Amanda Hay and Comcare
[2014] AATA 325
[2014] AATA 325
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2186
Re
Amanda Hay
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 27 May 2014 Place Brisbane The decision under review is set aside. The Tribunal decides in substitution that Comcare is liable for the applicant’s claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
..........................Sgd..........................................
Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Applicant diagnosed as suffering adjustment disorder with symptoms of anxiety – Date of onset agreed between parties – Respondent argues the condition does not meet legislative definition of ‘injury’ – Distinction between matters connected to employment and matters of an operational nature – Tribunal not satisfied that meeting concerned matters connected to applicant’s employment – Legislative exemption does not apply – Reviewable decision set aside – Decided in substitution that respondent is liable for the applicant’s claim.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1); 5A(2); 14
CASES
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
REASONS FOR DECISION
Senior Member Bernard J McCabe
27 May 2014
This case is about reasonable administrative action within the meaning of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).
Ms Amanda Hay suffers from psychiatric symptoms that she claims arose out of the circumstances of her workplace. Comcare, the respondent, agrees:
·Ms Hay has been properly diagnosed as suffering from adjustment disorder with symptoms of anxiety;
·the date of onset was 6 September 2010, while she worked for the Child Support Agency; and
·the applicant’s employment at the Child Support Agency made a significant contribution to the condition.
Notwithstanding these concessions, Comcare says it is not liable for Ms Hay’s condition because it does not meet the definition of injury in s 5A. While a psychiatric condition would ordinarily qualify as an injury, Comcare relies on the exemption that applies to conditions that are “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment”: s 5A(1). Comcare says the exclusion clause is applicable here because the event which set off Ms Hay’s condition was an interaction with a manager. On Comcare’s case, the manager was speaking to Ms Hay about aspects of her performance.
The applicant denies the interaction with the manager amounted to administrative action. She says the discussion related to operational matters: it was not “action…in respect of the employee’s employment”. She goes on to argue that even if the interaction did amount to administrative action, it was not “taken in a reasonable manner” because the manager handled the situation in an unnecessarily confrontational manner.
I am satisfied the applicant’s claim should succeed. I explain my reasons below.
THE APPLICANT’S WORK HISTORY
Ms Hay is an experienced public servant who has worked in a variety of roles in a number of public sector organisations. She has also spent time working in the private sector. She commenced employment with the Child Support Agency on 30 April 2007. She was appointed at the APS-6 level (ie the most senior level below the executive level). She began doing compliance work focusing on cases where, amongst other issues, there was a question over whether a customer had the capacity to pay child support. She was transferred to a new team called the Specialised Investigations Unit in 2008. She was a special investigator and her team leader was Mr Garry McEwan.
Mr McEwan had been with the Department of Human Services since 1996. He joined the department after he was discharged from the Royal Australian Air Force (RAAF). He had been with the RAAF for 20 years and retired as a senior non-commissioned officer.
There were numerous hints in the evidence suggesting Mr McEwan and Ms Hay had a difficult relationship almost from the beginning. The applicant said in her evidence that Mr McEwan had poor people management skills, and that he was particularly poor at giving positive feedback. She referred to instances of bullying of other staff and favouritism. She alluded to his experience as a non-commissioned officer in the RAAF as if to suggest Mr McEwan thought he was still in the services where a more robust approach to human resource issues was thought to be the norm.
Ms Hay said she was not afraid to provide feedback to Mr McEwan on his performance. In October 2009, Ms Hay told Mr McEwan the team was suffering from low staff morale. She raised a number of specific concerns about the management of the office.
Mr McEwan responded with an informal investigation of his own. He spoke to individual staff members about the matters raised by Ms Hay. The results of his investigation were set out in an email he sent to Ms Hay on 8 October 2009 (Exhibit 1 at pp 166-168). Part of his response to the matters raised by Ms Hay was to ask Ms Hay and another staff member to swap desks. (This decision was apparently taken as a specific response to
Ms Hay’s complaint that another case officer who sat adjacent to her had been ‘listening in’ to her calls.) Ms Hay said her new workstation was much less desirable and interpreted the move as punishment for having spoken up. The change of desks clearly rankled: in her oral evidence, she referred to being moved to “the naughty desk”.
She complained of being socially isolated from the team.In her written statement (Exhibit 4 at p 3), Ms Hay criticised the inquiries Mr McEwan had made. She said it was predictable staff members would not speak up about the matters she had raised. When Mr McEwan told Ms Hay of the results of his investigation and his proposed response and indicated he would say “something” to the team, she recalls suggesting he “could try telling them the truth”.
