Alam and Comcare (Compensation)

[2017] AATA 31

Alam and Comcare (Compensation) [2017] AATA 31 (18 January 2017)

Division:GENERAL DIVISION

File Number(s):      2015/3715

Re:Manzur Alam

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:18 January 2017

Place:Sydney

The Tribunal affirms the decision under review.

...................................[sgd].....................................

Mrs J C Kelly, Senior Member

CATCHWORDS

COMPENSATION – psychological injury – excluded from definition of ‘injury’ under s 5A – reasonable administrative action taken in a reasonable manner – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

18 January 2017

DECISION UNDER REVIEW

1. The decision under review is the decision dated 29 June 2015 made by a delegated review officer to revoke the determination dated 13 March 2015 in which the delegate had accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of a claimed psychological injury. The delegated review officer found that section 5A of the SRC Act operated to exclude the respondent’s liability to pay compensation under s 14 of the SRC Act.

   ISSUES

2. The respondent accepted that:

   (a)the applicant previously suffered from a condition that is “outside the boundaries of normal mental functioning and behaviour” which is therefore an ailment as defined in section 4 of the SRC Act; and

   (b)the ailment was contributed to, to a significant degree, by the applicant’s employment with the Commonwealth, so as to meet the definition of ‘disease’ as defined by section 5B of the SRC Act; and

   (c)the date of injury was 14 November 2013.

3. The issues that the Tribunal must determine are therefore:

   (a)was the disease suffered as a result of reasonable administrative action taken in a reasonable manner, such to be excluded from the definition of ‘injury’ as defined by s 5A of the SRC Act;

   (b)if not, did the injury result in impairment or incapacity for work such that Comcare is liable to pay compensation to the Applicant under s 14 of the SRC Act.

   THE LEGISLATION

4. Section 5A of the SRC defines injury:

   (1)  In this Act:

   injury means:

   (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.

   (2)  For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

   (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.

   THE EVIDENCE BEFORE THE TRIBUNAL

5. The following documentary evidence was before the Tribunal:

   ·The applicant’s 234 page bundle of documents including a 43 page submission and attachments, and other correspondence provided to the Tribunal.

   ·A leave summary report for the applicant’s wife for August 2013.

   ·A Certificate of Completion dated 24 May 2013, stating that the applicant had competed program requirements for “NSW/ACT Election Ready Operational Capacity Development Program 3”.

   ·Documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T documents”) comprising 629 pages.

   ·A Performance Overview for the applicant dated 8 November 2013 prepared by Ms Khanna.

   ·An email exchange between the applicant and Ms Khanna dated Friday 15 November 2013.

   ·Website screenshots of Study International (studyinternational.net.au).

   ·Ms Khanna’s written statement.

   ·ASIC company search extract for ‘destination2aus’.

6. The applicant and Ms Khanna gave evidence before the Tribunal.

   CHRONOLOGY

7. The following chronology is necessary to understand the parties’ contentions.  It is derived from the contemporaneous evidence before the Tribunal.

8. The applicant joined the Australian Electoral Commission (AEC) on 8 April 2013 as an Assistant Divisional Office Manager, APS5 at the Penrith office.  The applicant’s immediate supervisor at the Penrith office was Ms Bush, an APS6 Divisional Office Manager.  Mr Petrocco was also an APS6 Divisional Office Manager at the Penrith office.    The EL1 Operations Manager for the Penrith Office was Ms Khanna. Ms Garrett and Ms Leckie were both Assistant Directors of the People Services Branch of the AEC. 

9. The applicant underwent a three week induction program when he commenced his employment. The applicant’s results for the courses he undertook were either “competent”, “passed”, or “attended”. The distinction between the two results is not apparent from the print out (T4).

10. The applicant undertook other training, for example, in relation to Close Seat Management in May 2013 (T5).

11. On 15 July 2013, there was an incident involving the applicant and Ms Bush.  The applicant claimed that Ms Bush had yelled at him.  Ms Khanna became involved.  The applicant wrote an email to Ms Khanna on 24 July 2013 confirming that “everything is ok” as he advised her on 17 July 2013, and thanking Ms Khanna sincerely for her “timely intervention”. He wrote that Ms Bush apologised to the applicant at 4:45 pm on 15 July 2013 “for her unprofessional behaviour and admitted that she should not have raised her voice against [the applicant] and should not have done so in front of all the employees of the LWU”.  He also wrote about Ms Bush’s “body language signs”.  He wrote that Ms Bush had from time to time put her hand up “on my face showing stop and pointed her fingers towards” him which he found offensive.   He specified one particular incident.

