Adams and Comcare (Compensation)
[2016] AATA 275
•29 April 2016
Adams and Comcare (Compensation) [2016] AATA 275 (29 April 2016)
Division
GENERAL DIVISION
File Number
2013/3724
Re
Jenny Adams
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 29 April 2016 Place Sydney The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Senior Member J F Toohey
COMPENSATION
COMPENSATION – adjustment disorder – no dispute that employment contributed to a significant degree – whether compensation excluded because condition was a result of reasonable administrative action in respect of employment – whether taken in a reasonable manner – operative cause – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988
CASES
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16
Comcare v Martinez (No. 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21Drenth v Comcare (2012) 128 ALD 1
Hart v Comcare [2005] FCAFC 16
Keen v Workers Rehabilitation and Compensation Commission (1998) 71 SASR 42
Martin v Comcare [2015] FCAFC 169
Pettiford and Comcare [2014] AATA 95Wiegand v Comcare (No 2) [2007] FCA 237
REASONS FOR DECISION
Senior Member J F Toohey
29 April 2016
BACKGROUND
This matter concerns an application by Jenny Adams, a former employee of the Australian Taxation Office (ATO), for compensation for an adjustment reaction with mixed emotional features suffered as a result of events that occurred at work on 25 August 2011.
By s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act), Comcare is liable to compensate an employee for an injury that results in incapacity, impairment or death. Comcare accepts that Ms Adams suffers from an adjustment reaction with mixed emotional features and that her condition is an ailment within the meaning of the SRC Act. Comcare accepts that her employment contributed, to a significant degree, to her condition.
It is common ground that, if that were the end of the matter, Ms Adams would have a compensable injury within the meaning of s 5B of the SRC Act. Comcare maintains, however, that Ms Adams’ ailment is the result of reasonable administrative action taken in a reasonable manner in respect of her employment and is therefore not a compensable injury within the meaning of the SRC Act.
Section 5A of the SRC Act provides that injury for the purpose of the SRC Act means:
(1) (a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
For the purposes of subsection (1), subsection 5A(2) provides that reasonable administrative action includes, but is not limited to:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
ISSUE AND CONTENTIONS
In her claim for compensation lodged on 6 March 2012, Ms Adams stated that she suffered anxiety and work related stress as a result of her manager’s action on 25 August 2011 in rejecting her claim for sick leave and “charging” her for unauthorised absence, and in leaving a formal direction on her desk without providing her with “a property [sic] notice to have a meeting to discuss it”. (I take this to mean “a proper notice”).
Comcare contends that both actions, whether considered as one action or separate actions, constituted reasonable administrative action taken in a reasonable manner in respect of Ms Adams’ employment.
Comcare further contends that actions in the preceding months which Ms Adams claims amounted to workplace bullying and harassment contributed to her condition. Comcare contends that those actions are also properly characterised as reasonable administrative action taken in a reasonable manner in respect of Ms Adams’ employment and that her claim must fail for that reason as well.
It is not in dispute that the actions in question were administrative action taken in respect of Ms Adams’ employment. It is not in dispute that her employment contributed, to a significant degree, to her adjustment reaction, although there is dispute as to the contribution of particular actions.
Ms Adams submits that the evidence does not establish that her condition “rose to clinical significance” in the months leading up to August 2011 and says the necessary causal connection to her employment is not made out. She contends that none of the actions on which Comcare relies constituted reasonable administrative action, and in any event, that none was taken in a reasonable manner.
INFORMATION BEFORE THE TRIBUNAL
Ms Adams has submitted documents including written statements giving her account of events, her comments on medical reports and matters raised by her managers and supervisors, and a report from her treating psychiatrist. She gave oral evidence before the Tribunal.
Ms Adams has also submitted written statements from fellow employees, Stefan Hassett and James Morris, neither of whom was required for cross-examination. Both statements are supportive of Ms Adams in general terms but do not assist me to determine the matters presently in dispute. Accordingly, I have not considered them further.
In accordance with s 37 of the Administrative Appeals Tribunal Act 1975, Comcare has provided the Tribunal with documents including medical reports and certificates, and extensive email correspondence between Ms Adams and her managers and supervisors.
Copies of ATO documents Corporate Management Procedures and Instructions and Practice Statements – Managing Illness and Injury in the Workplace, the General Employees Agreement 2009 and Employment of People with Disability in the APS are also before the Tribunal.
Janice Michel, who was Ms Adams’ supervisor from December 2010, provided a written statement and gave oral evidence. Sandra Halliwell, Ms Adams’ supervisor from February 2009 to July 2010, provided a written statement of evidence but was not required for cross-examination.
Dr Michael Hong, a consultant psychiatrist who assessed Ms Adams for the purposes of these proceedings and prepared a written report, gave oral evidence by telephone.
SUMMARY OF DECISION
For the reasons that follow, I am satisfied that the administrative action taken by Ms Michel on 25 August 2011 in refusing Ms Adams’ claim for sick leave, and in giving her a formal direction, was reasonable administrative action taken in a reasonable manner in respect of her employment. Whether considered as comprising a single administrative action or two separate actions, they were reasonable administrative action taken in a reasonable manner in respect of her employment. It follows that Ms Adams’ adjustment disorder is not an injury within the meaning of the SRC Act and her claim must fail.
There was argument as to: whether all or any of the events in the months leading up to 25 August 2011 contributed to Ms Adam’s adjustment disorder; whether an “operative cause” is sufficient or a “significant contribution” is necessary for the purposes of the exclusion; and whether those actions met the exclusionary provision. Given my conclusion that what occurred on 25 August 2011 comes within the exclusion, it is not strictly necessary to determine those questions in relation to the preceding events. However, they are relevant insofar as they form the background and context in which the administrative action on that date was taken, and so I have considered those matters as well.
