Martincevic v Commonwealth of Australia

CIRCUMSTANCES RELEVANT TO THE TERMINATION DECISION 3 For present purposes, it suffices to say that the appellant's problems with 7 CSSB began not long after his posting there and continued to the termination decision. He brought complaints of bullying and bastardisation in respect of his treatment by 7 CSSB. He was punished a number of times whilst with 7 CSSB for disciplinary infringements. He was also the subject of various unsuccessful attempts to discharge him on medical grounds prior to the termination decision in question here. 4 The appellant's history with 7 CSSB included two occasions when he was admitted to hospital (2 Health Support Battalion) for depression, one in March 2005 and another in March 2006. On the first occasion, a specialist psychiatrist, Dr J N Chalk, said that the appellant's mental health did not give rise to grounds for termination of his service with the ADF. After the second occasion, Dr Chalk kept the appellant under review, seeing him on about a fortnightly basis. About 6 April 2006, the ADF asked Dr Chalk to provide an opinion concerning the appellant's fitness for duty and medical class. Dr Chalk gave oral advice that the appellant was suffering from "asituation crisis with avoidance personality traits", and that he considered the appellant to be MEC 403. The classification MEC 403 indicates personnel who are considered not employable or deployable in the Army. Also about 6 April 2006, the appellant received a termination notice, although this is not the notice that preceded the termination decision in question in this proceeding. 5 In early April 2006, the appellant also made a complaint to the Chief of the Defence Force ('CDF') about his treatment with 7 CSSB. He alleged that he was the victim of bullying and bastardisation, which had had an adverse psychological effect on him. On 7 May 2006, Lieutenant Colonel Thomae was appointed to investigate the complaint. At the time the learned primary judge heard the matter and delivered judgment, the appellant did not know whether Lieutenant Colonel Thomae had concluded his investigation and made his report. I interpolate here that the appellant asked the Court to receive further evidence on the hearing of the appeal, which showed that Lieutenant Colonel Thomae had completed a report on 23 June 2006. This report is important for the disposition of this appeal. 6 On 11 April 2006, the appellant was notified that he had been classified MEC 403 and would be medically reviewed for discharge. Subsequently his Commanding Officer, Lieutenant Colonel Whitting, signed a "Workplace Disability Report" concerning his deployability. In this report, Lieutenant Colonel Whitting stated that he concurred: … with the medical opinion regarding the necessity to medically downgrade PTE Martincevic. His continual threats of self-harm and very poor work performance render this member as unsuitable for continued service as a result of an inability to deploy him on operations for fear of his reactions under stress and his continual predilection for making threats of self-harm. 7 On 5 May 2006, the appellant wrote to the Medical Board in Canberra seeking an independent medical assessment and requesting that action on his MEC 403 classification be held in abeyance pending this assessment. Amongst other matters, he also advised that he had applied "for funding for an independent psychiatric assessment". 8 On 16 May 2006, a Medical Employment Classification Review Board ('MECRB') undertook a review of the appellant's reclassification to MEC 403. A medical consultant from the Joint Health Support Agency ("JHSA") reported: This is not a simple picture of a medical condition but a complex presentation with interacting factors. This soldier and his family have a high requirement for support which unfortunately is demonstrably incompatible with his military life. The member's personality and behaviour have exacerbated his situation and have deteriorated in response to the stress. The President of the MECRB found that: Pte Martincevic has a condition that has not improved upon posting to BNE. He continually presents with claims of self-harm and thoughts of suicidal ideation. He is high maintenance and has demonstrated a personality that is incompatible with service employment and he is definitely not deployable. I determine P8S8 MEC 403. I find that there is sufficient evidence that the member is non-deployable in the long term and therefore I am bound to issue the member with a TN pursuant to DPR 87 (1)(c) "Medically Unfit". At the time he made the termination decision, Lieutenant Colonel Egan was aware of the MECRB record, which included the JHSA opinion and the President's findings. 9 On 23 May 2006, Major Le Lievre, of the Soldier Career Management Agency ('SCMA') and acting as a delegate of Chief of Army, issued a termination notice to the appellant under reg 87(2) of the Defence (Personnel) Regulations 2002 (Cth) ('Personnel Regulations'). The appellant received the notice the next day. The termination notice informed him that the reason for his proposed termination was that he was "medically unfit", within the meaning of reg 87(1)(c) of the Personnel Regulations. Relevantly it also invited him to give, within 28 days of receipt of the termination notice, a written statement of reasons as to why his service should not be terminated. On 26 May 2006, he gave notice to SCMA that he intended to provide a statement of reasons in opposition to his discharge. He provided his statement of reasons on 22 June 2006, which was within the relevant 28-day period. 