I was provided with a copy of an email exchange between Mr McEwan and Ms Hay dated 13 October 2009 (Exhibit 1 at p 169) incorporating a draft Mr McEwan proposed sending to all of the other staff in the office. The draft referred to the fact of the allegations and the discussions that had taken place to address them – and included the news of the desk re-allocation. Mr McEwan asked Ms Hay for her comments on the draft and she responded a few minutes later with an email saying “Sounds fine to me.”
That response is difficult to reconcile with Ms Hay’s evidence about her attitude to her new desk allocation. She said in her written statement that she thought she had no choice but to acquiesce, although she added she did object to being moved (albeit that the objection is not included in her email): Exhibit 4 at p 3.The applicant said she informed Mr McEwan in late July 2010 of her plans to take extended long service leave in the near future. She said she was considering retirement.
(I note she had been experiencing health issues.) In her statement (Exhibit 4 at p 4), she suggested the disclosure to Mr McEwan spurred him to become more aggressive towards her. She observed (at [26]):It is my belief that Mr McEwan was therefore aware that the opportunity for him to retaliate in relation to the issues I raised in September/October 2009 was running out.
This is extraordinary stuff. If it is an accurate description of Mr McEwan’s behaviour in the workplace, it would be a matter of serious concern. If it is untrue, the fact Ms Hay saw fit to make the allegation is also deeply troubling. In either event, Ms Hay’s oral and written evidence left me with the clear impression of an employee who did not respect or like her team leader. Her evidence suggests their relationship was occasionally testy but included instances of passive aggressive behaviour (the suggestion that Mr McEwan “try telling [staff] the truth” comes to mind) towards Mr McEwan – although I accept Ms Hay was not inclined to see her own behaviour in that light. While Ms Hay denied the suggestion of serious conflict around this time, I was left with the clear impression of an increasingly toxic relationship between Ms Hay and Mr McEwan.
Matters came to a head on 6 September 2010 at a hastily scheduled meeting between the applicant and Mr McEwan. I will discuss what occurred at the meeting in due course but I must first explain the background.
When Ms Hay was transferred to the Specialised Investigations Unit, she retained some involvement with several of her old cases where “capacity to pay” was an issue. She quickly disposed of all but one of the cases. She was still dealing with that case in March 2010. Mr McEwan spoke with her and said he wanted her to relinquish the case and focus on her work in Mr McEwan’s team. On 29 March 2010, Ms Hay wrote an email to the relevant manager about the case. The email was copied to Mr McEwan. The other manager responded with a request that Ms Hay hang onto the case until it was finalised. Mr McEwan agreed in a response dated 30 March 2010 although he added
“Amanda – please put very tight timeframes in place for this to happen – I want you out of this and concentrating on SIU matters as soon as possible”: Exhibit 5 at pp 7-8.The applicant and Mr McEwan had a monthly review meeting with Ms Hay on
20 May 2010. Amongst other things, they discussed the disposition of the case Ms Hay had carried over from her old posting. Mr McEwan sent an email that day (Exhibit 5 at p 9) recording his understanding of what remained to be done in relation to the case. The final paragraph read:Thanks Amanda – am particularly please [sic] with the help you are providing the team and of course you have achieved your target – well done!! (is that better than “good”) [Emphasis added]
I asked at the hearing whether Ms Hay thought Mr McEwan was being sarcastic in light of her earlier complaints to him that he did not give sufficiently fulsome positive feedback. She said she did not take offence at this odd remark.
Ms Hay responded to the email on 31 May. She annotated Mr McEwan’s email with information about what she had done. She provided an update to Mr McEwan on
6 August 2010 just before she went on leave: Exhibit 5 at p 11. She noted there had been some correspondence and indicated she could be contacted while on leave if there were any issues. There is no record of an immediate response from Mr McEwan. But
Mr McEwan was stirred into action by an email he received on 25 August 2010 from an officer in another section who said she had been contacted by a solicitor acting for one of the parties to the matter being dealt with by Ms Hay. The officer said the solicitor called after she could not get a response from Ms Hay in relation to a document the solicitor had provided. Ms Hay had not recorded the document on the information system when it arrived in accordance with ordinary practice. That procedural irregularity was causing some angst. She was also still “locked” on the file, which meant she was the primary officer.Mr McEwan sent an email to Ms Hay on 25 August 2010 enclosing the note raising the concerns that he had received from the other officer: Exhibit 5 at p 12. Mr McEwan was plainly surprised to learn Ms Hay was still “locked” on the file when he recalled he had told her in May to “get rid of this case”. He added “I apologise if I’ve got this wrong or have missed something but we need to talk about this.”