12. On 5 August 2013, writs for the Federal election were issued.  The election was held on 7 September 2013.  During the election period, the applicant’s role was automatically elevated to Acting as a Divisional Returning Officer, Division of Chifley, APS6, Penrith, NSW. 

13. On 8 August 2013, Ms Bush sent two emails to herself recording deficiencies in the applicant’s performance.

14. On 9 August 2013 at 6:42 pm, Ms Khanna sent an email to the applicant in which she referred to their discussion on 6 August 2013 and directed him not to drive under any circumstances for the purpose of undertaking AEC business.  At 6:44 pm on that day, she sent him an email asking him to advise in writing when the situation changes. At 8:47 am on Monday 12 August 2013, the applicant emailed Ms Khanna saying that he had “received your email today after I brought my car.  I will cease using my car from tomorrow”.  These emails relate to the suspension of his licence.

15. The licence suspension and other aspects of the applicant’s performance were the subject of email exchanges between Mr San Lauw, Director Operations NSW State Office and Ms Leckie between 8 and 12 August 2013. 

16. In an email dated 11 August 2013, Ms Leckie referred to “a number of incidents that cast reasonable doubt regarding [the applicant] being a fit and proper person to fulfil the responsibilities of a public servant (let alone an AEO)”, that they may not have given an employer cause to investigate the applicant’s employment history however “he recently asked the AEC (become an accomplice in/turn a blind eye to) his criminal activity (driving without a licence)”. She wrote that:

    In the interests of being thorough and diligent in our exploration of [the applicant’s] suitability for continuing employment, we propose to: 1. liaise with AEC security to ensure his police check declaration was truthful and to find out what we can from his former employer (He transferred from another APS Agency)

    PSP will then approach Legal Service Branch for further advice about the legal grounds for termination. To this end, could you please provide any file notes/emails documenting the incidents that suggest he may not be a fit and proper person for continuing APS employment?

17. On 14, 19 and 22 August 2013, Ms Bush sent herself emails detailing deficiencies in the applicant’s performance.  On 16 August 2013 Ms Bush sent the applicant an email saying that he had left un-shredded material on the shredder again when he left “today”.  She sent Ms Khanna a copy of the email on 22 August 2013. On the same day, Ms Bush sent an email to Ms Khanna in which she set out further deficiencies in the applicant’s performance.

18. On 22 August 2013, Ms Khanna wrote a three and a half page file note detailing deficiencies in the applicant’s performance. She wrote: “In summary, Manzur does not have the required skills and capability to perform the role of a DRO.  He lacks initiative, is not a team player and has not met the expectations of his APS5 role in the time he has been employed with the AEC.”  She recorded as one of the outcomes/action arising: “Manzur should be absolved of his duties as a DRO.”

19. On 26 August 2013, Ms Bush sent a one and a half page email to Ms Khanna about issues that had arisen that morning in relation to the applicant’s performance, including his lack of preparation for mobile polling training.

20. Ms Khanna wrote a file note dated 27 August 2013 about the applicant’s lack of preparation for conducting training for Mobile Polling Team which included a record of her discussion with the applicant “to find out his thoughts on how he performed and about his planning and preparation for the training”. She conveyed to him that she was very disappointed as his performance had not met expectations. She also stated that that was the only major election task allocated to him and he had received support, guidance and advice from experienced Election Managers before the election date was announced. She wrote that “Clearly he did not heed the advice or comprehend the importance of doing the groundwork well in advance.” She concluded that the applicant “is not able to perform his role as DRO Chifley effectively. His daily performance demonstrates he does not have a good understanding of what his role entails and has not been able to acquire the desired knowledge on the limited tasks allocated to him.”

21. On 27 August 2013, the State Manager, the Director Operations, and Operations Manager/Assistant Director signed off on a recommendation that the applicant not be placed in the DRO role and that he be offered a development placement away from Penrith.  Mr San Lauw sent a Minute about the matter to Mr Doug Orr, State Manager.

22. On 28 August 2013 the applicant wrote an email to Ms Khanna in which he addressed the mobile polling and listing things that went well and things that did not go well. He concluded: “I strongly believe that I have learnt a lesson from this and definitely will make improvement in the future.”

23. On 30 August 2013 Ms Bush wrote an email to Ms Khanna detailing what the applicant had done in relation to a silent elector and advice he had given which she indicated had been incorrect.

24. On 30 August 2013 Ms Khanna wrote an email to the applicant in which she referred to their meeting that day in which they discussed his performance in the DRO role and that it was agreed that he would not continue in that role and would be placed at the Parramatta office for the next few weeks to give him broad election experience without the added pressure of management responsibility. She indicated that a review would be conducted following the culmination of Federal Election 2013 approximately in the week starting 7 October “with a view to you returning to the Penrith office”.