10 In the meantime, on 14 June 2006, the appellant lodged an application with his Commanding Officer for Redress of Grievance, which sought to have the decision to issue the termination notice set aside or delayed until the investigation being conducted by Lieutenant Colonel Thomae into his treatment in 7 CSSB was completed. Amongst other things, the appellant stated: …I have been the subject of unlawful harassment and behaviour by members of the ADF. This has led to my being psychologically harmed. Once the harassment ceases and I am posted away from 7 CSSB I will be fit to perform my duties and there will be no need to terminate my services from the ADF. I also say that I requested action with respect to the MECRB determination be suspended pending my obtaining an independent psychiatric report. This request was ignored. I also submit that the MEC process is being improperly used by 7 CSSB as a continuation of the harassment in respect of which I have made complaint to the CDF. 11 On 20 June 2006, the appellant also wrote to SCMA asking that the MECRB decision "be put on hold" pending determination of his Redress of Grievance. Ten days later, however, on 30 June 2006, his Commanding Officer dismissed his Redress of Grievance on the ground that he had submitted no medical evidence that undermined the MECRB's determination. In recording the outcome of the Redress of Grievance, his Commanding Officer, Lieutenant Colonel Whitting, added: Given that a psychiatrist has determined that Pte Martincevic is considered MEC 403 and that this has been confirmed at several subsequent levels by objective medical assessment through the MECRB process, I see no medical grounds as to why the MEC decision should be reversed. 12 In responding to the termination notice on 22 June 2006, by way of a statement of reasons, the appellant concluded with the statement that: This SOR is incomplete and I will deliver the full SOR once all other evidence is on hand. I also request an extension on this till I receive other reports form [sic] health professionals. 13 On 24 June 2006, Major Paul Smith, an Army legal officer acting on the appellant's behalf, informed Major Adamson, an Army legal officer with SCMA, that the appellant had an appointment with a psychiatrist on 28 June 2006. On 26 June 2006, Major Adamson responded to Major Smith in an email, advising that the appellant's statement of reasons had been received; that his appointment was noted; and an extension of time would apparently be granted. Major Adamson also said that: SCMA will formally notify his unit and 2 HSB that it is to be held in abeyance until the report is received. He should advise SCMA and his unit when the report is likely to become available and if he intends to provide any additional Statement of Reasons from addressing the report and any medical issues therein. This is not an indefinite extension so if nothing is heard within 21 days the matter may proceed unless another extension is requested with supporting materials. Later that day, Major Smith acknowledged this advice and confirmed that the appointment was with Dr Chalk on 28 June 2006. In his responsive email, he added: It depends I suppose on how long it will take the Doctor to do his report. As soon as the report is received then we will see where we go from there. 14 In an affidavit tendered at the hearing before the primary judge, Lieutenant Colonel Egan deposed that, around the end of June 2006, he instructed a subordinate officer within SCMA to advise the appellant that he would be granted an extension until 21 July 2006 in which to provide a supplementary statement of reasons along with any further medical evidence supporting his position. It is not said that the appellant was not so advised. 15 The appellant attended an appointment with Dr Chalk on 28 June 2006. Before the appointment, Major Smith had asked Dr Chalk for a report on various matters, including whether the appellant's "treatment in 7 CSSB contributed to his present condition". For reasons that are not germane to this appeal, Dr Chalk did not subsequently provide his report on this consultation to anyone. In the meantime, the appellant's legal advisers changed. 16 On 8 July 2006, the appellant lodged a "Request for Referral of Redress of Grievance to Chief of Army", pursuant to which he sought to have the Chief of Army review his original application for Redress of Grievance, on the ground that his Commanding Officer should not have investigated the grievance since it concerned 7 CSSB. 17 On 18 July 2006, a solicitor acting for the appellant made an appointment with Professor Whiteford, a specialist psychiatrist, for 9 August 2006, for the purpose of obtaining a report on whether the appellant was fit for continued service. 18 The appellant submitted no further medical evidence or supplementary statement of reasons by 21 July 2006. Neither he nor his advisers contacted SCMA to let SCMA know what further arrangements for his medical examination had been made. Lieutenant Colonel Egan deposed that he asked his staff to ascertain what the position was in relation to the foreshadowed report and to make enquiries of Dr Chalk to see whether he had altered his opinion as expressed in April 2006 with respect to the appellant. 