Ms Adams’ employment with the ATO
Ms Adams commenced employment as a full-time APS Level 4 Compliance Officer with the ATO in February 2008, in a team known at the time as Active Compliance, Micro Enterprises and Individuals Rental Team. She completed her probation period in about May 2008. Sometime in 2010 she moved to the High Income Individuals Team which conducts audits of individuals whose remuneration exceeds $500,000 per annum.
The following paragraphs detail the evidence concerning events leading up to and on, 25 August 2011. For the most part, there is no dispute about the facts.
February 2008 to July 2010
From February 2008 to June 2010, Ms Halliwell was the Team Leader and Ms Adams’ supervisor. According to Ms Halliwell’s statement, the team’s work changes according to ATO priorities but is broadly described as “compliance auditing with a component of education and other audit-related work”.
According to Ms Halliwell’s statement, each team has a Team Technical Adviser (TTA) responsible for technical leadership and advice to team members on matters such as completing case work, ensuring decisions comply with tax law and ATO policy, and providing “technical skilling”. Team members are not bound to follow the advice of the TTA but their expertise means their views carry “a lot of weight”.
Ms Halliwell states that she became “troubled” by Ms Adams’ performance shortly after the end of her probation period. In particular, Ms Adams “received direction poorly” and her “most likely” response to guidance or instruction was to challenge the advice or find reason it should not be followed; she “shopped around” for advice rather than engage in discussion, resulting in unacceptable delays in her audits; and there were complaints about the manner in which she dealt with a tax agent and a tax payer.
According to Ms Halliwell’s statement, Ms Adams’ attendance was “unpredictable”, although Ms Halliwell acknowledged that some of her lengthy absences were because her mother, who lived in China, was unwell and Ms Adams “had some responsibility for her care”. As a result, however, she was not as familiar as she was expected to be with the work of the team. To help Ms Adams, Ms Halliwell arranged for her to have access to a mentor and a TTA within the team, and to various “training modules” which could be undertaken online or in a classroom.
Ms Halliwell states that she raised her concerns with Ms Adams on a number of occasions from around September 2008. By around October 2008, it was “not uncommon” for them to have a meeting in the company of Ms Halliwell’s supervisor, or the TTA who acted as a witness; by December 2008, her discussions with Ms Adams regarding her performance became more formal. At a meeting in April 2009, she raised her concerns about Ms Adams’ ability to follow directions, the accuracy of her leave records, and her “shopping around” for TTA advice. According to Ms Halliwell, Ms Adams did not accept her views and refused to complete a Professional Development Agreement.
In May 2009, Ms Adams’ supervisor at the time requested that she attend a “fitness to work” assessment, after Ms Adams had claimed she could not “work too hard” because of an unspecified “medical situation”. The assessment was deferred, and then cancelled and rescheduled several times, when Ms Adams took two periods of extended leave to visit her mother in China and when she sought review of the requirement that she undergo the assessment.
The assessment eventually took place on 18 June 2010 when Dr Nicholas Jetnikoff, a consultant psychiatrist, saw Ms Adams and provided a written report of his assessment. He saw Ms Adams again for assessment on 29 July 2011. His reports are considered below.
Ms Halliwell states that, ultimately, she did not pursue a formal performance management process with Ms Adams because of her absences, her refusal to attend the fitness for work assessment and because she left the team herself in July 2010. An acting supervisor was in the position until December 2010 when Ms Michel became Ms Adams’ Team Leader.
December 2010 to February 2011
In December 2010, Ms Michel assumed the position of Team Leader of the High Income Individuals team. She gave evidence, which I understand Ms Adams does not dispute, that audits are conducted according to “performance benchmarks” and must be done as quickly and efficiently as possible.
When Ms Michel became Team Leader, Ms Adams had been in the team for approximately 12 months and had been approved to work part-time, for 28 hours a week, to accommodate some “family issues”. Ms Michel understood that the expectation was that Ms Adams would make arrangements so that she could return to full-time hours within a reasonable time.
By mid-January 2011, Ms Michel says, she had identified “some performance issues” with Ms Adams. By 9 February 2011, she had instituted fortnightly “case call-over meetings” between Ms Adams, the TTA and herself. Their purpose was to discuss deadlines relating to Ms Adams’ cases. After the meetings, Ms Michel would follow up with an email setting out what tasks needed to be completed on each matter by specified dates.
Around this time, Ms Adams had a number of periods of planned and unplanned leave. Ms Michel denies being unhappy about how much leave she took but acknowledges that it put pressure on other team members and required additional time to manage the work of the team.
March to April 2011
By March 2011, Ms Michel was having regular face-to-face meetings and email exchanges with Ms Adams about her performance, in particular the timeliness of completing her case work. According to Ms Michel, Ms Adams was reluctant to accept “technical direction” and frequently argued with the TTA. As a result, she began to take a “more rigorous approach” to Ms Adams’ requests for leave because her absence was perceived as being “the key interference to her improvement”.
By the end of March 2011, Ms Michel decided an informal performance management process involving a written Performance Improvement Plan (PIP) for a 12 week-period was needed in order to identify Ms Adams’ training needs and improve her performance.
At a meeting on 30 March 2011, Ms Adams refused to have the PIP implemented. She did not accept that her work was unsatisfactory and maintained she had not been given sufficient training. Giving evidence, Ms Michel acknowledged that Ms Adams’ extended absences meant she was less familiar than others with aspects of the work, and she arranged for various forms of online and class-room training to help Ms Adams improve. Ms Adams continued to attend “case call-over meetings” to discuss progress of her case work but her attendance at meetings was limited because of her extended leave.