25. On 12 September 2013 the applicant sent an email to Ms Khanna in which he said that her comment “you can’t follow instruction and that’s what we have found back at Penrith”…is un professional, un true, fact less and definitely attacking towards” his dignity.  He also said that her comment was irrelevant and no one explained to him that he needed to do something every time he submitted his timesheet. He said that he did not deserve that type of comment and that he was never engaged and involved at Penrith. He said “I am involved and engaged here and therefore extremely motivated and learning to deliver a successful election in future and at this point of time your comment puts me through extreme stress and anxiety.”

26. Ms Khanna replied on 13 September 2013 reiterating that for his development he needs to follow instructions and explaining that his timesheet needed to be verified before Ms Bush could approve it.  The applicant responded that no-one had told him, she cannot blame him, and her tone of voice “was really rude”.

27. On 9 October 2013 Ms Khanna emailed the applicant stating that as discussed on 30 August, he was due to return to Penrith the week starting 7 October 2013, but advised that the date had been extended to 16 October 2013.  Thereafter the applicant requested an appointment with Mr San Lauw to discuss returning to Penrith.  In response to Mr San Lauw’s request to “dot point” what he would like to discuss, the applicant specified a background incident which upset Mr Petrocco and another officer just after he joined AEC, (the privacy breach incident), resolution still pending from the Ops Manager about that incident, bullying and harassment incident from his supervisor (Ms Bush), and other incidents at Penrith affecting his career. He set out reasons why he should be transferred to the Parramatta office.

28. In a further email on the same day, the applicant wrote that there were also issues directly against Ms Khanna which he was not sure how to put without affecting her dignity while she was present.  In response to a request from Mr San Lauw, the applicant set out six matters relating to Ms Khanna. 

29. On 17 October 2013, the applicant sent an email from his personal email address to Mr San Lauw asking if 21 October 2013 meeting was “ok with” him because the applicant was on leave until then and he did “not wish to go back to Penrith”. 

30. It is not clear from the material before the Tribunal whether that meeting ever occurred.

31. Ms Khanna prepared a Performance Overview for the applicant on 8 November 2013.  She stated that Ms Bush would work with the applicant through an informal performance improvement process. She identified the following areas of performance that required improvement:  initiative, working without supervision, ownership and accountability, time management and priorities.

32. The applicant resumed working at Penrith on 12 November 2013.

33. On 13 November 2013, Ms Khanna confirmed in an email, a conversation with the applicant to the effect that they would have a meeting with Ms Bush on 15 November to discuss and implement a strategy to assist the applicant to meet the expected performance standards as Assistant Manager Enrolment. She attached a document or documents and links to three policy documents including managing underperformance guidelines, PMP guidelines 2012 and section 1 of the Enterprise Agreement (EA). She also stated that the applicant was entitled to bring a support person to the meeting if he wished.

34. The applicant replied saying the following. He appreciated her initiative “to implement a strategy for my development needs”.  He did not agree with quite a few things in the Performance Overview report that Ms Khanna had provided and requested that the meeting be postponed and that he be provided with a reasonable time to get back to her with his statement/s. 

35. Ms Khanna replied on the same day, advising that the meeting was an informal discussion about performance improvement and that the documents were for him to peruse to ensure that he came to the meeting informed about what was going to be discussed. She said that she believed that she had allowed a reasonable period of time as notice and the meeting would be proceeding as planned. He replied, stating that he would get back to her in writing after a meeting “as I need clarification on some issues”.

36. The applicant sent a further email on 13 November 2013.  He wrote that statements on several items in the Performance Overview “are false and misleading”. He requested a meeting beyond 22 November to allow him to organise a support person and to prepare his response. On 14 November 2013 at 11:18 am, Ms Khanna sent the applicant an email in which she wrote that she had  “sought guidance from” Mr San Lauw and HR, and advising that the meeting would proceed the next day.

37. At 10:08 am on 14 November 2013 the applicant emailed HR requesting redeployment under the Australian Public Service Commission’s Redeployment Register.  In an email sent to Recruitment and Help HR, dated 18 November 2013, Ms Leckie wrote that she had called the applicant and advised him that he needs to be excess or potentially excess before being placed on the register and as an ongoing employee, he was still able to apply for any external to AEC positions via APS jobs.