The applicant replied to Mr McEwan’s email when she returned from leave on
6 September 2010. The note is reproduced in Exhibit 5, p 14. It did not respond directly to Mr McEwan’s concern about why she remained “locked” on the file when she had been told some time before to wind-down her involvement. The note said the paperwork that was the subject of concern had been sent to the appropriate officers.That email response was plainly inadequate. It did not deal with Mr McEwan’s request for an explanation as to why the applicant was still “locked” on the file when he had earlier directed her to wrap-up her involvement. Yet in her statement Ms Hay suggested (at [29]) she thought her response had satisfied Mr McEwan and had no reason to believe Mr McEwan doubted the information she provided or would want to discuss the matter further – even though Mr McEwan’s next action, within twenty minutes of the exchange, was to call her into a meeting.
Ms Hay’s claim she thought she had dealt with everything to Mr McEwan’s satisfaction – and the suggestion she was taken completely by surprise by Mr McEwan’s request to “have a word” shortly thereafter – is difficult to accept. She is clearly an intelligent woman with extensive experience in the public service. She knew of Mr McEwan’s attitude towards her ongoing involvement in the other file. His concern at what appeared to be procedural irregularities was obvious. She must have known she had not provided an adequate response to his email. She must also have realised her note might appear contemptuous (especially when Mr McEwan was obviously embarrassed by the involvement of a manager from outside his team). In short, she knew she was in trouble and her response was not calculated to defuse the situation. Her professions of surprise in the witness box as to Mr McEwan’s attitude are difficult to credit.
What happened next is in dispute. Ms Hay’s recollection is summed up in her statement (Exhibit 4 at pp 5-6). She said Mr McEwan asked to “have a word with me” in a conference room adjacent to their workstations about twenty minutes after the email exchange had concluded. She said Mr McEwan did not suggest he was going to engage in a formal meeting or discuss performance issues. If he had done so, she explained, she would have asked for a support person and time to prepare. She explained how the meeting proceeded at [32]-[34]:
Mr McEwan preceded me into the conference room adjoining our desks and walked almost to the rear of the room. Mr McEwan did not switch on the lights for the room nor offer me a seat, contrary to normal courteous behaviour and in the interest of conducting any type of meeting, whether formal or informal[.] The room was dimly lit and the hallway light outside the room had a long history of not working.
I followed Mr McEwan into the room. He then turned on me and, without any preamble, commenced accusing me of blaming other people and deflecting in relation to the Child Support Agreement matter which cropped up whilst I was on leave. At no point did he raise the issues of my failure to record the Child Support Agreement on CUBA, use of my “personal” e-mail (there is no such thing as the e-mail address was allocated to me by CSA as indicated by my e-mail address) to communicate with a solicitor, or any other matter. He simply took the opportunity to berate me whilst trying to keep his voice under control, and would not listen to anything I had to say.
I attempted to apologise, however Mr McEwan was well beyond the point of listening or behaving in a rational manner. He simply took the opportunity to rant. There was no mention that the meeting constituted “informal counselling”. The entire incident took place while we were standing.
While Ms Hay said (at [33]) Mr McEwan was “trying to keep his voice under control” as he berated her, she also insisted (at [35]-[36]) Mr McEwan raised his voice and yelled at her. In cross-examination, she said she was upset but denied that she became agitated or angry. She insisted Mr McEwan did not give her an opportunity to tell her side of the story: when she spoke, she said he accused her of obfuscating and deflecting responsibility for what occurred. Ms Hay said in her statement she terminated the meeting and left the room while Mr McEwan remained behind for up to ten minutes – to compose himself following his extraordinary outburst, she surmised in her statement
(at [38]).
Mr McEwan does not dispute the basic details of what transpired at the meeting: he agreed in his statement (Exhibit 5) he asked Ms Hay to come into the meeting, and that the meeting was conducted standing up. He said that was appropriate given “my intention was to have an informal discussion about her apparent failure to hand over the case as directed and next steps”: at [27]. That specific recollection of the purpose of the meeting was consistent with the evidence of Mr Robinson, who was Mr McEwan’s supervisor. Mr Robinson recalled (in Exhibit 8, at [5]) Mr McEwan spoke with him shortly after the meeting with the applicant on 6 September 2010. Mr McEwan had reported the meeting – which he and Mr Robinson agreed in advance was to be held when Ms Hay returned from holidays – did not go well. Mr Robinson said he was surprised by what he was told of the applicant’s reaction “given my understanding that the meeting was really just Gary trying to resolve the situation.”
Mr McEwan also conceded in cross-examination that he did not have a clear recollection of all the details of what transpired. His account of the meeting in his evidence was reconstructed from contemporaneous notes he had made. He recalled in his statement at [26]-[30]:
It was not uncommon for me to go into the conference room to have private discussions with staff members about a range of things, including to discuss cases.