During March 2011, Ms Adams was absent for one day, citing workplace stress. A second “fitness for work”, or Occupational Health Assessment (OHA), was arranged for May 2011. Dr Jetnikoff carried out the OHA on 29 July 2011.
May 2011
On 9 May 2011, Ms Adams asked Ms Michel for four weeks leave from 1 July 2011 in order to go to China. Ms Michel said she would consider her request. The following day, Ms Adams asked for five weeks leave for the same purpose. Ms Michel says she was hesitant about approving leave for reasons including that the OHA had not yet been done.
On 16 May 2011, when Ms Adams asked again about her leave, Ms Michel expressed reservations about approving leave when she had just had additional training. They had a further, similar conversation on 18 May 2011 when Ms Michel said she had to take into account the “operational requirements” of the section and she was also concerned Ms Adams would have no leave entitlements left. After Ms Michel left for the day, Ms Adams submitted an electronic request seeking three forms of leave.
On 20 May 2011, Ms Adams approached Ms Michel again. They had another conversation along the same lines and Ms Michel said she wanted to see the OHA report before deciding about her leave request. As it happened, it was received the same day.
On 26 May 2011, Ms Michel sent an email to Ms Adams asking her to attend a meeting on 30 May 2011 to discuss her performance. Ms Adams replied that she would not have enough time to arrange a union representative to attend the meeting. Ms Michel told her she could make the arrangements the following day. Shortly after this, Ms Adams sent an email to the section director, John Mellifont, referring to her leave request and saying she needed “a break now” and had not seen her family since May 2010. She suggested the PIP process could commence when she returned.
On 30 May 2011, Ms Adams told Ms Michel she had been unable to arrange a union representative for the meeting that day but the representative she wanted would be available in the following week. Ms Michel agreed to postpone the meeting until the afternoon of 31 May 2011 and said Ms Adams was welcome to organise another representative if the one of her choice was not available, but the meeting would go ahead as scheduled.
On 31 May 2011, before the scheduled meeting, Mr Mellifont sent an email to Ms Adams stating that, if the outcome of the meeting was that a PIP or other performance measure was to be implemented, it was not likely that her leave would be approved, but she should await the outcome of the meeting at which leave would be discussed. On the same morning, Ms Adams contacted Ms Michel to say she was not well and would not be attending work that day.
1 June 2011
On 1 June 2011, Ms Michel sought advice from the Health and People Management Branch of the ATO about how to proceed. Their advice was that it was fair to organise another meeting with Ms Adams for that afternoon. Ms Michel sent Ms Adams and Mr Mellifont a “calendar invite” by email and put a note on Ms Adams’ keyboard so that she would know when she arrived at work at 2.30pm, as scheduled, that she had an urgent email invitation.
At the appointed time, Ms Michel and Mr Mellifont went to the meeting room. Ms Adams refused to join them saying she could not attend because she had not organised a union representative. After some heated discussion, Mr Mellifont directed Ms Adams to attend the meeting and told her that refusal would be “a Code of Conduct issue”. Ms Adams refused to attend and maintained that he had not issued her with a written direction; she then walked away. Giving evidence, Ms Adams acknowledged that she refused to attend the meeting. She denied, and then could not recall, Mr Mellifont directing her to attend, and she could not recall saying he needed to put any direction in writing. She said she walked away because she needed to find a union representative who could attend the meeting with her.
Ms Michel was preparing to send Ms Adams an email invitation to a rescheduled meeting the following day when she received an email from Ms Adams to say she had just learned that her mother had suffered a “heart attack and high blood pressure [and was] in a life-threatening situation”. The email stated that the treating doctor wanted Ms Adams to return to China immediately to look after her mother. She attached a document, written in what Ms Michel took to be Chinese, which appeared to be a medical certificate for three months from 31 May 2011. Ms Michel asked Ms Adams to provide a translation so that her leave request could be considered.
Ms Adam’s refusal to attend the meeting on 1 June 2011 led to a “Notice of Suspected Breach of the APS Code of Conduct” being issued on 1 July 2011. It was withdrawn by letter sent to Ms Adams in China on 2 August 2011 which stated there was insufficient information for the matter to proceed to investigation but sufficient information for her to be “formally counselled” about the incident.
Meeting on 2 June 2011
On 2 June 2011, Ms Adams sent a further email to Ms Michel saying she needed to take leave immediately and wanted to book her airline ticket that day. Ms Michel sought advice about how to respond and decided she would discuss the matter with Ms Adams at their scheduled meeting.
The meeting went ahead on 2 June 2011 with one union representative present in person and another by telephone. The outcome was that Ms Adams was offered four weeks leave from Monday 6 June 2011 on the basis that she provide her address in China and a telephone contact number, and a translation of the medical certificate. She was advised that any request for an extension of leave had to be received at least one week before her scheduled return to work and, if not approved, she was expected to attend for work, as usual, on 4 July 2011; if she failed to return to work, the absence would be deemed unauthorised absence in accordance with the General Employees Agency Agreement. Ms Michel confirmed this arrangement by email.
Ms Adams did not take leave on 6 June 2011. On 4 June 2011, she requested four weeks leave commencing 10 June 2011. Mr Mellifont advised by email that her request would not be approved. He suggested two options: either her leave not be approved because it no longer appeared urgent that she go to China to attend to her mother who was being cared for in a medical facility; alternatively, leave would be approved from 10 June 2011, or an earlier date, but the end date would remain 1 July 2011 and Ms Adams would be required to return to work on 4 July 2011. He asked for Ms Adams’ reply by midday on 8 June 2011, failing which her leave request would be refused.