38. The meeting proceeded as planned on 15 November 2013.  After the meeting, Ms Khanna sent the applicant an email confirming the points discussed in the meeting “to help” the applicant “achieve the performance standards expected from APS5”.  An informal performance management process was to begin on 18 November 2013 which would involve him being shown tasks he needed to perform on a daily/weekly/monthly basis, associated timeframes to complete the tasks and participating in a weekly feedback session with Ms Bush and Mr Petrocco.  A performance review was to be conducted on or before 20 December 2013 to assess his progress.  If the level of the applicant’s performance was deemed satisfactory, the informal process would cease and he would revert to the normal AEC performance management process using an Individual Performance Plan (IPP).   If the assessment decision was that he had not demonstrated his ability to attain and sustain the required level of performance “then as the policy states we will be obliged to commence a formal process”.  

39. On 12 December 2013 Ms Bush sent an email to the applicant about the feedback they discussed in their meeting and attaching a document. She commented that their discussion was very productive and the applicant’s willingness to accept feedback that sometimes included criticisms was appreciated. He replied, saying that he accepted and agreed with the feedback and highly appreciated all the comments and recommendations “as they are helping me to improve my capabilities”. 

40. On 20 December 2013, Ms Khanna sent to the applicant a summary of their discussion held on 19 December 2013, reviewing his progress.  Copies were sent to Mr San Lauw and Ms Bush. The applicant replied, agreeing that it was accurate.

41. On 5 February 2014, the applicant sent Ms Khanna an email requesting a meeting to “discuss some issues I am currently facing from my supervisor”.

42. On 20 February 2014, the applicant, his manager, and the AEC’s “RCM” signed the Internal Return to Work Guidelines covering the period 19 February 2014 to 19 March 2014. That document referred to his medical condition and stated that during that period, the informal Performance Improvement Program would be paused. The document also indicated that the IPP Midyear performance discussion would proceed as it was “reflecting on performance discussions previously held”.

1. On 6 March 2014, the applicant sent Ms Wren an email with the subject line “RE: copy of your mid-year performance agreement”. Ms Wren was the rehabilitation case manager. The applicant set out in detail how he was dissatisfied with the discussion with his supervisor, Ms Bush, during that meeting and his dissatisfaction with the informal performance improvement plan feedback sessions.  He stated that he did not have a support person at Penrith because he could not make any friends there.  He stated that he wished to improve his capabilities and take his career further with the AEC but could not do that in the Penrith environment.  He said that the situation was adversely affecting his emotional and mental health.  He requested a different work location.

2. On 11 March 2014, the applicant sent Ms Khanna an email with the subject line “FOR ADVICE: our today’s discussion”.  He said that she had been very kind and maintained her high professionalism. He expressed dissatisfaction with the informal performance plan although accepting that it had been “with all good intention from your part”. He sought Ms Khanna’s support for a transfer.

3. The IPP mid-year review meeting between Ms Bush and the applicant was conducted at the end of February or beginning of March 2014. The applicant prepared a three and a quarter page statement about that meeting.  There was an email exchange about the review between the applicant and Ms Bush.

4. On 19 March 2014 Ms Garrett sent an email to the applicant and copies to Mr San Lauw, Ms Wren, Ms Khanna and Ms Bush.  The subject was “workplace participation/ performance management process”. Ms Garrett acknowledged receiving a medical certificate dated 15 March 2014. She referred to the IPP Midyear performance discussion that had occurred.  She noted that before that discussion, the applicant was offered the opportunity to bring a support person with him which he declined. She noted that several times during the IPP Midyear performance discussion the applicant was asked if he would like to take a break but he declined those invitations. She also referred to the statement that the applicant had provided about that review. Ms Garrett talked about the informal Performance Improvement Process and noted that it was to recommence on 20 March 2014 and was to continue for another six weeks as two weeks had been completed prior to the pause in the process. She acknowledged that that process could be difficult and uncomfortable and suggested that he continue to seek guidance and support from his medical practitioner and/or those he thought may be able to assist him. She stated that the applicant was able to and was encouraged to bring a support person for the fortnightly feedback sessions which an independent person would also attend. She noted that the Performance Improvement Plan would be extended by the length of any absence from the workplace.

5. On 21 March 2014, Ms Khanna sent the applicant a summary of their discussion held on 20 March 2014.  He replied saying that it was accurate except that he had asked the question:  “Whether I can request State office to send someone as my support person in case I need someone”.

6. On 10 April 2014, the applicant sent Ms Bush an email questioning and criticising comments she had made.

7. On 11 April 2014, the applicant sent Ms Khanna an email about their telephone conversation on that day, stating: “I would like to advise that the below email is a ‘thing from the past’ – for me now.  I am fine and feeling positive. I highly appreciate your support”. She replied, noting his feelings, and then said:  “From my conversation with you this morning you conveyed that you understand Debbie being your manager is questioning you to help you learn and develop the relevant skills you need to perform your role and that you feel it is working”.  She went on to set out the aim of the informal Performance Improvement Plan (PIP) and advised that an assessment to determine his suitability to perform the APS5 level “will be made at an appropriate time”.