Amanda and I walked to the conference room together, which was just around the corner from our desks. Amanda went into the room first and walked about half way in. I followed her and closed the door. I don’t remember whether I turned the light on, but the room has windows so it was pretty light anyway. I can’t remember if I offered Amanda a chair, but recall that we both remained standing. This reflected that my intention was to have an informal discussion about her apparent failure to hand over the case as directed and next steps.
We were standing I think about 1.5 metres apart in the conference room and I explained to Amanda what I needed to speak to her about and what had happened while she had been away. I can’t remember the exact words that I used, but I did outline the situation and gave her some context before I started asking her questions about what had happened.
I then asked Amanda to explain why she was still involved in the case when she had told me she had made arrangements to hand it off. I remember Amanda saying to me that she had asked someone else to make the arrangements. I asked her not to deflect and told her that I held her responsible for handing over the case as directed.
I remember that Amanda became quite short and said something to the effect that I wasn’t listening to her. I think I said something to her like “ok tell me again” and again Amanda said that she understood that someone else was looking after that for her. I again asked Amanda not to deflect and at that point Amanda moved past me and out of the room. As she left the room she turned and said words to the effect “don’t tell me not to deflect”. I do not recall Amanda apologising, or attempting to apologise, at any point during the meeting.
In cross-examination, Mr McEwan denied he was infuriated by the inadequacy of
Ms Hay’s email response to his earlier request for an explanation as to what had transpired in relation to the file. He also denied that he raised his voice at any point during the meeting – but recalled Ms Hay raised her voice as she stormed out. He agreed he used what I would describe as an exasperated tone when he urged Ms Hay not to deflect responsibility for what had occurred onto other officers.
Mr McEwan suggested the meeting lasted no more than five minutes. He was unsure whether he left the meeting room immediately after the applicant, or if he remained behind for a short while as he considered what to do in light of Ms Hay’s reaction. Interestingly, he noted in his statement (at [33]):
I wasn’t particularly surprised by Amanda’s reaction because she can be a challenging person to deal with and she had raised issues with me as her manager in the past. I wasn’t particularly offended by the way Amanda reacted, but was more concerned that the professional relationship was difficult to manage. At this point I wasn’t aware how upset Amanda had become.
Notwithstanding that insight, Mr McEwan said he thought it was appropriate to speak with Ms Hay again about twenty minutes after she left the meeting when they had both returned to their desks. That was almost certainly a mistake. He recalled in his statement (at [34]-[35]) that he suggested to Ms Hay they had not achieved resolution and it was only then he realised how upset she had become. He said he did not pursue the conversation any further at that point. He recalled receiving emails from Ms Hay a short while later providing some further explanation for what had happened with the file in question (Exhibit 5, pp 18-19) and explaining she was taking leave (Exhibit 5, p 20).
Two other witnesses gave evidence about the meeting. They were outside the meeting room, so they were only able to describe what they heard through the walls and what they observed as the meeting concluded and Ms Hay departed. Mr North, an employee in the unit, said in oral evidence that he heard Ms Hay say in an upset voice “I’m sick of this!” as she exited the meeting room. He had nothing else of substance to add. Mr Dufficy, another employee who worked alongside Ms Hay, also gave oral evidence at the hearing. A summary of notes from an interview of Mr Dufficy conducted by a workplace investigator was also tendered by Comcare. Mr Dufficy is recorded telling the workplace investigator that he could hear raised voices – not just one voice - coming from the room during the meeting which went on for approximately 20 minutes. Ms Hay said something to Mr McEwan as she walked out of the room. He did not hear the exact words but commented “it was not in a pleasant tone…it appeared an aggressive tone”. He added
Ms Hay returned to her workstation which was alongside his own and reported “Gary had yelled at her”: Exhibit 2 at p 116. He also said morale was good in the workplace and that he did not observe Mr McEwan behave inappropriately towards Ms Hay.
Mr Dufficy resiled from his remarks to the investigator once he was in the witness box. He did not dispute that the remarks in the statement were accurately attributed to him. Upon reflection, he declined to characterise Ms Hay’s tone as aggressive, preferring to describe her as upset. He suggested he heard just one raised voice.
It is difficult to know what to make of Mr Dufficy’s volte face. It seems Mr Dufficy has his own problems with Mr McEwan. That much is apparent from an email from
Mr Dufficy to the applicant (annexure AJH-04 to Exhibit 4) that describes Mr Dufficy’s complaints about Mr McEwan’s behaviour. Given the inconsistencies in Mr Dufficy’s evidence were not satisfactorily explained and in light of the fact he apparently has his own axe to grind in relation to Mr McEwan, I do not think I can rely on any part of his account of what transpired at the meeting or in its aftermath.