Despite the apparent urgency of her mother’s condition, Ms Adams remained at work until 23 June 2011. According Ms Michel, Ms Adams spent much of her time responding to the Code of Conduct matter arising out of events on 1 June 2011. During this time, Ms Adams sent a number of emails to Ms Michel and Mr Mellifont stating why she could not supply a contact number in China. She indicated several times that she would be leaving soon to go to China to look after her mother and she was organising to travel on 11 July 2011.
Between 27 June 2011 and 14 July 2011, Ms Adams attended work as normal. She was then absent for two weeks, citing illness, for most of which she supplied a medical certificate. On 13 July 2011, Ms Michel approved leave from 1 August 2011 to 22 August 2011 inclusive, made up of purchased leave, paid annual leave and a public holiday. On the same day, Ms Adams said she had to have blood tests and had to change her flight booked for 14 July 2011.
Written direction issued 7 July 2011
On 7 July 2011, Ms Michel issued Ms Adams with a formal written direction requiring her to work her standard part-time hours up until 30 September 2011 after which she was to work standard full-time hours. Ms Adams standard part-time hours were from noon on Mondays, Tuesdays and Thursdays. It further directed her to leave the office within 10 minutes of finishing her work for the day and, in any event to have left by 7pm.
The effect of Ms Michel’s direction concerning Ms Adams’ standard hours was to withdraw her access to flextime hours.
Ms Adams maintains this direction was unreasonable, if not unlawful, and to the extent that Ms Michel’s action on 25 August 2011 related to it, her action was not reasonable. The direction is considered further below.
August 2011
On 1 August 2011, while she was on approved leave, Ms Adams attended work and went to log on to her computer. Mr Mellifont spoke to her, reminded her she was on leave and asked her to leave the office at which point Ms Adams asked for her leave to be cancelled. Computer records show that she did not leave when asked to do so and that she accessed a computer later that day. No particular significance attaches to this other than to illustrate Ms Adams’ disinclination to follow instructions and raise questions about her need for leave.
Ms Adams left to travel overseas at some point after 1 August 2011. When she did, she had leave approved up to, and including, 22 August 2011. On 18 August 2011, she sent an email to Ms Michel seeking approval to extend her leave until 16 September 2011 on account of her mother’s illness. She provided medical a certificate in Chinese with her own translation.
As Ms Michel was away, Mr Mellifont replied. He advised Ms Adams that she was required to provide at least a week’s notice of such request and that she had not provided a professional translation of the medical certificate. He said he required additional information in order to make a decision and that, unless the extension was granted, she would be required to return to work on 23 August 2011 failing which she would be considered to be on unauthorised leave.
In her reply, Ms Adams stated that no one had told her about the need to give one week’s notice of a request for an extension and “there is no such policy in the ATO”, and she was unable to provide the information from her mother’s doctors requested by Mr Mellifont. He replied to the effect that her request to extend her leave was denied and she was expected back at work on 23 August 2011 failing which she would be considered on unauthorised leave. He attached three emails sent to her which referred to the requirement to give a week’s notice of a request for an extension. Ms Adams asked him to reconsider. It appears that she telephoned him about this and he confirmed that her request was denied.
On 22 August 2011, Ms Adams sent an email to Jeff Lapidos, an officer of the Australian Services Union Taxation Officers Branch (ASU), stating that her mother was “in a critical condition and maybe life threatening condition” and asking for his assistance. Mr Lapidos sent an email to Mr Mellifont advising that the ASU acted for Ms Adams and she was seeking “personal leave – carers, without pay” from 23 August 2011 to 16 September 2011 and she would “return to work on Monday 19 September 2011”. Mr Mellifont replied by email to Ms Adams, copied to Mr Lapidos, restating his request for further medical information concerning her mother.
On 23 August 2011, Mr Lapidos sent an email to Mr Mellifont stating that Ms Adams had “just arrived back” from China and was requesting miscellaneous leave without pay for 23 and 24 August 2011 “to assist her recover from jet lag and get her life together after being away”; she expected to return to work “on Thursday [25 August] if necessary”. He said she would also like to take an additional day of miscellaneous leave without pay “to help her recover further”, in which case she would return to work on Monday 29 August 2011. Mr Lapidos said this would be “best for” Ms Adams as she would “then be as refreshed as could reasonably be expected and her local management will have a better opportunity to prepare for her return to duty”.
Mr Mellifont replied that he would approve two additional days of miscellaneous leave with pay but he would not approve what would be, in effect, an additional four days leave.
On the same day, Ms Adams sent an email to Ms Michel asking for leave without pay from 23 August 2011 to 26 August 2011 because she “needed to be refreshed”. The email also stated that she needed to wait and see if she had “recovered from long distance travel on 25 August” and she would keep Ms Michel “updated”. Ms Michel responded along the same lines as Mr Mellifont, stating that Ms Adams was expected back at work on 25 August 2011.
25 August 2011
According to Ms Adams’ claim for compensation, there were two relevant actions on this day. The first was Ms Michel’s refusal to approve her request for sick leave. The second occurred the short time later when Ms Michel asked to speak to Ms Adams. With one or two exceptions, there is no dispute as to the facts and no dispute that what happened caused Ms Adams to suffer an adjustment reaction.
Refusal of Ms Adams’ request for sick leave
Ms Adams was due to start work at 12.00pm on 25 August 2011. At 11.29am, Ms Michel received the following email:
Hi Jan
I still feel very tired now after the long distance to, especially it was a overnight flight from China to Australia, which I was unable to sleep on the flight. In order to help me to recover from the long distance and come back to work with energy, I need to take Purchase Leave or Miscellaneous Leave without pay for 25 and 26 August and will come back to work on Monday 29 August. Could you please let me know if you would approve my leave application or not ASAP.
