Bui v Australian Postal Corporation

14 At the hearing of the appeal, the Court permitted the questions of law to be amended to read: (a) Did the Tribunal err in failing to consider whether the standing down of the applicant from employment on 8 May 2006 aggravated her existing condition? (b) Did the Tribunal fail to accord the applicant procedural fairness by dissuading her from calling medical evidence to support her claim in respect of the aggravation of her condition on 8 May 2006? 15 Ms Bui was represented at the hearing of the appeal by Mr Warren Friend, of counsel, who appeared pursuant to the pro bono representation scheme provided by O 80 of the rules of this Court. 16 Mr Friend said that the Tribunal erred in law in failing to consider whether the events of 8 May 2006, when Australia Post refused to accept Ms Bui's return to work, led to a separate and distinct injury within the meaning of the Safety Act. 17 Mr Friend also raised what he described as a subsidiary question. That was whether the Tribunal denied Ms Bui procedural fairness, "by the manner in which she was prevented or dissuaded from calling medical evidence in support of her claim that the 8 May 2006 incident constituted a separate injury". During the course of his submissions Mr Friend withdrew the reference to prevention and relied only on dissuasion. 18 Ms Bui claims that she suffered an injury in January 2006, as a result of her treatment by her employer in the course of the disciplinary process. She further claims that on 8 May 2006, the injury first suffered in January 2006 was aggravated. She claims that the aggravation of the injury caused by her treatment on 8 May 2006 had nothing to do with the disciplinary process but arose from Australia Post's view that she was not fit to perform her duties. 19 Counsel for Australia Post, Mr McInnis, submits that there was not before the primary decision makers, or the Tribunal, any claim arising out of what occurred on 8 May 2006. He refers to s 54 of the Safety Act. Subsection (1) of s 54 provides that compensation is not payable to a person under the Act "unless a claim for compensation is made by or on behalf of the person under this section". 20 The actual claim made for compensation relates to one injury only, although that may be the fault of the form which itself focuses on an injury or "the injury". As at 8 May 2006, Ms Bui complained of a series of events which have caused her depression and stress and did so on the very day she claims that her condition was aggravated by the behaviour of Australia Post human resources management. 21 The letter of Ms Bui's former solicitors referred to at [5] above did not challenge the original determination of the claim on the basis that it had not been properly understood by the claims officer. The letter referred to the incident of 8 May 2006 when Ms Bui "was sent home", but made no assertion that the events of 8 May 2006 had caused Ms Bui's existing condition to be aggravated. The Senior Claims Manager's decision also made no reference to the circumstances of Ms Bui's leaving work on 8 May 2006. 22 The hearing before the Tribunal commenced on 21 October 2008. Mr Bui appeared for Ms Bui. Mr Bui has no legal training. Australia Post was represented by counsel. Counsel told the Tribunal that that morning Ms Bui had given Australia Post an undated two page document headed "Part 4, Details of What Happened". This description corresponds with that part of the claim form where Ms Bui referred to a series of "harassing and bully tactics" etc. The document consisted of fourteen typed paragraphs and was said to be a "supplement" to what appeared under the relevant heading of the claim form. 23 At paragraphs 13 and 14 of the document referred to by counsel before the Tribunal, Ms Bui said: 13. Mon May 8, 2006, on my return to work from 3 weeks sick leave, I found out that my key and my access code was no longer open my office door. I rang the door bell, at my total surprise, Suzie Stride and Doug Cunningham were there waiting for me. They handed me a letter from Ghaith Krayem HR Manager saying that I was not allowed to go back to work. I gave them the clearance certificate from Dr A. Patrick, but they still insisted that I had to go home. 14. After 2 days listening to wrong accusations about me from the 2 HR managers, I totally broke down. Later on I found out that the specialist appointment from AP for me to return to work as per their letter had been cancelled. It meant I was stood down indefinitely.

