Amanda Kosteski and Comcare
[2014] AATA 217
[2014] AATA 217
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2551
Re
Amanda Kosteski
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 14 April 2014 Place Sydney The Tribunal:
(1) Sets aside the decision under review and substitutes a decision that Ms Kosteski suffered an injury as defined in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) and that the Respondent is liable to the Applicant under s 14 of the SRC Act.
(2) Orders that the Respondent pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.
...........................[sgd].............................................
Deputy President RP Handley
Catchwords
COMPENSATION – definition of injury – excludes diseases or injuries resulting from reasonable administrative action taken in a reasonable manner – injury resulted from being told to return to a workplace where she perceived she had been bullied and harassed – employer on notice of perception – should have been clear to employer that insistence on a return to that workplace would likely result in an injury – not reasonable – decision set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 4(1), 14(1)
Cases
Drenth v Comcare [2012] FCAFC 86
Dunstan and Comcare [2012] AATA 567REASONS FOR DECISION
Deputy President RP Handley
Ms Kosteski has applied to the Tribunal for the review of a decision made by Comcare to refuse her claim for compensation on the ground that it was a result of reasonable administrative action carried out in a reasonable manner.
BACKGROUND
Ms Kosteski was born in 1973. She is married with three children, aged 12, 10 and 5. She has worked for the Department of Social Services (the Department) since 1995, and began working in Centrelink’s Business Integrity unit in Hurstville in December 2006.
Ms Kosteski took leave in 2008 for the birth of her youngest child. During her time off in 2008 her father passed away. She was also affected by the deaths and illness of others to whom she was close. Ms Kosteski returned to work in her position at APS4 level at the Hurstville office in mid-2010. On returning to work, Ms Kosteski experienced difficulties with her new managers. On 1 June 2010, she reported to her General Practitioner (GP), Dr Notte, that she was experiencing stress as a result of changes in the management of the Hurstville Business Integrity unit. Ms Kosteski reported that her manager was ‘on her back’, altering her work environment and reducing her hours.
In February 2011, Ms Kosteski transferred on a temporary basis to the Emergency Processing Team at the Centrelink Rockdale office. This was to assist in the processing of emergency payments following the 2011 Queensland and Victorian floods. During this time, she complained to staff at the Rockdale office of difficulties with her managers at the Business Integrity unit at Hurstville, and asked her manager at Rockdale if she could relocate to the Rockdale office on a permanent basis.
However, after only two weeks working at the Rockdale office, Ms Kosteski was told by her manager at the Business Integrity unit, Christina Hartup, to return to the unit. Ms Kosteski claims that on her return, and until September 2011, she was the victim of sustained bullying and harassment by Ms Hartup and her Director, Chris Westbury.
On 19 September 2011, Ms Kosteski commenced work in a temporary, higher duties (APS5) position as a Community Engagement Officer with Centrelink. She was based in a different building in Hurstville. Her Team Leader was Denis Williams whose office was in Darlinghurst. At the commencement of her new position, Ms Kosteski was made aware that the role would be temporary and short term, initially for three months. As it turned out, the position was extended and Ms Kosteski was employed in that role until 26 November 2012.
On 26 October 2012, Ms Kosteski was informed by Mr Williams and his Director, Vicki Bishop, that the funding for the position was to end. She was advised that, as a result, she would have to return to her previous position in the Business Integrity unit at Hurstville. This caused Ms Kosteski considerable anxiety. She told Mr Williams and Ms Bishop that she could not return to the Hurstville unit because of her treatment by Ms Hartup and Mr Westbury and that the prospect of doing so caused her significant stress. She said she would work anywhere else if she could.
Ms Kosteski attended an appointment with her GP, Dr Sylvia Ham, on 14 November 2012. Dr Ham diagnosed Ms Kosteski as suffering from depression and anxiety, and certified her unfit to work for a one week period. Thereafter, Ms Kosteski did not work for a period of approximately 11 months on the basis of medical certificates provided by her GP and other specialist advice provided to the Department. Ms Kosteski commenced a graduated return to work program on 16 October 2013 at Centrelink’s Rockdale office and has recently increased her part-time hours to 20 hours a week over four days.
On 21 December 2012, Ms Kosteski lodged a claim for workers’ compensation as a result of depression and anxiety. In her decision of 27 February 2013, a delegate of Comcare decided that Comcare was not liable to pay Ms Kosteski compensation. This was affirmed by a Review Officer in her decision of 29 April 2013. The Review Officer found that Ms Kosteski’s condition arose from being informed that she would return to work at the Business Integrity unit at Hurstville. She found that this was reasonable administrative action taken in a reasonable manner and, therefore, Comcare was not liable to pay compensation. On 31 May 2013, Ms Kosteski applied to the Tribunal for a review of this decision.
LEGISLATION AND ISSUES
The Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) governs claims for workers’ compensation by Commonwealth employees. Section 14 of the SRC Act provides that Comcare is liable to pay compensation for an injury suffered by a Commonwealth employee that results in incapacity for work. Section 5A(1) of the SRC Act defines an ‘injury’ as:
(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.
The Act provides guidance as to what constitutes reasonable administrative action. Section 5A(2) states:
(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.