I generally prefer the evidence of Mr McEwan over that given by Ms Hay in relation to the events of 6 September 2010. Ms Hay struck me as being prone to exaggeration – her allegation that Mr McEwan was determined to retaliate against her before she could slip from his grasp into long service leave was perhaps the clearest example of that proclivity. There is simply no coherent evidence of Mr McEwan conducting some sort of wide-ranging vendetta against Ms Hay, although even he acknowledged in his statement that she was difficult to manage. And she was difficult: she did not comply with directions and she was evasive in the way she dealt with the file that she was managing on behalf of another section. She was also prone to being argumentative and prickly: her suggestion in her statement that she told Mr McEwan he “could try telling [staff] the truth” about the outcome of his informal investigation must have rankled, and her complaint about being exiled “to the naughty corner” suggests she was not beyond childish behaviour. Her contempt for Mr McEwan was obvious from her tone in the course of cross-examination.
While I generally prefer the evidence of Mr McEwan about the meeting – and in particular do not accept he ranted or yelled or berated Ms Hay – I am satisfied his tone was not completely clinical and measured. It was obvious from his evidence in the witness box (and from the tone of his email communication of 25 August 2010: Exhibit 5 at p 12) that he was frustrated by Ms Hay’s behaviour. It may be that frustration was amplified by the fact he found Ms Hay to be a difficult person to manage. I am satisfied from his oral evidence in particular that he used an exasperated tone that suggested he had no truck with Ms Hay’s obfuscation. While I accept he did not lose control or behave badly towards Ms Hay, it would be surprising if he were not obviously annoyed in the face of her behaviour. Of course, that conclusion rather raises the question of whether it was wise to approach Ms Hay as he did.
THE LAW
The parties have accepted the events of 6 September 2010 were the trigger for the onset of Ms Hay’s psychiatric symptoms. I have no reason to reject that conclusion.
The question, then, is whether the meeting on that date amounts to reasonable administrative action taken in a reasonable manner in respect of the employee's employment. Each part of the definition must be satisfied if the exclusion is to apply.
My first task is to determine whether there was administrative action…in respect of the employee’s employment. The requirement that the action be taken in respect of employment has been interpreted as imposing an important qualification and limitation on the kind of actions that are covered by the exclusion: see generally Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, 483 at [60] per Rares and Tracey JJ. Examples of activities that are “connected to employment” are set out in s 5A(2). They include reasonable:
(a)Appraisal;
(b)Formal and informal counselling;
(c)Suspension action; and
(d)Formal and informal disciplinary action.
The list of activities in s 5A(2) is not exhaustive, but it does point to the need to distinguish between matters connected to employment and matters of an operational nature. That distinction was discussed in the Full Court’s decision in Reeve: 473 at [30] per Gray J. I am bound to follow the same approach in this case.
I think the answer ultimately lies in the evidence of Mr McEwan (supported by
Mr Robinson) as to the purpose of the meeting on 6 April 2010. I have already noted
Mr McEwan said in his statement “my intention was to have an informal discussion about her apparent failure to hand over the case as directed and next steps”: Exhibit 5 at [27]. I also noted Mr Robinson said in his statement that it was his “understanding that the meeting was really just Gary trying to resolve the situation.” In other words, evidence presented by Comcare confirms the meeting was not about considering any sort of action in connection with Ms Hay’s employment. That might come later, but not until
Mr McEwan got to the bottom of what had occurred. The meeting appeared to go off the rails when Ms Hay was not inclined to cooperate in what was really still in the nature of an investigation. I would add that I am not satisfied the meeting could be characterised
as something that was done in connection with the sort of actions referred to in
s 5A(2)(a)-(d). Things had not yet reached that stage.
CONCLUSION
I am not satisfied the administrative action that triggered the applicant’s psychiatric condition was taken in connection with her employment. That means Comcare cannot rely on the exclusion in s 5A. In those circumstances I do not need to consider whether it was reasonable to take the administrative action, or whether that action was taken in a reasonable manner.
The decision under review is set aside. The Tribunal decides in substitution that Comcare is liable for the applicant’s claim under s 14 of the SRC Act.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ...........................Sgd..........................................
Associate
Dated 27 May 2014
Dates of hearing 20 & 28 March 2014 Counsel for the Applicant Mr S Gerber Solicitors for the Applicant E Law International Counsel for the Respondent Ms N Kidson Solicitors for the Respondent Australian Government Solicitor
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