19 On 24 July 2006, Captain Tannas Loskill, of 7 CBBS, telephoned the appellant. Captain Loskill's record of her conversation with the appellant relevantly read as follows: PTE Martincevic answered the phone and the ADJT advised him that she was calling as a result of SCMA chasing up his SOR that was due last Friday. PTE Martincevic replied that he had sent the SOR off weeks ago. The ADJT queried if this was the letter requesting an extension because he needed to have an appointment to get medical evidence. PTE Martincevic answered yes. The ADJT advised PTE Martincevic that yes SCMA received this letter, and asked PTE Martincevic 'Didn't CAPT Walter confirm that you have been given an extension until 21 Jul 06 to get that evidence in?' PTE Martincevic replied yes. The ADJT advised that 21 Jul was last Friday and that he had missed his due date. PTE Martincevic said that he had an appointment with the doctor on 9 Aug 06 so he couldn't get anything in until after that. The ADJT asked if this was the same doctor that he referenced in his extension and PTE Martincevic answered yes but he was overseas and the next time he could see him was 9 Aug 06. The ADJT advised that he should have told SCMA before the due date. PTE Martincevic said that 'I better write something up then and fax it off to CAPT Walter', the ADJT advised him that he should telephone CAPT Walter and speak to him in person to explain the circumstances but she didn't like his chances because he didn't contact SCMA before the deadline elapsed and they had already. The ADJT reiterated that PTE Martincevic should contact SCMA straight away to explain his circumstances. 20 Captain Loskill subsequently emailed the record of her conversation to SCMA as well as the following comment: I have briefed my CO and as previously stated the unit strongly recommends against providing the soldier with another extension as the unit feels that both he, with his legal officer are manipulating the system beyond acceptable limits. Lieutenant Colonel Egan deposed that, prior to making the termination decision, he was aware of Captain Loskill's email, although he "did not share the sentiment voiced in the 7th CSSB email as to the alleged 'manipulation' of the 'system'". 21 On 24 July 2006, Captain Walter, who was a member of Lieutenant Colonel Egan's staff at SCMA, received a memorandum from a medical consultant to the Department of Defence, advising that: I have spoken with Dr Chalk today. He continues to recommend that the member is MEC 403 and supports discharge. I also spoke to the GP at 2 HSB, Dr Lee. She is unaware of any other pending specialist referrals/reports. The contents of this email also came to Lieutenant Colonel Egan's attention prior to his making the termination decision. 22 The appellant requested an extension of time by a facsimile letter to SCMA dated 26 July 2006. The substance of the request was: 1. I request an extension as I have an appointment with Professor Harvey Whiteford on the 9th August 2006. This is so that Professor H Whiteford can examine me correctly. 2. Dr J Chalk now states that there is nothing wrong with me. But will not let myself return to work until I provide him with a copy of the investigation report. This is the report that LTCOL Thomae has prepared for the CDF. I have been seeing Dr J Chalk about every two weeks and he is only concerned about this report that LTCOL Thomae has prepared. This is all that is discussed in my meetings with Dr J Chalk and nothing is said about medical issues that might be outstanding. As the primary judge found, this was the first occasion on which the appellant informed the Army that he was to consult Professor Whiteford. Although he did not refer to Professor Whiteford's occupation, in context, given the history set out above, it was clear enough that the reference to Professor Whiteford was likely to be a reference to a specialist psychiatrist. 23 The appellant did not receive a response to his request for an extension before the termination decision was made. Lieutenant Colonel Egan later deposed that, at the time he made the termination decision, he was aware of the request and the fact there had been no response to it. 24 On 8 August 2006, Lieutenant Colonel Egan decided to discharge the appellant, effective on 7 November 2006. He signed a document purporting to be a statement of his reasons for so doing. Amongst other things, he said that he was: … of the opinion that the reason for terminating your service in the Defence Force: a. has been established, and b. has not been affected by a change in circumstances since the termination notice was given to you. Under the heading "Weighting and conclusions drawn from the evidence", he said: 8. In reaching the decision to order your discharge very high weight was afforded to the contents of the TN. The TN proposed that your service should be terminated. 9. Very high weight was afforded to the MECRB determination … which confirmed your medical classification of MEC 403 and that you are not expected to regain fitness for deployment in the long term. 10. Very high weight was afforded to the contents of the JHSA Summary … which determined that your prognosis is that you are likely to continue to struggle with your current circumstances. 11. Very high weight was afforded to the Workplace Disability Report, which stated that you have poor trade skills and an inability to cope with stress. You have little motivation for work and an unwillingness to follow procedure and have difficulty in adjusting to change. You have a history of failing your BFA, require close supervision and considerable financial difficulties. As a result of continual threats of self-harm, your unit has considered you permanently undeployable and in the interests of your safety and the safety of others you are not to carry weapons or attend range practices. 12. The recommendation from your CO that you should be discharged was weighted very high. Your CO reviewed your response and could not find justification to support your retention. 