At 11.42am, Ms Michel replied to say that Ms Adams’ request for a further two days leave was denied and, should she not attend at 12 noon, she would be on unauthorised leave.
At 11.59am, Ms Adams wrote:
Hi Jan,
I will be around 10 means late to work as I feel not well at the moment.
Ms Adams arrived at work at 12.25pm. A short time later, she applied for sick leave for the period 12.00pm to 12.25pm. Ms Michel refused her request and decided that, in the circumstances, it was appropriate and necessary to record her absence as unauthorised.
Request to speak to Ms Adams in a private room
Ms Adams claims that, when she tried to explain to Ms Michel that it would be inappropriate to deny her request for sick leave, Ms Michel responded with words to the effect that she was the manager and could do whatever she wanted to do. Ms Michel strenuously denies ever speaking to Ms Adams or any member of staff in this way. I accept her evidence about this.
At 12.57pm, Ms Michel approached Ms Adams at her desk and said words to the effect that she needed to see her in a private room. When Ms Adams replied “no”, Ms Michel said that, if she would not go to a room with her, she needed to give her “these papers”. She put on Ms Adams’ desk papers related to “End of Year Performance Development Discussions” and the PIP she had been attempting to implement for some time. The papers also included a written direction to attend a meeting to discuss these issues on 29 August 2011, and a formal warning that, if Ms Adams failed to comply, immediate consideration would be given to some form of disciplinary action as set out in the formal warning. Ms Michel left the papers on Ms Adams’ desk. Ms Adams walked away.
A short time later, Ms Michel sent a lengthy email to Ms Adams headed “Rejection of Sick Leave Application in ESS” stating that she wanted to further explain her reasons for rejecting Ms Adams’ application for leave that day. She set out the history of their emails over previous days and stated: “I would expect if you were feeling unwell that you would have stated that in your initial email and you have had since Tuesday morning to go to the doctor for ill health”.
Approximately 10 minutes later, Ms Adams emailed Ms Michel to say that the decision to reject her request for sick leave had given her a headache and made her dizzy and nauseous, and she had to leave to see her doctor. The following day, she sent an email to say she was ill and could not attend work. She did not return to work until February 2012. When she did, she was redeployed to another team. She ceased working for the ATO in about December 2012.
WAS THE ACTION ON 25 AUGUST 2011 REASONABLE ADMINISTRATIVE ACTION
I am satisfied that recording Ms Adams’ absence on 25 August 2011 as unauthorised was action in connection with her failure to obtain, or retain, a benefit within the meaning of s 5A(2)(f), namely access to paid or unpaid sick leave or other forms of leave.
I am satisfied that the request to see Ms Adams in a private room for the purpose of talking to her and giving her papers described above was done in connection with both a counselling action and a disciplinary action in respect of her employment, within the meaning of s 5A(2)(e).
For the reasons that follow, I am satisfied that both were reasonable administrative action in the circumstances.
Unauthorised leave
Ms Adams submits that it was not reasonable for Ms Michel to refuse her application for sick leave because she had advised Ms Michel that she was unwell. She contends that, even if Ms Michel would not approve paid sick leave, she was entitled to unpaid sick leave. Further, she submits it was unreasonable because the consequences for an employee of the serious long-term consequences of being on unauthorised leave, and the serious long-term consequences for her psychologically in that she has had obsessive thoughts about it ever since.
Contrary to Ms Adams’ assertion, employees do not have an entitlement to unpaid sick leave. The ATO (General Employees) Agreement 2009 (the Agency Agreement) shows clearly that unpaid sick leave is discretionary. Clause 84.11 provides:
Where an employee has exhausted paid Personal Leave credits or is not entitled to paid Personal Leave – Sick, the employee may be granted unpaid Personal Leave – Sick (emphasis added).
Giving evidence before the Tribunal, Ms Michel acknowledged that she had determined on 25 August 2011 not to approve any further leave and did not consult with Ms Adams before making her decision. She acknowledged the serious consequences for an employee of being on unauthorised leave, although she would not go so far as to say her decision had “significant” consequences for Ms Adams’ employment.
Considered on its own, Ms Michel’s concession that she has determined not to approve any further extension might suggest a failure to consider Ms Adams’ request fairly. However, considered in context of what had happened in the period leading up to 25 August 2011, and on that morning, Ms Michel’s scepticism about Ms Adams’ claim to be unwell was, in my view, entirely reasonable. Ms Adams had indicated over the previous days only that she needed time to recover from jetlag. Moreover, her email at 11.59am indicated she was on her way to work and would be 10 minutes late; it did suggest that she could not work. Having allowed Ms Adams an additional two days in which to recover from jetlag, it was reasonable for Ms Michel to conclude that she was not sick and there was no basis for approving sick leave for those 25 minutes.
Ms Adams had been put on notice by emails from Ms Michel and Mr Mellifont that failure to attend work at the appointed time on 25 August 2011 would lead to her absence being authorised. She had a history of claiming to be unwell at times when her performance was under challenge and she did not leave for China until some weeks after claiming her mother was in a life-threatening situation. It was reasonable for Ms Michel to “draw the line” and act in accordance with the notice given to Ms Adams.
Request to talk in a private room
There is no doubt that Ms Adams was a difficult employee to manage. Ms Michel acknowledged the pressure that managing her put on her but that does not, in my view, detract from the reasonableness of her actions on 25 August 2011. I accept her evidence that Ms Adams’ performance, including her attendance, was creating difficulties for her own work and for the team. I do not accept Ms Adams’ claim that she was “still in training”, and I accept that she had been provided with additional training opportunities to make up for her (approved) absences.
