Mr Dunstan (Mr D) worked for various Commonwealth agencies, including the Australian Taxation Office (ATO), between 1975 and 2001. In 1982, Mr D met Ms X and later that year became her supervisor. They developed a friendship. In 1987 Mr D joined the ATO and continued to see Ms X. Though Mr D was married his relationship with Ms X eventually became intimate. Ms X then transferred to the ATO in 1990 and by that time she and Mr D had been in a sexual relationship for 12 months.

The relationship continued but became difficult and Mr D struggled to cope. His GP referred him to a psychiatrist, who described him as profoundly depressed. Mr D attempted suicide in 1992 and his wife found out about the affair. Mr D and Ms X agreed that Ms X would request an immediate transfer from the ATO to another department.

After Ms X moved, Mr D still feared he would run into her. Subsequently, Ms X lodged a grievance complaint against Mr D and Mr D lodged compensation claims for the stress he said resulted from the relationship along with various grievances and other proceedings against his employer and individual staff members over various issues. Then, in 1999, Mr D was convicted of offences for accessing restricted ATO information and was imprisoned until January 2008. During that period, in May 2001, his employment was terminated for the conduct that lead to his charges and conviction.

In Dunstan and Comcare [2012] AATA 567, the Tribunal, comprised of Deputy President Forgie and member Dr Hughson, had to decide, amongst other things, whether Mr D had suffered an injury that entitled him to compensation. Under section 4(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), an injury includes a disease, and a disease means an ailment or aggravation “that was contributed to in a material degree” by employment. Section 23 of the SRC Act provides that compensation is not payable in respect of any period during which the employee is imprisoned, so the periods in which Mr D could claim an employment related injury were limited in that regard.

The Tribunal found that Mr D was suffering from depression. As to whether the depression was contributed to in a material degree by his employment, the Tribunal noted there was no doubt the relationship between Mr D and Ms X was established long before she was transferred to the ATO. The Tribunal found that Mr D’s employment had nothing to do with his commencing the relationship with Ms X or with his continuing the relationship. What had changed was Mr D’s ability to cope towards the end of 1990 when he became depressed.

The Tribunal considered that employment was, however, a contributing factor – not because of anything that the ATO did but because it “provided the opportunity for Ms X’s presence” at Mr D’s place of work. She was a presence in his life during his working hours so she could engage in, from Mr D’s point of view, “demanding, belligerent and sexually provocative behaviour”. The Tribunal found that “it” – presumably, the offending behaviour of Ms X – “was part of the conditions in which Mr Dunstan worked”.

The Tribunal noted that this was not what the ATO had intended and had Mr D told his supervisors about the relationship then the ATO would have taken steps to minimise their contact. Unfortunately the absence of any opportunities for the ATO to take preventative steps does not determine the degree of contribution by employment. In view of the greater contact between Ms X and Mr D “unwittingly” provided by the ATO and given Mr D was managing the relationship and not suffering ill effects prior to that time, the Tribunal concluded that Mr D’s depression was contributed to in a material degree by his employment with the ATO.

The reliance of the Tribunal only on a connection to the conditions in which Mr D worked is a movement beyond previous statements by the courts. Dixon J in Humphrey Earl v Speechley (1951) put the test for course of employment as a workman “doing something he was reasonably required, expected or authorised to in order to carry out his duties”. Windeyer J in Federal Broom Company v Semlitch (1964) considered the contributing factor must be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. Though the reference to the conditions of work echoes to the Tribunal’s reference in Mr D’s case, Windeyer J actually tied the conditions to some characteristic of the work performed. In Mr D’s case, the Tribunal did not do so, noting only that the behaviour of Ms X, which is clearly not part of the work performed by Mr D, was part of the conditions in which he worked.

The decision of the Tribunal has not been appealed.