  3. On 24 July 2003, Dr Bailey, a locum psychiatrist with the Rockhampton District Mental Health Service, wrote to Dr Donohue confirming the latter’s opinion that Mr MacDonald has a paranoid psychosis, being either a delusional disorder or a functional psychosis (schizophrenia). Dr Bailey attached an assessment protocol completed by a clinical nurse consultant. In this protocol it is noted that he has a 19 year history of paranoid delusional beliefs stemming from a complex delusional system involving his beliefs about changes in our culture and politics. On examination, the following comments were made in relation to “thought”:
Form: He was over inclusive both in his verbal and written communications and also demonstrated tangentiallity, blocking and derailment.
Content: This included persecutory ideas, thought insertion and projection, sexual references in relation to transsexuals and homosexuals and ideas about social and political manipulation with himself as the center (sic) of some social engineering conspiracy.

In relation to “perceptual disturbance” the assessment noted:

He relates a complex delusional system which includes thought insertion and projection, ideas of reference from the media and the ability to determine others sexuality by their appearance. He has a very entrenched belief that, in 1994 when he became a marine engineer and entered the management level in the maritime marine, members of “the Left” pressured him to break down social, cultural and sexual barriers in society. (exhibit R7)
  1. In a discharge summary from the same mental health service dated 17 September 2003, it was noted that Mr MacDonald became increasingly agitated when challenged on his delusions and had deteriorated despite outpatient review. He had been admitted as an involuntary patient for about a fortnight and was treated with medication (exhibit R7).
  2. In a further summary assessment dated 21 June 2006 (exhibit R7), Dr Rofe from the same mental health service concluded that counselling will be of little benefit as his chronic paranoid schizophrenia, along with his compulsive and narcissistic traits, makes it too difficult.

MR ROBERT KERR – PSYCHOLOGIST

  1. In a report dated 2 October 2007 (T4), Mr Kerr noted Mr MacDonald’s presentation as complex and that his preferred method of dealing with issues is to rationalise them by developing a language that allows him to understand and cope with a situation that first developed some years ago and is ongoing. Mr Kerr continued:
Mr MacDonald is thoroughly absorbed by coping with and trying to control the emotional and cognitive turmoil that is a constant distraction to him and one, which he often feels unable to control to the extent that he is overwhelmed. His intense focus on the matter and his hyperarousal contribute to his often being unable to distinguish whether everyday occurrences are coincidences or events associated with his involvement with the marine industry.

DR KATHRYN LOVRIC – CONSULTANT PSYCHIATRIST

  1. In a report dated 20 December 2007 (T15), Dr Lovric detailed Mr MacDonald’s clinical history. Dr Lovric noted that he gave slow and detailed accounts with recurring paranoid themes, and she noticed disorder in the form and structure of his sentences and evidence of disorganised thinking. He expressed ideas consistent with paranoid delusions and ideas of reference and probable auditory hallucinations.
  2. Dr Lovric considered that the most likely diagnosis is schizophrenia. She said it is usually constitutional in nature, and can be unmasked by severe and significant stress, however, the reported stress in this matter does not appear to be of that calibre.
  3. I also note that Mr MacDonald has consulted Dr Vickery, a consultant psychiatrist, in Newcastle on five or six occasions, with Mr MacDonald stating that when he explained his “socialisation concepts”, Dr Vickery “just looked at me dumbly and or suspiciously.” Further I observe that Mr MacDonald also consulted Dr Parker, a psychiatrist, on a few occasions, but again he felt that she did not take some of his statements seriously.

DR GEOFFREY ROBINSON – CONSULTANT PSYCHIATRIST

  1. In a report dated 19 May 2008 (exhibit A6), Dr Robinson, after noting that he had seen Mr MacDonald on six occasions since February 2008, concluded that his working diagnosis for Mr MacDonald’s psychiatric condition is paranoid personality disorder.