Ms Michel had been unable to effect any improvement in Ms Adams’ performance, or even put a plan for improvement in place. It was reasonable for her to discuss this matter with her. Her request to do so, and to give the papers to Ms Adams when she refused, was reasonable administrative action in the circumstances.
There is nothing inherently unreasonable in a supervisor asking to speak in private with an employee for the purpose of discussing performance or, indeed, any other matter. Ms Michel had been attempting to implement a PIP for some months in the face of Ms Adams’ continuing resistance. She had refused in March 2011 to have the PIP implemented and she had refused to attend a meeting on 1 June 2011 to discuss her performance.
Was the action taken in a reasonable manner?
Whether administrative action was taken in a reasonable manner will depend on the administrative action itself, the facts and circumstances giving rise to the need (or perceived need) for the action, the way in which it affects the worker, the circumstances in which it was implemented and any other matters that may be relevant: Keen v Workers Rehabilitation and Compensation Commission (1998) 71 SASR 42, 47-48; Comcare v Martinez (No 2) (2013) 212 FCR 272.
Guidelines for conduct in similar circumstances may be relevant to understanding whether action was undertaken in a reasonable manner but they should not distract from the real question in s 5A, namely whether the action was reasonable administrative action taken in a reasonable manner: Martin v Comcare [2015] FCAFC 169, 135; Comcare v Martinez (No 2) (above).
The fact that action might have been conducted differently, or in a more reasonable manner, is not to the point. In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, French J (as he then was), considering the meaning of “reasonable” in provisions of the Racial Discrimination Act1975, said at [79]:
… there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D [of the Racial Discrimination Act 1975] and a recognition of the two competing values that are protected by those sections.
Had Ms Michel closed to her mind?
Giving evidence, Ms Michel frankly acknowledged that she did not believe Ms Adams was unwell when she sent her email at 11.59am. She acknowledged that she would not countenance any further request to delay her return to work. However, I do not accept that she had closed her mind to a reasonable request by Ms Adams for leave.
The history of Ms Michel’s dealings with Ms Adams in approving changes to her leave, and extending her leave on occasions, is evidence that Ms Michel was prepared to be flexible and accommodating. As set out above, she had no reason seriously to believe that Ms Adams was too unwell to be at work on 25 August 2011.
Ms Adams submits that Ms Michel’s attitude to her was evident from previous occasions, such as when she made a comment in 2010 to the effect that, if Ms Adams was unwell as she claimed, there was no reason she could not attend the scheduled appointment with Dr Jetnikoff. Ms Michel acknowledged she said something to that effect. Her comment might seem harsh but I do not accept it demonstrates that she had unreasonably closed her mind on 25 August 2011.
Dr Jetnikoff’s recommendations
Ms Adams contends that Ms Michel should have taken a more flexible approach to her request for a leave in light of recommendations in Dr Jetnikoff’s reports. I do not accept her reading of his reports as, in effect, an open-ended recommendation to allow Ms Adams unlimited flexibility.
Referring to her wish to telephone her mother each morning in China, in his first report dated 18 June 2010 Dr Jetnikoff stated:
Given what appears to be a legitimate problem with her mother’s health and a solution that involves international phone calls, I would strongly recommend some flexibility be made for Ms Adams to start work at 10 AM to allow her a period of time to make those phone calls as she appears to want to work full time but has difficulties in respect to the conflict of her obligations
Ms Michel gave evidence, which I accept, that she did not see the details of Dr Jetnikoff’s report but she was aware of Ms Adams’ request. Ms Michel gave unchallenged evidence that Ms Adams was offered a prepaid international phone card so that she could telephone her mother during morning tea but she declined. In any event, her request was accommodated and she was allowed to start at noon.
In his second report dated 29 July 2011, Dr Jetnikoff was asked whether there were “any adjustments required to be made by the ATO to ensure the employee [Ms Adams] could perform the requirements of the duties?” He responded that he believed “the ATO has been quite accommodating”. He was asked whether there were any strategies to help Ms Adams cope with her work and he replied:
I would suggest that Ms Adams, as in previous reports, will require an element of tolerance and patience and she does definitely has (sic) an obsessional personality. It is definitely this that is making her inflexible and defensive. She is quite sensitive to criticism and she does appear to have difficulty seeing other people’s point of view.
I do not read Dr Jetnikoff’s comments as suggesting anything more than recognition of Ms Adams’ personality, and the need for tolerance and patience in dealing with her. In the circumstances, I am satisfied that, in allowing her considerable flexibility in her leave arrangements, and in the manner in which Ms Michel and Mr Mellifont responded to her requests, they demonstrated both.
Consultation and relevant ATO policies
Ms Adams contends that Ms Michel should have consulted with her before designating her absence as authorised and before attempting to speak to her at her desk and give her papers. Ms Adams further contends that the failure to do so meant Ms Michel’s actions were not reasonable. I do not accept these contentions.
Ms Michel frankly acknowledged that she recalled that, at some point during their conversation around 12.57pm, Ms Adams asked her to contact the union on her behalf; Ms Michel told her that said words to the effect that it was Ms Adams’ responsibility and not hers to organise a union representative. There is nothing unreasonable in that response.
Clause 2 of the Agency Agreement provides that consultation and communication within the ATO is to be based on principles including that team leaders are accountable for delivering business outcomes and have the authority to make relevant decisions, and:
·Employees should be consulted about matters that significantly affect them
·Employees have a right to have their views represented through their chosen representative, including union representatives
“Consultation” is defined to mean:
the sharing of information and providing a genuine opportunity for employees and their representatives to put their views to the appropriate decision maker and for those views to be considered before a final decision is made.
