Amato v Nrg Pty Ltd [2006] SAWCT 100

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His disability arises wholly or predominantly from reasonable action taken in a reasonable manner by NRG to counsel or discipline Mr Amato. (S 30A(b)(i))

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His disability arises wholly or predominantly from reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment. (S 30A(b)(iii))

4 As well as the evidence contained in the trial book I had the opportunity to observe Mr Amato, Mr Phillips, Mr Kemp, Mr French, and Mr Miller whilst they gave their evidence. There were a number of discrepancies about events that occurred.

5 I have preferred Mr Amato's recollection of events. I have accepted him as an honest witness. It is likely that the other witnesses' recall of events has been dulled by time and by the relative lack of importance to them of some of the events that occurred.

6 Mr Amato commenced employment with the Electricity Trust of South Australia (ETSA) as an apprentice over 30 years ago. He became an employee of NRG after it took over part of ETSA's business. For practical purposes he has been continuously employed for over 30 years by the one organisation. Since 1987 he has been a technical officer.

7 In June 2002 Mr Miller was appointed as Mr Amato's supervisor. There was a poor level of communication between the two men and mutual distrust developed. Mr Amato believed Mr Miller blamed Mr Amato for inaction on Mr Miller's part in relation to work that was to be undertaken in their area. I am satisfied that his belief was well founded. It is apparent from what occurred and from the evidence before me that the two men had a personality conflict. This was not the first personality conflict that Mr Amato had experienced at work. A previous personality conflict with another worker had been resolved through counselling.

8 There were a number of examples of the poor relationship that developed between Mr Miller and Mr Amato between mid 2002 and June 2003 when Mr Amato took time off as a result of stress at work. The following examples illustrate the problematic relationship between the two men:-

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On one occasion in late 2002 Mr Amato was on the phone and speaking in Italian and did not acknowledge Mr Miller when he came into the room. Mr Miller believed that Mr Amato had deliberately ignored him. Mr Amato's evidence was that he was not facing in a direction that he would have seen Mr Miller and he was unaware that Mr Miller was trying to get his attention.

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On another occasion Mr Miller told Mr Amato he was not permitted to drink coffee or eat breakfast after 7.15 am at work. At least one other employee was permitted to do this. Mr Miller did not explain to Mr Amato why he permitted the other employee to do this and not Mr Amato.

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There were difficulties between Mr Miller and Mr Amato over responsibility for resolving problems with the cooling of unimeters (unimeters are a type of thermometer that measure the temperature of pieces of plant).

• In early 2003 Mr Amato refused to engage in a performance review because of the way that Mr Miller approached him.

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Mr Miller refused to authorise payment for a piece of equipment known as a 'volt stick' that Mr Amato had requested.

9 There was little objective evidence of substance about Mr Amato's shortcomings between December 2002 and May 2003.

10 In mid June Mr Amato took one week of sick leave on the advice of his general practitioner, Dr Schroff, who noted that the cause of Mr Amato's depression and anxiety was his treatment at work. He did not give him a workers compensation prescribed medical certificate at that stage in the hope that his problems might settle.

11 Mr Amato instigated a meeting on 27 June 2003 with the power station manager, Mr Phillips, whom he knew socially. Mr Amato raised his concerns about the way Mr Miller treated him. Mr Phillips remarked in his statement that Mr Amato believed Mr Miller was picking on him.

12 Within a few days of that meeting Mr Amato was advised that he was required to attend a meeting. He was not told the purpose of the meeting until after it had commenced.

13 The meeting was described as a "performance counselling session". Mr French organised the meeting at the instigation of Mr Phillips. Mr French was unaware that Mr Amato had been absent from work as a result of depression and anxiety at the time he arranged that meeting. It took place on 1 July 2003.

14 It appears from the evidence that Mr Miller was also unaware that was the purpose of the meeting. He recorded in his diary on 30 June "Met with Bruce to discuss outcome of Danny's discussion with Mike. Need to have further meeting ... to discuss ways of managing his work".

15 Mr Kemp, the human resources manager, Mr French, the maintenance manager and Mr Miller attended the meeting with Mr Amato. Part of the meeting dealt with how the work of the group would be allocated and managed. Criticisms of Mr Amato were raised. Mr Amato tried to raise his concerns about the way in which he perceived Mr Miller was treating him. He believed Mr Miller was discriminating against him. The meeting was brought to an end.

16 Mr Amato considered that he had not been given a reasonable opportunity to raise his concerns. Mr Miller recorded in his diary that he had not been given an opportunity to answer what Mr Amato had raised.

17 The minutes of the meeting do not record all of the issues that Mr Amato raised with respect to Mr Miller.

18 After he received the minutes of that meeting Mr Amato wrote an email in response stating that the minutes were inaccurate as they did not include any reference to the concerns he raised about Mr Miller.

19 Mr Kemp responded by telephone and by cutting and pasting his criticisms of Mr Amato into Mr Amato's email text then returning it to Mr Amato.