DR JIM JUPP – CLINICAL PSYCHOLOGIST

  1. In a letter to Dr Martin dated 6 April 2009 (exhibit A3), Dr Jupp concluded from Mr MacDonald’s history that an adjustment disorder (mixed anxiety/depression) developed slowly over the period 1993-1999, associated with stressors arising from his change in role from seaman to engineering officer. Dr Jupp observed that Mr MacDonald experienced an episode of decompensation with both homophobic (encounters he had as a trainee engineering officer) and political delusional elements (perceptions that he was part of a vanguard trained to break down the social boundaries between crew and officers). Dr Jupp considered him to be depressed and with noticeable phobic anxiety. This, he considered, correlated with very strong interpersonal sensitivity, relatively mild paranoid ideation exhibited in schizoid beliefs.
  2. In a further progress letter to Dr Martin dated 12 June 2009 (exhibit A5), Dr Jupp observed that Mr MacDonald “had only one certain belief about himself in making the transition from seaman to engineer. Specifically that he was mechanically skilled. He was sure that this would be recognised by others despite their potential antagonism in other respects. Consequently he was devastated by the part of the reason given for his dismissal which referred to his low performance.”
  3. In oral evidence, Dr Jupp agreed that if an individual wants to be accepted by a group, it is certainly much easier for that to occur if the individual complies with the norms of the group, however those norms may be communicated. Dr Jupp acknowledged it to be unequivocally true that performance of ascribed tasks is a factor leading to group formations. Dr Jupp also acknowledged that the extent to which one is able to adapt to all the group’s norms would be determined by factors within the individual, and that it may have been a bit more difficult for Mr MacDonald during his period as a seaman to fit in because of his strong mechanical background and his inability to undertake work for which he had been trained. Dr Jupp also considered, as a result of his discussions with Mr MacDonald, that Mr MacDonald held a perception that there was a vast differential between officers and seamen, and that he also had a belief at some point in his career as a seaman that the system had changed. In Dr Jupp’s opinion it was Mr MacDonald’s perceptions and beliefs about the system that resulted in him being in conflict for a very substantial period of time, and in such periods, his perception was that he was not supported. Dr Jupp was also specific in stating that the first episode of collapse (decompensation) by Mr MacDonald occurred while he was a seaman.

DR GREG STEELE – CONSULTANT PSYCHIATRIST

  1. In a report dated 14 October 2008 (exhibit A1), Dr Steele detailed Mr MacDonald’s clinical history as related to him. Dr Steele considered Mr MacDonald’s thought processes to be normal in flow and form and appropriate and congruent in content and apart from his belief system concerning political re-socialisation and the union industry conflict, there were no other abnormalities elicited.
  2. Dr Steele considered Mr MacDonald to be suffering from a psychotic illness, most probably a delusional disorder of the persecutory type. Dr Steele noted that apart from the impact of the delusions and their ramifications, Mr MacDonald’s functioning has not been markedly impaired and his behaviour is not obviously odd or bizarre, until one gets to know him well or until he reveals his ideational content. Dr Steele also included an alternative diagnosis of chronic paranoid schizophrenia, but in his view, the minimal presence of perceptual anomalies and the general preservation of his personality would count against this.
  3. Dr Steele considered that in Mr MacDonald’s case, his transition from socialist inspired unionist to officer and what he perceived as the disgruntled attitude of both classes of seafarers towards him, given the close confines of the ship, would have been a major stressful event. Dr Steele considered that, while his working situation may not have been the cause of a pre-existing predisposition, the situation he was in and the attitude he brought to the situation may have acted as a trigger for whatever neurophysiological cascade of events needed to occur to result in eventual psychosis. Dr Steele also noted that the maintenance of his psychotic illness since 1999 is due to the inexorable process of the illness, rather than the actions of any particular individual or group.
  4. In oral evidence, Dr Steele considered that, when Mr MacDonald was called to Melbourne in 1996 because of interpersonal and vocational difficulties, it was the advanced nature of the psychosis that contributed to his difficulties, with any role change issue being a historical event. In assessing onset, Dr Steele considered the events in the Hunter Street Mall in 1994 more significant than the summary dismissal in 1993, and regarded it as the first of Mr MacDonald’s psychotic episodes, although the dismissal event in 1993 was of a greater significance than he had previously believed when assessing the history given to him by Mr MacDonald, with this event possibly being one of the triggers amongst many. Dr Steele also considered that Mr MacDonald would refract all his experiences through the lens of his particular ideational peculiarities. Dr Steele considered that Mr MacDonald’s dismissal in 1999 would have probably aggravated symptoms, but played no part in maintaining such symptomatology. Dr Steele also stated that Mr MacDonald’s three year period as a seaman may have had some effect on him, but he had no evidence to say one way or the other that it was the originating event.