8. In an email to Ms Bush dated 18 June 2014, the applicant sought approval of reimbursement of his train fares as he had attended a managers’ meeting on 3 and 4 June 2014 straight from home after holidays and had not had a chance to read his work emails.

9. On 23 June 2014 at 9:46 am, the applicant sent Ms Bush an email with a copy to Ms Khanna.  He objected to Ms Bush’s request on his return from two weeks at “ICE”, that he needed to explain his “understanding about every single memos and ops update to you”, following the train ticket incident.  He believed that “this is an unreasonable expectation” and requested her to “stop this type of harassment and be helpful”. He referred to his medical condition for which he was seeking professional help. At the same time, he sent Ms Khanna an email stating that he was extremely stressed, was leaving the office, and had sent Ms Bush an email requesting her to be helpful and cooperative towards him.

10. On 23 June 2014 at 5:47 pm, Ms Khanna sent the applicant an email about the requirement to seek approval prior to using a corporate credit card and seeking reimbursement of a small sum.

11. Susan Seif, Registered Psychologist, wrote a report dated 1 July 2014 in which she said the following.  She was writing to support a transfer of workplace for the applicant. She had been his treating psychologist since March 2014. He was referred by his GP for “work-related stress, with specific symptoms of low mood, disturbed sleep, and excessive negative ruminations surrounding workplace trauma, increased irritability, and physiological signs of stress”.  The applicant had responded well to treatment but required ongoing psychological intervention “due to the ongoing nature of the presenting problem”. She recommended that the NSW management within the AEC reassess the sustainability of the applicant remaining in his current workplace “given the extensive amount of psychological stress it has caused for him and his family over the last fourteen months”.

12. On 3 July 2014, the applicant sent a lengthy email to Mr Doug Orr, with a copy to Mr San Lauw, in which he set out the history of unfair treatment, bullying and harassment that had occurred during his employment at the Penrith office. Mr Orr replied on 7 July 2014. He began a review process under the EA.

13. In September 2014 there was an exchange of emails between the applicant and Mr San Lauw in relation to the review process and the applicant taking personal leave from the Penrith office during the time of the review.

14. Mr Michael Will, Partner, HWL Ebsworth Lawyers, provided to the AEC a 16 page report dated 30 September 2014 entitled “Review of Employment Related Action – Mr Manzur Alam”.  In the introduction to that report, Mr Will wrote that on 23 July 2014, the AEC had asked him to conduct “as a Reviewing Officer, a review of employment related action as requested by an AEC staff member, Mr Manzur Alam”.

15. In summary Mr Will concluded that the decision to place the applicant on an informal management of underperformance process was an appropriate decision, that it was conducted properly, and that it should be allowed to progress according to the AEC’s policy. He did not consider that the applicant was bullied or harassed during the feedback sessions during that process, but if he had other complaints including about bullying, harassment, or the allegation that an officer had attempted to solicit a bribe from him, that he should take those matters up separately through the appropriate AEC’s processes. Mr Will recommended that the decision to initiate the informal management of underperformance process, and its conduct, be confirmed. He did not consider it appropriate that the applicant be transferred to another AEC office, “as that would not permit the proper progress of the Managing Underperformance process set out in Section L of the EA”.

16. On 29 October 2014, Mr Tim Courtney, Acting First Assistant Commissioner, Delegate of the Electoral Commissioner in relation to Review of Employment Related Actions, wrote to the applicant via email setting out his decision in relation to a request for a Review of Employment Related Action.  Mr Courtney affirmed the rating “not achieved” for the Informal PIP, that that process should continue to its planned conclusion, and did not support the applicant’s request for transfer from the Penrith office.  Mr Courtney advised the applicant to utilise the AEC’s complaint process in the Respect at Work Guideline if he had continuing concerns that Ms Bush was bullying, harassing or discriminating against him. Mr Courtney referred the allegations of improper conduct by Ms Bush to the Deputy Commissioner for an initial investigation to determine if the matter should be considered under the AEC’s Procedures for Determining Breaches of the APS Code of Conduct and Sanctions.  In relation to an allegation of serious misconduct against Mr Petrocco, Mr Courtney referred the matter to the Deputy Commissioner “with a recommendation for no further action under [the relevant procedures] unless [the applicant is] able to provide further information”.

17. On 2 November 2014, the applicant sent Mr Orr an email, copied to Ms Janet Fuller of the AEC, requesting a transfer on compelling and compassionate grounds. Mr Orr replied on 4 November 2014 refusing the request. Ms Fuller was the Director, Employee Relations Employee Relations & Services Section, People Services Branch AEC.