20 After the meeting on 1 July there was no strategy adopted by NRG that was communicated to Mr Amato about how any concerns about Mr Amato's performance were to be addressed.

21 A further meeting was held on 23 July 2003. Again Mr Amato was not told the purpose of the meeting in advance. The meeting appears to have been just general criticism of Mr Amato. There was no attempt to set performance goals or implement action that might address his perceived shortcomings. Mr Miller was not in attendance at that meeting because of a death in his family.

22 On 14 October 2003 a third counselling session was held. Mr Amato had asked someone to attend. That person was dissuaded from attending by management. A person that Mr Amato did not know attended the meeting. It was not explained to Mr Amato why that person was there. He was the shop steward of another area and he had been asked to attend by management. At that meeting Mr Miller raised delays in a cable coating project. It is doubtful, given diary entries by Mr Miller in September and October 2003, that the cable coating delays were caused by Mr Amato.

23 At that meeting Mr Amato was directed to report daily to Mr Miller. Because of the nature of his work that appears to have not always been possible. A week later difficulties arose when Mr Amato requested that Mr Miller sign his diary to confirm that they had met. Mr Miller refused.

24 Throughout the process there was little objective evidence of Mr Amato's alleged poor productivity. There was no objective measure by which Mr Amato or an outsider could measure whether he had met NRG's requirements.

25 Shortly after the third counselling session his general practitioner certified him unfit to work. He returned to work on reduced hours from 20 November 2003. On 29 April 2004 his claim was rejected. He was then required to return to work on full time duties under the supervision of M Miller. Soon after that his general practitioner certified that he was totally unfit for work.

26 He was then referred to a psychiatrist Dr Dignam, who is of the view that Mr Amato has been incapacitated for work since that time.

27 Dr Dignam first saw him in December 2003. He reported to Dr Schroff he reported that '... his isolative and somewhat perfectionistic personality have made him a target for criticism'. In a later report he expressed the view that Mr Amato '... has a personality style that makes him vulnerable'. He regarded the problems in his relationship with his supervisor as substantially responsible for this presentation.

28 Dr Ewer in his report of 26 March 2004 recommended the services of a mediator be engaged to address the issues between Mr Miller and Mr Amato. He recommended limiting Mr Amato's contact with Mr Miller until the mediation had occurred.

29 When the evidence of Dr Dignam is viewed in the light of the history of the interaction between Mr Amato and Mr Miller it is clear that the causative factor was not the process that the employer engaged in relation to counselling or disciplining Mr Amato but rather the personality conflict between Mr Amato and Mr Miller that remained unresolved.

30 I have accepted Mr Rossi's submission that the substantial cause of Mr Amato's disability was the personality clash or conflict between him and Mr Miller. I accept that the disability developed over the period from mid 2002 until June 2003. The two men had a poor relationship as was evident from their failure to properly communicate about matters relating to work such as the cooling for the unimeters.

31 Mr Rossi submitted that the purpose of s 30A of the Act is not to disentitle workers in Mr Amato's situation. Mr Stanley submitted that the conduct of Mr Miller could be characterised as administrative action and therefore Mr Amato had to prove that the conduct was unreasonable.

32 If every interaction between a line manager and his staff was an administrative action for the purposes of S30A then Mr Amato would have to prove that those actions were unreasonable for his claim to succeed.

33 In Summers at p 248 Doyle J referred to administrative actions as "decisions or actions by the employer which are in some way related to the workings or functioning of the workplace rather than to the actual task performed by the worker".

34 In my view the personality conflict between Mr Amato and Mr Miller cannot be characterised as 'administrative action' as it falls outside 'the workings or functioning of the workplace'. If the interaction between the two men is broken down and that part of Mr Miller's conduct that caused Mr Amato's disorder is analysed it cannot be properly described as administrative action. I have accepted Mr Amato's evidence about the way Mr Miller treated him. It was Mr Miller's attitude and unfortunate manner in dealing with Mr Amato that was the source of the conflict.

35 At the conclusion of the hearing I requested the parties to make submissions regarding the disciplinary procedure in the Enterprise Bargaining Agreement. As I have decided that the cause of Mr Amato's disability is the personality conflict between him and Mr Miller the enterprise bargaining agreement is not in my view relevant to this matter.

36 There is no dispute that Mr Amato has been incapacitated for work as a result of his anxiety disorder and that he continues to be incapacitated.

37 Mr Amato has suffered a disability consisting of a disorder of the mind and his employment by NRG was a substantial cause.

38 I conclude that Mr Amato is entitled to compensation because his disorder arose from a personality conflict with his supervisor. Mr Amato has established that his disability did not arise from reasonable administrative action taken in a reasonable manner or from reasonable action taken in a reasonable manner by NRG to counsel or discipline him.

39 The determination of the compensating authority to reject Mr Amato's claim is to be substituted with a determination accepting his claim.

An appeal against any part of this decision pursuant to s 86(1) of the Act must be filed with the Registrar within 14 days of the delivery of this decision. The form titled Notice of Appeal must be used. The Notice must be served on all parties.