DR ROBERT HAIK – CONSULTANT PSYCHIATRIST

  1. In a report dated 4 November 2008 (exhibit R2), Dr Haik, having detailed a clinical history, noted that Mr MacDonald demonstrated the presence of thought disorder:
  2. Dr Haik considered the appropriate diagnosis for Mr MacDonald’s psychiatric condition is paranoid schizophrenia. He considered the illness was more likely to have emerged unprovoked as opposed to resulting from work stress. Dr Haik noted that a key feature of schizophrenia in those who have the condition is a difficulty relating to others. Most frequently they are aloof, socially isolated, and feel alienated by and suspicious of others. Dr Haik considered it probable that the expression of the developing schizophrenia led to his out of character behaviour and subsequent dismissal rather than the conflict of the cultural interface. Dr Haik also noted the existence of supporting evidence for Mr MacDonald’s problem being driven by schizophrenia, namely that his symptomatology has continued unabated since leaving the maritime industry. It is the continuance of his psychotic condition in the absence of a stressful workplace that makes it most unlikely that it was precipitated by his workplace stress.
  3. In oral evidence, Dr Haik confirmed his view that his diagnosis remained paranoid schizophrenia. He said it was a slow developing condition probably unassociated with Mr MacDonald’s maritime activities in terms of causation, but was unable to exclude maritime workplace stress as possibly contributing to the illness.