18. On 5 November 2014, Ms Bush sent a direction to the applicant to take personal leave immediately “and until such time as the AEC can be assured that you are safe to be at work, and that the workplace is not adversely affecting your medical condition”.  Ms Bush noted that the applicant had exhausted his personal leave but had been approved to access his annual leave entitlement if he provided a medical certificate.

19. On 15 December 2014, the applicant lodged a claim for compensation for “Anxiety State, Depressive Disorder, Tension Headaches, Insomnia”. In response to the question:  “When were you injured or when did you first notice you were ill?” The applicant wrote: 14 November 2013 at 11:18 AM. The applicant identified Susan Seif as his psychologist. He stated that he had also been referred for psychological assessment to a specialist called John Martin.

20. In addition to the claim form, the applicant attached to the email 48 documents.   The documents included his 25 page statement dated 15 December 2014, a letter from the AEC to the applicant’s general practitioner, a Medical Certificate for Compensation from the general practitioner, and correspondence between the applicant and various AEC officers.

21. On 17 December 2015, Ms Garrett wrote to the applicant.  His allegation of misconduct against Ms Bush and her allegations against him were being referred to Mr Michael Will for a preliminary assessment.  Certain arrangements were made in relation to his leave. The applicant opposed Mr Will’s appointment because he would be influenced by the report he had prepared.

22. The applicant saw Mr Martin, psychologist for four sessions of counselling between 18 December 2014 and 6 January 2015. 

23. The applicant provided to Comcare a “Further Statement regarding actions, exposures, events that caused my injury” dated 23 February 2015. The applicant provided a four page statement to Comcare “against the information submitted by the AEC” which had argued that the exclusionary provisions applied.

24. The applicant provided a 33 page statement dated 22 June 2015 and four attachments in response to the AEC’s request for reconsideration. 

25. The applicant’s employment was terminated on 31 July 2015.

    THE PARTIES’ CONTENTIONS

26. The respondent’s position about which action or actions resulted in the psychological condition the applicant has suffered, changed. In its Statement of Issues, Facts and Contentions dated 21 April 2016, the respondent listed the following “actions”: 

    (a)The decision to transfer the applicant to the Parramatta office of the AEC;

    (b)The removal of the applicant from the role of Divisional Returning Officer;

    (c)The decision to decline the applicant’s request to remain at the Parramatta office;

    (d)The appraisal of the applicant’s performance during the meeting on 15 November 2013;

    (e)The implementation and conduct of an informal PIP;

    (f)The appraisal of the applicant’s performance during the mid-cycle IPP review meeting on 26 February 2014; and/or

    (g)The decision to refuse the applicant’s request for a transfer to another place.

27. In the Outline of Submissions dated 28 July 2016, based on the report of David Martin, psychologist, the respondent argued that the applicant’s psychological condition was suffered as a result of one or more of:

    (a)The appraisal of the applicant’s performance during the meeting on 15 November 2013;

    (b)The implementation and conduct of an informal PIP;

    (c)The decision to decline the applicant’s request to transfer to  the Parramatta office; and

    (d)The decision to refuse the applicant’s request for a transfer to another place.

28. The applicant’s claims of various forms of unfair treatment, ill-treatment and mistreatment during his employment are many and detailed, as is apparent from the chronology set out above.  On various occasions, he has said that there was a conspiracy, and pointed in particular to the email from Ms Leckie dated 11 August 2013.  It is not clear to the Tribunal when he became aware of that email.

    CONCLUSIONS 

29. The Tribunal has taken into account all the evidence before it, including the lengthy written documents prepared by the applicant, his and Ms Khanna’s oral evidence and the oral submissions made by the applicant and on behalf of the respondent. 

30. The clinical notes from the applicant’s general practitioner’s practice are not comprehensive.  The first report of symptoms related to a psychiatric condition is on 14 February 2014. It is not apparent to the Tribunal on what basis Dr Soliman stated in the report of 14 February 2015, that the applicant first sought treatment of his condition on 14 November 2013.  There is no record of an attendance at the practice on that date.   The applicant did attend the practice on 25 November 2013 and a medical certificate was given, although the reason is not recorded. The report from Mr Martin, psychologist, dated 25 January 2014, states that the applicant was referred to Mr Martin by his general practitioner on 2 December 2014.  The Tribunal accepts that the applicant first sought medical help in relation to his psychological condition in the last couple of weeks of November 2013, after he had had to return to Penrith and the PIP had been initiated. 