13. Very high weight was afforded to the medical employment policies … which describe the medical employment profile to sustain a deployable profile. 14. Very high weight was afforded to the psychological and psychiatric reports. Your CO initially referred you for assessment after demonstrating difficulty coping with stress and poor interpersonal relations during Exercise Crocodile 1999. On 17 Mar 06 Dr Detering confirmed your diagnosis that you suffered from a mental illness. 15. Initially Dr Chalk noted that there was no clinical diagnosis, however, you have a long history of not coping, integrity issues and marginal work ethics. Dr Chalk did diagnose that you suffer from situational crisis with avoidance personality traits. You have been presenting to Dr Chalk every two weeks and therefore Dr Chalk knows you well to confirm your medical classification of MEC 403. 16. High weight was afforded to your health statement. You state that there are no restrictions that prohibit you from conducting your normal duties and ask to be posted from 7 CSSB where you feel harassed. 17. Low weight was afforded to your response to the TN. In your response you argue that the MECRB process was being improperly used as a continuing harassment by 7 CSSB. I noted that your response was very similar to your ROG. Your response did not contain any new medical evidence and therefore carried little weight. You requested and was [sic] granted an extension to submit new medical evidence but failed to provide any new evidence. Dr Chalk has stated that you asked him to provide additional assessment for [sic] which he did and the diagnosis remained the same, that is, MEC 403. Lieutenant Colonel Egan concluded: I am satisfied on the available evidence that you are unfit for further military service, I am legally bound to terminate your service. I therefore determine you are to be discharged IAW DPR 87(1)(c) 'Medically Unfit' IAW policy provisions and the principles of natural justice [sic]. 25 The termination decision was notified to the Commanding Officer of 7 CSSB the next day, on 9 August 2006. The notification included a direction that the appellant be discharged from the Army under the terms of reg 87(1)(c) of the Personnel Regulations, as 'Medically Unfit'. The appellant was to be informed of the decision and given a copy of the determination. On 17 August 2006, he signed an acknowledgment that he had received Lieutenant Colonel Egan's statement of his reasons for the termination decision. 26 As it happened, also on 9 August 2006, the specialist psychiatrist, Professor Harvey Whiteford, examined the appellant at the appellant's request. Professor Whiteford subsequently prepared a report dated 10 August 2006 in which he gave an opinion supportive of the appellant: see [28] below. 27 In the meantime, on 17 August 2006, the appellant had a conversation with Captain Loskill who, so he says, told him that the Army would not consider Professor Whiteford's report. The appellant deposed that: As a consequence of this conversation I did not at that point think there was much urgency in obtaining the report. I then consulted with my lawyer and was informed of the importance of Professor Whiteford's report. My solicitor at that time … told me that the report would cost $1,045.00. I could not afford the report at that stage as I was paying child support and had many outstanding accounts as well as the cost of day to day living. By the 21st September, 2006 I was able to gather together enough funds to pay for the report … 28 The Army did not receive the report until 2 October 2006, when the appellant received it and faxed it to Major Powers at the Complaints Resolution Agency in Canberra. Amongst other things, Professor Whiteford's report said: 1. At the time I examined Mr Martincevic he did not meet … diagnostic criteria for any mental disorder. 2. I would tend to agree with Dr Chalk that Mr Martincevic does have some dysfunctional ways of dealing with stress. It also appears that he has been in significant conflict in his workplace for the last two and a half years and this, combined with the stress of a relationship breakdown, resulted in his developing some anxiety and depressive symptoms. These symptoms have now resolved. 3. There is no psychiatric reason why Mr Martincevic could not return to his work in the Military. … Lieutenant Colonel Egan received Professor Whiteford's report on 11 October 2006, together with a letter written by the appellant, amongst other things, requesting him to withdraw his letter of termination. 29 On 2 November 2006, the appellant received a minute dated 26 October 2006 from Lieutenant Colonel Egan, in which Lieutenant Colonel Egan declined to alter his decision to terminate the appellant's service with the ADF, and advising that the effective date of termination would be 17 November 2006, rather than 7 November 2006. 30 In response to a letter dated 17 November 2006 addressed to the Minister for Defence, on 20 November 2006, Captain Loskill informed the appellant that Lieutenant Colonel Thomae's investigations into his complaints of bullying were continuing. The accuracy of this statement is doubtful, given that Lieutenant Colonel Thomae had submitted a report some five months earlier. On 23 November 2006, the appellant received a minute dated 8 November 2006 that informed him that these investigations "produced no new recommendations which would cause a change to [his] current discharge procedure".

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