CONSIDERATION AND FINDINGS

  1. In this matter, much written and oral material has been presented by Mr MacDonald. In so doing he has repeatedly detailed his story as he perceives it to have occurred, and defined his beliefs according to his interpretation of what occurred over his period of maritime service as a seaman and an officer and his life experiences since his termination from the maritime industry in March 1999. I observe that his often repeated story is consistent in defining these particular beliefs, but at times it is evident that there is an absence of consistency in defining particulars relating to times and events. For example, the year and reason for attending the Shortland Clinic in August 1992, the difficulty in remembering names of particular engineering officers and his apparent difficulties in addressing and/or redressing issues that occurred in the maritime workplace. As far as any inconsistencies are concerned, I accept that such are inherent consequences of psychiatric disease.
  2. I am mindful that Mr MacDonald has lodged his claim with BHP Billiton as the nominated employer and respondent in this matter. I note that Mr MacDonald was employed as engineering officer with BHP Billiton from 27 December 1993 until his dismissal on 15 March 1999. I observe that section 3 of the Act commenced on 24 December 1992 and other relevant sections on 24 June 1993. I note that Mr MacDonald’s maritime service and experiences commenced in June 1989, and that between that date and his employment with BHP Billiton, other employers existed, including Australian Maritime Industry Training Authority and Caltex. In all likelihood, any claim against such employers would be addressed within the context of the Seamen’s Compensation Act 1911 (repealed).
  3. I have been particular in detailing Mr MacDonald’s relevant clinical, social and work history and his beliefs formed and held as a consequence of that history. I have no doubt that he holds such beliefs, with the verbalisation and documentation of such beliefs a consequence of his interpretation of all the circumstances that he experienced during his maritime service. Further, I am satisfied that Mr MacDonald evolved a better understanding, a reinforcement of such beliefs, and an increased ability to express such beliefs both orally and in writing, as a consequence of his two years of research into organisational and behavioural psychology and his increasing interaction with psychologists over time.
  4. In reviewing his work history with the maritime industry, I observe that there was a particular issue towards the end of his period of training at Launceston which appears to have arisen as a consequence of a letter written by Mr MacDonald to a supervisor concerning pay and other issues at the College. I note that during his three years of seaman duty, Mr MacDonald was dissatisfied about his inability to use his mechanical skills in his everyday duties and that as a consequence, it was necessary for him to embrace the union movement. I observe that as a trainee engineer serving on the Caltex ship, Australia Ocean, on the second or third trip to Westernport Bay, Mr MacDonald, having been forewarned by one of the outgoing crew that the chief engineer was going to have him sacked, was dismissed for failing to return to duty at the appropriate time. Thereafter I note the circumstances of Mr MacDonald’s service as an engineer as described earlier in this decision.
  5. In addressing the nature of Mr MacDonald’s psychiatric condition, I have detailed the relevant psychological and psychiatric evidence before me. I am satisfied on the balance of probabilities that Mr MacDonald suffers from a psychiatric illness and that the probable diagnosis is chronic paranoid schizophrenia. In so finding, I rely upon the opinions of the psychiatrists and clinical nurse consultant from Rockhampton Mental Health Service, although I would need further evidence before I could accept that Mr MacDonald had a 19 year history of mental health problems at the time of presentation. Further, I rely upon the opinions of Drs Lovric and Haik, who considered Mr MacDonald to be demonstrating thought disorder as well as experiencing auditory hallucinations. I note that Dr Steele considered Mr MacDonald as suffering from a related psychotic illness, namely delusional disorder. While in oral evidence he did agree to disordered thought content, he considered the nature of the auditory experiences and the relative intactness of personality to be more consistent with his diagnosis.
  6. I acknowledge that Dr Jupp considered adjustment disorder with anxiety and depressed mood to be the appropriate diagnosis. In making such a diagnosis, Dr Jupp noted homophobic and political delusional elements, and mild paranoid ideation exhibited in schizoid beliefs. Further, Dr Jupp considered the disorder to have evolved over the period of his maritime service with his first episode of decompensation occurring as a seaman. In rejecting such a diagnosis, I note the opinion of the other psychiatrists that I have nominated, as well as Dr Jupp’s insistence that medication is required to deal with his continuing symptoms as well as counselling, this being more in line with an underlying psychotic disorder, as all the psychiatrists suggest the same therapy.
  7. I have already noted that Mr MacDonald holds particular beliefs concerning both causation and his understanding of particular experiences that he was exposed to during his period of maritime service and continuing thereafter. Such beliefs are keenly held and include causation of his condition arising from the difficulties he experienced in conforming to the cultural norms expected at the officer/seaman interface as a consequence of moving from a unionised seaman to an engineering officer. Mr MacDonald also firmly believes that the many incidents that he has detailed did happen as he described, with his explanations for such happenings better articulated in more definitive language after his two year period of research into organisational and behavioural psychology in 2001 to 2003. I accept that he holds such beliefs and that because of these beliefs, he further believes that he is better able to portray his life experiences. I accept that such a belief system is an integral component of his psychiatric condition, and is very much a symptom of the nominated psychiatric disease which has been diagnosed.
  8. As Mr MacDonald’s chronic psychiatric condition is ongoing, and requires treatment by way of medication and counselling (Drs Steele, Lovric, Haik and Jupp), such an ongoing belief may not necessarily be a valid representation of the circumstances that he tried to explain by virtue of those held beliefs. In such circumstances, I would seek the availability of other corroborative material before accepting such beliefs as being of significant evidentiary weight or probative value.
  9. I note that different expert opinions have been proffered concerning the time at which Mr MacDonald’s condition became clinically evident. Mindful that such opinions depend on the extent and content of the clinical history made available for appraisal, I observe that Dr Jupp concluded that Mr MacDonald’s psychiatric difficulties commenced during his years as a seaman, with his condition evolving over subsequent years as a trainee engineer officer and as an engineering officer. Dr Steele considered the disease process became florid in 1994 at the time of the Hunter Street Mall incident in Newcastle, while Dr Haik considered the condition arose towards the latter part of his maritime service as an officer.
  10. I note that the psychiatric condition, schizophrenia, is said to be a constitutional disorder, often genetically determined. I observe from the expert opinions rendered that the clinical expression of this condition may arise unprovoked by environmental events or alternatively in response to a triggering event or issue. I further note that in the evolving course of the condition, a major difficulty experienced by the affected individual is his ability to relate to others. This is evidenced by the affected individual being aloof, socially isolated and feeling alienated and suspicious of others. In such situations, as expressed by Dr Haik:
It is probable that it was the expression of the developing schizophrenia that led to his out of character behaviour and subsequent dismissal rather than the conflict of the cultural interface, an entity to which he had been long exposed before his argumentativeness and non-conformity was dealt with.
  1. The opinion that the psychiatric condition, no matter what diagnostic label is attached by the clinicians in this matter, engendered the beliefs held, which in time created the interpersonal conflict, as espoused by Dr Haik, is central to the opinions of other clinicians, namely:

Mr Acutt – his personality disorder has resulted in his ostracism and hence his growing paranoid delusions.