I do not accept that the Agency Agreement requires that a team leader not take action unless and until an employee who so wishes has a union representative present. The requirement is for consultation before a final decision is made. It would place an unreasonable burden on a supervisor to have to defer even speaking to an employee, possibly for several days, before taking any action. In any event, the decision concerning Ms Adams’ unauthorised leave was not final and, indeed, she sought review of that action, as set out below, apparently to her satisfaction.
Even if Ms Michel did not act in accordance with the Agency Agreement or other ATO policy, it would not necessarily follow that her action was not reasonable, although I accept it might form the basis for such conclusion. Guidelines and the like for conduct in similar circumstances may be relevant to understanding whether action was undertaken in a reasonable manner but that should not distract from the real question in s 5A, namely whether the action was reasonable administrative action taken in a reasonable manner: Martin v Comcare (above); Comcare v Martinez (No 2) (above).
It was humiliating for Ms Michel to speak to Ms Adams in public at her desk
I do not accept that it was unreasonable for Ms Michel to approach Ms Adams at her desk and ask to speak to her in a private room. The evidence is that their conversation in the first instance went no further than that, and only when Ms Adams refused did Ms Michel say she would leave the papers on her desk. It is not clear what Ms Adams thinks Ms Michel should have done in those circumstances.
In my view, Ms Michel approached Ms Adams in a reasonable manner and it was reasonable for her to act as she did.
Ms Adams’ request for review of the sick leave decision
Ms Adams sought review of the decision to record her absence as an authorised. Her complaint was investigated and resolved by way of a Determination on 27 May 2012 by review officer. A copy of the Determination is not before the Tribunal but it is common ground that the outcome was a finding that Ms Adams had not breached the code of conduct. In particular, she had given notice to Ms Michel that she was not feeling well on 25 August 2011.
I do not accept Ms Adams’ contention that the Determination vindicates her and is proof of Ms Michel’s unreasonable action. Documents relating to the review are not before the Tribunal but it apparently focussed on whether Ms Adams notified Ms Michel that she was unwell. It does not follow from the finding of that review that Ms Michel’s actions were not taken in reasonable manner for present purposes.
Ms Michel gave evidence that, in July 2012, she asked the People Helpline at the ATO to amend Ms Adams’ leave records so as to show her absence on 25 August 2011 as flex leave. Ms Michel gave evidence that she did so because Ms Adams had applied for review of action and it was suggested to her by the People Helpline that reversing her decision could resolve the review of action request informally. Ms Michel maintains that it was appropriate for her to record the absence as an unauthorised absence but she followed the suggestion. The change of the record has to be viewed in that context. I do not accept it is evidence of acknowledgement of unreasonable action by Ms Michel.
It does not follow, from the review of action request, which was action taken for a different purpose even if in relation to the same circumstances, that recoding Ms Adams’ absence on 25 August 2011 as unauthorised was not reasonable administrative action taken in a reasonable manner.
The written direction on 7 July 2011
In the alternative, it is submitted for Ms Adams that the written direction given by Ms Michel on 7 July 2011 was unreasonable, if not unlawful and, to the extent that the action 25 August 2011 relied on that direction, it cannot come within the exclusionary provision.
The document headed “Formal Directions and Formal Warning” notified Ms Adams that flextime provisions were withdrawn with immediate effect and that unauthorised absences would attract a salary deduction in accordance with the Agency Agreement. Further, that she was to leave the premises within 10 minutes of ceasing duty unless she had prior approval otherwise and, “in any and all circumstances” she was to leave the premises by 7pm.
Flextime
I do not accept Ms Adams’ claim that she had an unqualified entitlement to flextime such that its withdrawal was unreasonable or unlawful. Clause 73.23 of the Agency Agreement provides:
Where a Team leader has previously warned or counselled an employee about the misuse of flexible arrangements (including flextime), or a serious matter requiring immediate action arises, the Team Leader may direct the employee to:
a) Work regular hours without access to flextime; or
b) Work 8.30am to 4.51 pm, with or without flextime.
In an email to Ms Adams on 11 July 2011, Ms Michel set out her reasons for the direction which, she said, she was unable to explain to Ms Adams on 7 July 2011 because she left the room before she could do so. She referred to Ms Adams’ failure to manage her case work appropriately and spending “an unreasonable amount of time” on unrelated matters, and that her “work output [was] not consistent with the hours recorded” on her time sheet. I accept Ms Michel’s evidence that she had raised these matters with Ms Adams several times in the past.
For Ms Adams it is submitted that the email does not disclose a previous warning or counselling about “misuse of flexible arrangements or flextime” but, rather, concerns about her “work output and level”, meaning there was no basis for this part of the direction.
“Misuse” in clause 73.23 is not defined but I am satisfied that the matter referred to in Ms Michel’s email concern counselling that can be considered broadly as relating to use of flexible arrangements.
Leaving the building
For Ms Adams it is submitted that there was no basis for the direction concerning leaving the building and it was unreasonable, in particular because she had never been counselled or warned about the matter.
Ms Michel gave evidence that concerns had been raised about Ms Adams remaining on the premises without apparent reason and she was concerned that Ms Adams was trying to complete work or, possibly, had attended the office for some unauthorised purpose. She said the 7pm direction was because security officers had reported “numerous times” that Ms Adams had remained after that time and, for unknown reasons, on one occasion, attempted to leave by the fire stairs, setting off the fire alarm. I accept her evidence.
Consideration
Even if the withdrawal of flextime was outside the terms of the Agency Agreement (which I do not accept), that does not undermine the reasonableness of what occurred on 25 August 2011. Regardless of the Direction issued on 7 July 2011, Ms Adams was warned several times leading to that date what would happen if she did not attend work.