24 When the matter returned to the Tribunal, on 2 March 2009, counsel for Australia Post made the following concessions: (1) that there is evidence to support a finding that the applicant may have suffered depression and anxiety, a condition which is outside the boundaries of normal mental functioning and behaviour, and (2) …if the applicant suffered a psychiatric condition, namely depression and/or anxiety that it manifested itself in about January 2006… 25 Counsel went on to submit that as a result of these concessions there would be no need for the Tribunal to hear medical evidence, "as the only issue remaining before the Tribunal is the question of reasonable disciplinary proceeding, which is a question of fact and cannot be addressed by the doctors". 26 The Tribunal asked Mr Bui if he understood what counsel was saying. Mr Bui replied to the effect that medical evidence was still necessary to show that the injury was employment related. Counsel responded to the effect that there had been a concession about that. An exchange then occurred between the Tribunal and Mr Bui as follows: THE TRIBUNAL: What [counsel] is saying, Mr Bui, is that the respondent is not disputing or is willing to accept that your wife's employment contributed to a material degree to her medical condition, okay? That means that she's entitled to compensation, unless one of the exclusions applies, and in this case the exclusion that the respondent says applies is that her situation arose as a result of reasonable disciplinary action. MR BUI: Yes, I think if that is the case there's no need to call any doctors. Ms Bui then addressed the Tribunal herself, stating, in effect, that Dr Patrick should be called. She said: MS N BUI: I think the doctor treated me for, especially Dr Patrick, who is observing me since 2004. He can see my condition and he understands my situation, so the doctor witness is very important to tell you how my illness coming from. The question of reasonable disciplinary action and that the question of fact, I understand, but also behind all the emotion and illness is not simply coming from the disciplinary action, so that's where the doctor has evidence and through the examination they are able to bring it out. It's more detailed in the actual written report (emphasis added). Mr Bui then told the Tribunal that he would try to explain the situation to Ms Bui. The Tribunal then said: …Ms Bui…I don't really need to hear from the doctors, because of what [counsel] is saying to me, I don't need to hear from doctors about your condition because the respondent is conceding that you have an illness.... That's been conceded and hearing the doctor tell me again isn't really going to help me. What I need to decide and the only thing I need to decide is whether your condition was caused by a reasonable disciplinary action - whether the action taken was reasonable… 27 The Tribunal then stood the matter down for about ten minutes. On the resumption counsel said that Mr Bui had one matter that he wanted raised and that was "the question of the doctors addressing permanency". Counsel said that that issue would only arise if Ms Bui succeeded on her claim before the Tribunal. The Tribunal agreed that that issue was premature at that stage. The Tribunal then said: TRIBUNAL: But as far as the other matter is concerned, we have now explained to your wife about the exclusion in section 4 of the definition of injury relating to the disciplinary process. MR BUI: Yes I did. TRIBUNAL: She understands that. Very well, thank you. MR BUI: On the basis, as the respondent suggested, there is no need to call the doctors as witnesses today. 28 There were two reports of Dr Patrick in the Tribunal's papers. The first is dated 7 September 2006. It refers to Ms Bui presenting symptoms of feeling stressed, depressed and anxious in January 2006. It also refers to "a slow improvement in her mood" and to "some improvement in her condition", although stating that her "recovery remains fragile". The second letter is dated 20 April 2008. It refers to an event in February 2008. 29 The medical reports provided by Dr Patrick do not address whether Ms Bui had aggravated an existing injury on 8 May 2006. Even if Dr Patrick had been called, it is most unlikely that his evidence would have assisted Ms Bui in her case before the Tribunal. 30 The Tribunal heard evidence from Ms Bui and Ms Doyle on 3 March 2009 and again from Ms Bui on 12 May 2009. Mr Friend did not submit that any such evidence supported the contention that a separate injury occurred on 8 May 2006. Towards the conclusion of the hearing on 12 May 2009, Mr Bui said that there was one more thing he wished to raise in Ms Bui's case. The transcript records the following exchange between the Tribunal and Mr Bui. MR BUI: Because the one matter, like that's because of these - the stand down letter that also contributing to the Nina [Bui] injury, so I reckon that that action of standing down is not disciplinary action. THE TRIBUNAL: The letter dated 8 May 2006? MR BUI: Yes, that's correct. Because that basically - what they did was they basically Nina feels to humiliated in front of - they did it in front of…. THE TRIBUNAL: [perhaps cutting off the words "customers and staff"]. Yes, I understand what you're saying. You can tell me that during submissions tomorrow.

31 The next day was taken up with evidence from Ms Stritthof. Mr Bui made his submissions on 16 October 2009. During the course of those submissions he made the following points about the events of 8 May 2006: · Ms Bui was "badly humiliated" when she was "stood down by Suzie Stride and Doug Cunningham at her workplace"; · Ms Bui was sent home, being escorted from her office in front of staff and customers; · The "stand-down" had nothing to do with disciplinary action; · The "stand-down" - was "humiliating, inappropriate and illegal"; · The "stand-down" was "the final act that broke down her [Ms Bui's] spirits and damaged her mental health which was fragile as a result of being bullied and harassed over a long period of time by her managers".