31. The Tribunal finds based on the evidence before it, including the reports of Mr Martin, and Dr Flanagan, Psychiatrist, that the applicant’s psychiatric condition  was suffered as a result of the seven administrative actions identified in the Respondent’s Statement of Facts, Issues and Contentions.

32. The Tribunal accepts the opinion of Dr Flanagan, Psychiatrist, that the “cause of [the applicant’s] disorder is an inter-reaction between his personality which includes obsessional, paranoid and narcissistic traits and his workplace experiences.”  The Tribunal accepts that doctor’s assessment that “There is considerable embitterment as a result of what he believes are management actions which are unfair, vindictive and malignant”.

33. The Tribunal does not consider that the applicant’s beliefs are well-founded.  It does not accept that he has been bullied or harassed or treated unfairly, vindictively or malignantly or that he has been the subject of a vindictive conspiracy as he claims.  It does not accept that his evidence is reliable. 

34. A notable example of his unreliable evidence is that which he provided about who drove his car to work while his licence was suspended.  He tendered a copy of his wife’s leave record to show that she was on leave from 5 to 9 August 2013 and on 12 August 2013, to support a claim that she had driven him to work on 12 August 2013, and perhaps throughout that period.  The Tribunal does not accept that evidence.  If his wife had driven him to work on 12 August 2013, the Tribunal would have expected that the applicant would have said so in the email he sent to Ms Khanna at 8:47 am on Monday 12 August.  Rather, he wrote that he had received her email “today after I brought my car.  I will cease using my car from tomorrow”.  

35. The Tribunal prefers and accepts Ms Khanna’s evidence that the applicant told her in a conversation some days before she sent the direction not to drive while his licence was suspended, that he had driven his car to work and was very careful.  It also accepts her evidence that after she sent the direction, the applicant said:  “Thank you.  I now understand that I could have been fined or imprisoned for driving”.  That he required a direction from his employer to make him aware of those consequences shows that the applicant did not appreciate the seriousness of driving a vehicle while his licence was suspended, or indeed that he had done anything wrong, apart from not wanting his colleagues to know about the suspension. 

36. In a statement responding to the email of Ms Leckie, the applicant argued that having his licence suspended while driving his own car could not have been a breach of APS values.  The evidence referred to in the chronology, shows that senior management of the AEC took a very serious view of the matter.        

37. This episode reflects the applicant’s attitude which is apparent throughout the evidence before the Tribunal that he is not at fault.  While the applicant acknowledged from time to time that his performance could be improved, the Tribunal does not accept that he actually believed that his performance was deficient. He resented criticism and reacted accordingly, especially to Ms Bush whose job it was to point out deficiencies in his performance and seek to assist him to overcome them. 

38. Because it does not accept that the applicant’s evidence is reliable, or his beliefs about his treatment at the AEC Penrith office are well-founded, the Tribunal does not accept that as a result of the privacy breach incident that occurred when the applicant joined the AEC, any AEC officer threatened to remove him from that office, or determined to treat him unfairly in any way thereafter. 

39. The Tribunal does accept that an incident occurred on 15 July 2013 for which Ms Bush apologised.  The correspondence set out in the chronology shows that it was an incident that occurred and was appropriately dealt with on the day. It does not accept that Ms Bush bullied or harassed the applicant thereafter. 

40. The evidence shows that throughout his employment, Ms Khanna supported the applicant, in particular in relation to his dealings with Ms Bush. From time to time the applicant acknowledged Ms Khanna’s assistance.  The Tribunal found Ms Khanna a very impressive witness.  The Tribunal finds that she dealt with the applicant very fairly and appropriately, including when she considered his complaints about Ms Bush and Mr Petrocco.  

41. The Tribunal does not accept the applicant’s claim that he was not provided with appropriate training for his APS5 position. The training that he received is usefully summarised in the Performance Overview document dated 8 November 2013 prepared by Ms Khanna and elaborated upon in her witness statement.

42. The Tribunal does not accept that the applicant’s performance in relation to mobile polling was “sabotaged” as he claims or that he was deprived of assistance.  The Tribunal finds that the decisions to transfer the applicant to the Parramatta office of the AEC and to remove him from the role of Divisional Returning Officer were reasonable administrative actions taken in a reasonable manner in respect of the applicant’s employment.  The applicant was unable to fulfil the requirements of his APS5 position, which included the APS6 role during the election, despite assistance he was provided. That is demonstrated by the communications set out in the above chronology.  The Tribunal does not accept the applicant’s claims that there was any impropriety by Ms Khanna or anyone else in the Penrith office or in the State office in relation to this transfer.  The Tribunal does not accept the applicant’s claim that Ms Khanna somehow used his failure to follow a particular procedure relating to his timesheet when he began at Parramatta to justify her decision “to transfer me, which was done in an extremely unreasonable manner”.  Ms Khanna discussed the applicant’s performance with Mr San Lauw.  The applicant was advised of both decisions in a meeting with Ms Khanna and Mr San Lauw on 30 August 2013.