Dr Jupp – his perceptions and beliefs about the system resulted in him being in conflict for a very substantial period of time.

Dr Steele – the maintenance of the psychotic illness since 1999 is due to the inexorable process of the illness.

I note that similar inferences may be drawn from the reports of Rockhampton Mental Health Service and Dr Lovric.

  1. While the above analysis may explain the cause and course of Mr MacDonald’s psychiatric condition, once the disease process has announced its presence, the issue remaining for determination is whether the pre-existing underlying constitutional condition arose to clinical expression unprovoked, or whether Mr MacDonald’s occupational stress born of his inability to conform with the expected cultural norms triggered the clinical onset of his condition. While earlier I detailed that there is much material to suggest that Mr MacDonald’s psychiatric condition arose, unprovoked, to clinical expression, the issue to be determined is whether Mr MacDonald suffered an ailment or an aggravation that was contributed to in a material degree by his employment. If so, this would constitute an injury pursuant to section 3 of the Act, provided it was not a result of reasonable disciplinary action taken against him.
  2. In addressing the issue of whether Mr MacDonald’s psychiatric condition was contributed to in a material degree by his employment, I observe that Mr MacDonald holds particular beliefs and perceptions as to why he experienced stress in the workplace. I accept that he holds such beliefs and perceptions. I further understand that there is no requirement at law that such perceptions pass a qualitative test based on an objective measure of reasonableness. While Mr MacDonald has described a number of specific incidents during his maritime service, his general belief was that stress arose intrinsically as a consequence of conforming to norms determined by and around the cultural interface dictated by the workplace. I earlier considered and concluded that stress arose as a consequence of Mr MacDonald’s disease process interacting with people and events in the workplace, and not the nature of the work or events occurring in the workplace. In the circumstances, my initial impression is that it is not open to me to conclude that either the nature of the work or the events in the workplace contributed, in a material degree, to Mr MacDonald’s psychiatric condition (Wiegand and Comcare [2002] FCA 1464; (2002) 72 ALD 795 considered and followed – the perceptions held do not relate to the nominated state of affairs found to exist. It was the disease process and not the nature of his duties in the workplace that created the conflict and resultant stress).
  3. In circumstances that I am in error in my analysis in the previous paragraphs, I move to consider whether workplace stress, as defined by Mr MacDonald in his beliefs and perceptions about his maritime service career, has made a material contribution either to the condition or the aggravation of his psychiatric condition. I note that the causal connection must be established on the probabilities and not left in the area of possibility or conjecture (Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316 at 323 – considered and followed).
  4. A careful analysis of the psychiatric opinions concerning the issue of contribution rendered in this matter conclude that Mr MacDonald’s workplace experiences and resultant stress may have or is possible (Dr Steele), stress was not of the calibre (Dr Lovric), workplace stress may have been a trigger for whatever neurophysiological cascade of events needed to occur to result in the eventual psychosis (Dr Steele) and it was more likely to have emerged unprovoked as opposed to resulting from work stress (Dr Haik). On the basis of such opinions, I conclude that it is possible that stress may have contributed to the clinical course of his psychiatric disease by way of being an aggravating factor, however, this does not assist Mr MacDonald in achieving a positive outcome in relation to his claim, as the causal connection must be established on the probability of contribution.
  5. Further, I am mindful that the word “material” has been further defined by Finn J in Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 (considered and followed). In the analysis of the material before me I am unable to nominate material which would permit me to find that the workplace stress (as opposed to stress arising as a consequence of the disease process and the effects of such, both in the workplace and elsewhere) was either significant or considerable, being adjectives employed in the interpretation of the word “material”.
  6. In such circumstances, I find that Mr MacDonald’s psychiatric condition was an ailment and that, on the balance of probabilities, it was not contributed to in a material degree by his employment for the reasons nominated in the previous paragraphs.