Mr Bui then said: This final act of standing down the applicant aggravated her pre-existing injury condition. That was the first time that claim had been made. Mr Bui was making his final submissions on Day 5 of a proceeding which commenced on 21 October 2008, almost one year beforehand. 32 Mr Friend submitted that the Tribunal erred by not permitting medical evidence to be heard about the 8 May 2006 events. He relied on the judgment of Wilcox J in Bowman v Comcare [2000] FCA 88, which he contended was "on all fours" with this appeal. 33 In Bowman, the Tribunal had failed to consider an alternative case put by an injured worker as to the cause of the relevant illness. The alternative case was said to raise an issue of temporary aggravation. Justice Wilcox held that the evidence raised that case and that such a case was put. His Honour noted at [13] that two medical experts accepted by the Tribunal had raised the issue of temporary aggravation. The judgment does not reveal whether the decision, which the Tribunal reviewed, dealt with any claim based on temporary aggravation. In the present matter, the decisions subject of review by the Tribunal did not deal with any claim for compensation for a separate injury arising out of the 8 May 2006 events. No such allegation was advanced in the claim made on 8 May 2006 to Australia Post, the primary decision makers, or to the Tribunal, at least until the final submissions of Mr Bui. Further, in contrast to Bowman it cannot be said that the medical evidence intended to be relied on raised a case in support of a new injury caused by aggravation of a pre-existing injury. 34 In Hart v Comcare (2005) 145 FCR 29 this Court held that, provided a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in s 4 (1) of the SRC Act, that disease is not an injury as defined in s 4 (1) and it is therefore immaterial whether that disease is also suffered as a result of any other employment related circumstance. This was referred to in the Tribunal's reasoning at [43]. In order for the proviso to apply, it is sufficient that the relevant disease is suffered as a result of any of the circumstances specified. It is not necessary that the disease be suffered solely as a result of any of those circumstances. 35 At [43], the Tribunal went on to say near the conclusion of its reasons: In view of the Tribunal's findings regarding reasonable disciplinary action there is no need to consider whether the evidence of 8 May 2006, when Ms Bui attempted a return to work, contributed to her medical condition. 36 The Tribunal, in the passage quoted above from [43], appears to have considered that if any separate injury resulted from the events of 8 May 2006, such a separate injury would also have been suffered as a result of reasonable disciplinary action taken against Ms Bui. Ms Bui's attempted return to work on 8 May 2006, arose as a consequence of her seeking to return from sick leave, which she had taken due to her illness, this resulted from what was found by the Tribunal to be "reasonable disciplinary action". In that sense, it seems that the Tribunal is saying that, even if the 8 May 2006 event had formed part of Ms Bui's claims on that day, any separate injury suffered on that day would have been suffered as a result of the disciplinary process which commenced in January 2006. It was unnecessary for the Tribunal to consider whether such an injury would have resulted from the disciplinary process because it did not have articulated before it, supported by any evidence, which may have been given in aid of it, any properly discernable claim that a separate injury occurred on 8 May 2006, pursuant to s 53 and s 54 of the SRC Act. 37 Dealing squarely with the questions of law raised by Mr Friend, the Tribunal, as the matter was conducted before it by Mr Bui, was not required to consider whether Ms Bui's "standing down" on 8 May 2006 aggravated her existing condition. Counsel for Ms Bui points to the case of Federal Broom Company v Semlitch (1964) 110 CLR 626 per Kitto J at 634, to support the argument that the event on 8 May 2006 caused an aggravation of Ms Bui's underlying condition, and that the consequences of that aggravation would be compensable. However, the medical evidence which Ms Bui sought to rely upon did not establish beyond question that the incident on 8 May 2006 impacted upon a pre-existing condition. The medical reports from Dr Patrick, on which Ms Bui wished to rely, did not address that issue and no claim was made that such an issue arose until during the final submissions of Mr Bui. Further, the Tribunal, in dissuading Ms Bui from calling medical evidence to support a claim which she may have sought to advance in respect of the alleged aggravation of her condition of 8 May 2006 did not deny her procedural fairness. The first reason for that view is that no such claim had been made at the time such dissuasion occurred. The second is that no practical injustice arose because the medical reports which were intended to be relied on by Ms Bui did not address the 8 May 2006 aggravation issue. 38 For the above reasons, the Court is not satisfied that the Tribunal erred in law in affirming the decisions before it in respect of Ms Bui. The application before the Court is dismissed, with costs. 39 The Court thanks Mr Friend for his appearance in acting pro-bono for Ms Bui in accordance with O 80. Such assistance is critical to the development and enhancement of access to justice in the community. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.