1. The Tribunal finds that the decision to decline the applicant’s request for a transfer to the Parramatta office was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.  The placement at the Parramatta office was temporary, to give him broad election experience without management responsibility.   The applicant complained at one stage that he was doing the work of an APS 1 or 2 but also stated that he was involved, engaged and motivated there, which he was not in the Penrith office. The Tribunal does not accept the applicant’s claims about his mistreatment at the Penrith office or his criticisms of Ms Khanna at that time.  The work he was doing at the Parramatta office was clearly much less demanding than the work his APS5 position at Penrith.    

2. The Tribunal finds that the appraisal of the applicant’s performance during the meeting on 15 November 2013 was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. The applicant was well aware that his performance required improvement.  That is why he had been placed at the Parramatta office.  He was aware that there would be a review in relation to that placement. The Tribunal does not accept that the applicant required additional time to prepare for the meeting as he claimed or needed clarification of issues or that several items were “false and misleading”. Ms Khanna had sought guidance from Mr San Lauw and “HR”.  Careful consideration had been given to the applicant’s request and claims.  The Tribunal accepts Ms Khanna’s evidence that the purpose of the meeting was to “move forward and place steps to assist [the applicant] with his development”. 

3. The Tribunal finds that the implementation and conduct of an informal PIP was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.  Despite assistance being provided at the Penrith office before the applicant was placed in the Parramatta office and the general election experience during his placement at Parramatta, the applicant’s performance was deficient.  The informal PIP was designed to assist the applicant to develop the skills to fulfil his APS5 duties.  It began on 18 November 2013 and was to conclude on 20 December 2013, subject to the applicant demonstrating his ability to fulfil the requirements of his role. On 19 December 2013, Ms Khanna met with the applicant to review his performance and advised him that she had decided to extend the PIP for an additional eight weeks, recommencing on 28 January 2014, following his return from annual leave. 

4. Appropriately, the informal PIP was paused during the period that the Internal Return to Work Guidelines were in force from 19 February 2014 to 19 March 2014.  The Tribunal does not accept that the applicant was bullied and harassed during feedback meetings by either Ms Bush or Mr Petrocco.  

5. Ms Khanna described the IPP as follows. It is an annual performance appraisal the AEC conducts of its staff.  The IPP period is from July to June. A mid-cycle review is held, typically in February, when an employee is provided with the opportunity to discuss aspects of their development and performance, obtain feedback from their supervisor, and to discuss their development plans for the following period.  The supervisor provides a rating of the employee’s performance in respect of different responsibilities.

6. The Tribunal accepts Ms Khanna’s evidence about the IPP.  The applicant completed an on-line “self-assessment” of his performance before the meeting with Ms Bush on 26 February 2014. Ms Bush discussed the rating she proposed to give the applicant with Ms Khanna, before the meeting.  Ms Khanna agreed with the rating.  After the meeting, Ms Bush added her comments to the on-line PIP form and confirmed her rating of the applicant’s performance as “development required” in respect of three of his responsibilities. 

7. The applicant claimed in the email to Mr Orr in July 2014, that he realised he was the victim of a “huge conspiracy” when Ms Bush said at the end of this review that she had to rate him as development required otherwise she had not done her job properly.  Assuming that Ms Bush did make that comment, it is not evidence of a “huge conspiracy” against the applicant.  It was her view of what was necessary to fulfil her role in the IPP process as his supervisor.

8. The Tribunal finds that the IPP mid-year review was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.  It does not accept the applicant’s criticisms of that review because it does not accept that his beliefs about his ill-treatment by Ms Bush are well-founded.  It does not accept that he has been bullied or harassed or treated unfairly, vindictively or malignantly or that he has been the subject of a vindictive conspiracy as he claims.  It does not accept that his evidence is reliable for the reasons given earlier in this decision. 

9. It follows from the above consideration that the Tribunal finds that the decision to refuse the applicant’s request to transfer to another place was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. 

10. For the above reasons, the applicant has not suffered an injury as defined in s 5A of the SRC Act. The Tribunal affirms the decision under review.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[sgd].....................................

Associate

Dated: 18 January 2017

Date(s) of hearing:	27 and 28 July 2016
Applicant:	In person
Counsel for the Respondent:	K Blackford Slack
Solicitors for the Respondent:	P Snell, Lehmann Snell Lawyers