  7. The final issue that remains is whether Mr MacDonald’s psychiatric condition was aggravated by his dismissal from employment with BHP Billiton in March 1999. I note that Mr MacDonald was the subject of three disciplinary interviews by his employer on 8 July 1996, 15 February 1998 and 27 October 1998. Minutes recording all the meetings are included within exhibit R3. At the first meeting, the issues raised with Mr MacDonald were that he had been on compensation on a number of occasions, he had been reluctant to do a performance review, and his failure to answer an alarm. It is noted that Mr MacDonald raised the issue of having encountered “difficulties” in his transition from a rating to an engineer, which he thought arose out of a close relationship with the crew. It is noted that Mr MacDonald was advised of what the company expected of him, as the type of meeting he was having was not common, to which Mr MacDonald indicated that he understood.
  8. In October 1997, Mr MacDonald was advised that he had not completed the required number of performance reviews and was not eligible to have his salary reviewed.
  9. On 10 February 1998, an incident on board the Iron Spencer between the second engineer and Mr MacDonald was brought to the company’s attention. A record of a meeting held in Melbourne on 15 February 1998 at which Mr MacDonald together with an AIMPE representative attended, discloses that Mr MacDonald was advised that there was a need for him to make a more concerted effort to understand and accommodate other people around him in the workplace. It is noted that Mr MacDonald was given the “Distance Learning Package – Dealing with Difficult People”. Mr MacDonald was also advised that any further incident would lead to consideration of dismissal from the company – with Mr MacDonald being advised that it was to be treated as a “formal written warning”.
  10. On 6 November 1998, following a further meeting in Melbourne on 27 October 1998, Mr MacDonald was again advised about the company’s concerns regarding his ability to work safely and his performance, together with his failure to participate in the Officer Review and Development Program and his ability to work in harmony with other seagoing personnel. The letter to Mr MacDonald details what was said and what was expected of him.
  11. Following a further unsatisfactory performance review dated 19 December 1998 and Mr MacDonald’s failure to complete the “Dealing with Interpersonal Conflict” distance learning package as required, Mr MacDonald was dismissed by way of a letter dated 15 March 1999.
  12. After his dismissal, Mr MacDonald, with the assistance of AIMPE representation, had the dismissal conciliated before a commissioner of the Australian Industrial Relations Commission. The conciliation was unsuccessful and on assessment of the merits, Mr MacDonald was left with the option to lodge a notice of election. Mr MacDonald advised that he was unsuccessful in this matter.
  13. Some of the clinical material suggests that the dismissal on 15 March 1999 was the final indignity for Mr MacDonald (Dr Jupp) and probably aggravated symptoms but played no part in maintaining such symptomatology (Dr Steele). From such a statement, I conclude that Dr Steele is referring to an exacerbation of symptoms, rather than an aggravation of the psychiatric condition. Further I observe that other psychiatric opinion suggests that this is but a further episode in a continuum of symptomatology consistent with his psychiatric disorder. On the evidence before me I am unable to find that Mr MacDonald suffered an aggravation of his psychiatric condition, let alone an aggravation that was materially contributed by his employment.
  14. Finally, and for the sake of completeness, I did raise at the hearing the issue of the respondent employer failing to become aware of Mr MacDonald’s psychiatric condition over a six year period, despite his unsatisfactory performance, a number of complaints about his behaviour and three disciplinary interviews. I further note that at the interview in Melbourne in 1996, management advised that such summons to a meeting in Melbourne was not a common event. My reason for raising such an issue relates to the exclusionary provision contained in section 3 of the Act, “reasonable disciplinary action”.
  15. While the records before me demonstrate indicia of a reasonable disciplinary process, my concern relates to such a process being undertaken on a person without an understanding or knowledge that Mr MacDonald had a serious psychiatric condition. During the hearing process I explained this issue and was rewarded with an increased understanding of why such could occur. Issues raised included the nature of the disease process and the desire for the individual to be a loner, the episodic nature of symptoms, a desire by an individual to not acknowledge symptomatology, the work situation involving swings with different ships and crews and prolonged leave, and the ability of the seafaring community to assess the difference between unusual/eccentric behaviour and pathological behaviour. In such circumstances, my hindsight appreciation was adjudged just that. In the absence of particular material suggestive of Mr MacDonald’s behaviour being knowingly believed to be suggestive of a psychiatric disorder, I would conclude that his dismissal involved a reasonable disciplinary process.

DECISION

  1. The decision under review is affirmed.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member


Signed: ..........................[Sgd]..........................

Associate: Jennifer Wong


Dates of Hearing 17-18 June, 9-11 November 2009

Date of Decision 27 January 2010

Representative for the Applicant Self-represented

Counsel for the Respondent Mr J R Wallace

Solicitor for the Respondent Curwoods Lawyers


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2010/52.html