I do not accept that the direction about leaving the building was unreasonable or unlawful but, in any event, it had no bearing on what occurred on 25 August 2011.
THE EVENTS LEADING UP TO 25 AUGUST 2011
Because, for the reasons above, Ms Adams’ claim must fail, it is not necessary to determine whether compensation would also be excluded on the basis of administrative action from around March 2011 to May 2011. However, I will deal briefly with those events.
Comcare contends that the attempts by Ms Michel and then Mr Mellifont to implement an informal performance management process from around March to May 2011 should be regarded as together forming one reasonable administrative action. I accept they should be regarded in that way. I find they come within subsection 5A(2)(b) (a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment). I find they come within subsection 5(2)(e) (anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d)). They may also come within sub-section 5(2)(a) (a reasonable appraisal of the employee's performance) although a more formal appraisal may be required to come within this provision
For Ms Adams it is submitted that the evidence does not support the conclusion that these events contributed to a significant degree to her adjustment reaction. Comcare contends that it is sufficient that they are an “operative cause” of her condition.
Ms Adams gave oral evidence that the attempts by Ms Michel and Mr Mellifont to implement a performance improvement plan from around March 2011 had no effect on her and did not cause her anxiety or stress. Her general practitioners’ clinical notes show otherwise.
Clinical notes for 11 March 2011 show “stressed at work ... given very difficult deadline by team leader … feels unreasonable request [sic] … also feels having leave not approved in unreasonable … feels that if work problems were solved then wouldn’t be stressed …”. The notes for 31 March 2011 show she was “constantly thinking of work problems” and feeling “very stressed” about her team leader’s demands. On 6 April 2011, her doctor recorded “still stressed, headache and nausea … anxiety symptoms … had case meeting at work yesterday … conflict with manager … still work related stress, no outside stressors.
The clinical notes show that, on 28 April 2011, Ms Adams was “unable to fall asleep due to thinking about work”. On 31 May 2011, she was “having ongoing stress about work” and “ongoing problems with bosses”. On 9 June 2011, she told her doctor “very stressed now … all began with work related matters” and she was worried about “performance management”. On 22 June 2011, her doctor noted she had brought in the ATO policy concerning underperforming employees which she felt had “not been followed properly” and “saw [psychiatrist] last week … diagnosis of adjustment disorder with anxious mood”. Clinical notes from another practice record similar comments.
In light of these records, I do not accept Ms Adam’s claim that the attempts to manage and improve her performance had no effect on her; plainly they did. Whether she had an identifiable, diagnosable condition is not to the point. It is clear that she was a suffering a condition “outside the boundaries of normal mental functioning” and so an ailment for the purposes of the SRC Act: Comcare v Mooi (1996) 69 FCR 439.
Dr Jetnikoff’s report of 29 July 2011 shows that, in his view, Ms Adams had no diagnosable psychological condition at that time. Her treating psychiatrist, Dr Law, provided a report stating a similar view. In his report, Dr Hong said her condition was “largely resolved” when he saw her in July 2011. Giving oral evidence, Dr Hong agreed that the earlier events played a part on her adjustment disorder. For Ms Adams it was submitted that the Tribunal should find accept that any effect of events leading up to 25 August 2011 are not relevant for present purposes. I do not agree. I do not think these opinions outweigh the evidence in the clinical notes from Ms Adams’ other doctors that she considered her problems started with the attempts to manage her performance.
The causal connection
Hart v Comcare [2005] FCAFC 16 established the principle that, however many separate causes an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury (also see Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; Martin v Comcare (above)).
In Reeve, Justices Rares and Tracey said (at [65]) the assessment of whether an injury is the result of reasonable administrative action requires the Tribunal to determine whether it is “the, or a, common sense consequence” of that action. Those comments were cited with approval in Drenth v Comcare (2012) 128 ALD 1, in which the Full Court said (at [29]) that if reasonable administrative action the “operative cause” of the injury, the exclusion has effect; and see Martin v Comcare (above). These decisions post-date the decision of Finn J in Wiegand v Comcare (No 2) [2007] FCA 237. The “operative case” test has been applied by the Tribunal in decisions including Dunstan and Comcare (2012) 58 AAR 1 and Pettiford and Comcare [2014] AATA 95. In some earlier decisions, the Tribunal considered that a “material” or “significant” contribution was required.
In my view, the authorities support the conclusion that a significant contribution is not necessary for the exclusion to operate, and an “operative cause” is sufficient. On either test, I am satisfied that what occurred leading up to (an on) 25 August 2011 had the necessary causal nexus with Ms Adams’ condition.
I am satisfied, on the information before the Tribunal, that the actions of Ms Michel and Mr Mellifont in attempting to implement a performance improvement plan were reasonable administrative action in the circumstances. Nothing in the information before me supports the conclusion that they were taken in anything other than a reasonable manner.
CONCLUSION
For these reasons, I am satisfied that the action taken on 25 August 2011 in respect of Ms Adams’ employment was reasonable administrative action and that it was taken in a reasonable manner. Nothing turns on whether it is considered to be a single action or two.
I am also satisfied that the action in attempting to implement a performance improvement plan from around March 2011 to May 2011 was reasonable administrative action taken in a reasonable manner.
It follows that Ms Adam’s condition is not an injury for the purposed of the SRC Act.
I affirm the decision under review.
I certify that the preceding 131 (one hundred and thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey ...........................[sgd].............................................
Associate
Dated 29 April 2016
Date(s) of hearing 29, 30 and 31 March 2016 Counsel for the Applicant Dr S Bogan Counsel for the Respondent Mr A Berger Solicitors for the Respondent Mr B Dean
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