Section 5B defines a ‘disease’:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; ...
that was contributed to, to a significant degree, by the employee's
employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or
a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
The word ‘ailment’ is defined in s 4(1):
(1) In this Act, unless the contrary intention appears ...
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
There is no dispute that Ms Kosteski suffered from a mental condition. The exact diagnosis of Ms Kosteski’s condition, however, varies across the medical reports provided to the Tribunal. Ms Kosteski has been diagnosed with Major Depression (Psychiatrists Dr Way and Dr Barrett diagnosed a Major Depressive Disorder), as well as Adjustment Disorder with Mixed Depressed and Anxious Mood (Psychiatrists Dr Smith and Dr Synnott). Notwithstanding the different diagnoses, there is no dispute that Ms Kosteski’s condition constitutes an ‘ailment’, and if it is found that the condition was contributed to, to a significant degree, by Ms Kosteski’s employment, the condition constitutes a ‘disease’ as defined in s 5B(1).
If the Tribunal is satisfied that Ms Kosteski suffered from a ‘disease’, it must decide whether her condition was caused by reasonable administrative action. The Applicant contends that Ms Kosteski’s condition was caused by her being told to return to her substantive position in the Business Integrity unit in Hurstville, against a background of her having complained about bullying and harassment by her managers there. Section 5A excludes liability for injuries that are caused by reasonable administrative action taken in a reasonable manner in respect of an individual’s employment. The Respondent contends that Ms Kosteski’s having to return to her position in the Hurstville unit was reasonable administrative action. The Applicant contends that the action was not reasonable because the Respondent was on notice that she was likely to suffer injury as a result.
Whether liability is excluded by s 5A(1) is dependent upon whether Ms Kosteski’s condition was ‘a result of’ reasonable administrative action. What is necessary is that the reasonable administrative action be an operative cause of the injury: Drenth v Comcare [2012] FCAFC 86, at [29]; Dunstan and Comcare [2012] AATA 567 [280]-[281]. If reasonable administrative action taken in a reasonable manner is an operative cause of Ms Kosteski’s condition, the section will operate to exclude all liability on behalf of Comcare to pay compensation with respect to the injury.
Finally, if the Tribunal is satisfied that Ms Kosteski suffered from a disease under s 5B, and not as a result of reasonable administrative action taken by Centrelink, it must decide whether the injury resulted in incapacity for work or impairment. Section 14(1) of the SRC Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
MS KOSTESKI’S EVIDENCE
Ms Kosteski provided statements dated 23 August 2013 and 23 March 2014 and gave evidence at the hearing.
Ms Kosteski said that she commenced work at the Centrelink Business Integrity unit at Hurstville in December 2006. She claims that she was bullied and harassed by Christina Hartup and Chris Westbury between approximately October 2010 and September 2011. She gives as examples being subjected to Ms Hartup “standing over me whist sitting at my desk”, being belittled and humiliated in team meetings, being interrogated about her personal life every six weeks when her part-time hours were reviewed, the reasons recorded for her personal leave not reflecting what was stated on the medical certificates, being subjected to persistent follow up calls when she was not at work seeking the reasons for her being on leave, and witnessing her Director use his hands in pretending to shoot a staff member who had asked a question at a meeting. Ms Kosteski also said that when she was acting in a leadership position, she witnessed Ms Hartup and Mr Westbury suggest that if staff did not do as asked, they would be shown “the door”, and making it clear that certain staff were to be targeted and then demonstrating this in meetings.
Ms Kosteski stated that she raised her concerns about Mr Westbury and Ms Hartup with their national manager Scott Brittan, reported bullying and harassment incidents to the Harassment Contact Officer for the Hurstville unit, spoke about the situation to her Team Leader, Peter Graham, and contacted Human Resources after the results of a staff poll and asked what was going to be done about it.
Ms Kosteski said she tried to find an alternative position elsewhere in Centrelink because of her experience in the Business Integrity unit. It was Mr Westbury who, at her request, agreed to her transfer to Rockdale on a temporary basis in February 2011 to work in the Emergency Processing Team. She said the friendly email she sent to Mr Westbury on 10 February 2011, after he had given his approval to the transfer, was because she was afraid he might put a stop to her transfer - she was scared of him. Ms Kosteski said she was unaware of any problem with the transfer until Ms Hartup informed her a few weeks later.
Ms Kosteski said at the meeting with Ms Hartup in Rockdale (on 25 February 2011), Ms Hartup put her in a room and interrogated her, and by the end of two hours she was almost hysterical. She hugged Ms Hartup at the end of their meeting because she was prepared to do whatever was necessary to get away. Ms Kosteski said, after the meeting with Ms Hartup, she consulted the Union as to her rights and thereafter insisted on a third party being present in all meetings with Ms Hartup. She also contacted Julie Devlin, her manager during her temporary transfer to the Rockdale office, to ask who had instigated the investigation into her working at Rockdale. She said Ms Devlin’s account of what happened is very different to that of Ms Hartup.
With regard to her working hours, Ms Kosteski said she had worked previously from 7.00 am to 2.30 pm with 30 minutes for lunch on five days a week. She could not work any later than 2.30 pm because of her child care responsibilities. Her three previous managers before Mr Westbury and Ms Hartup never had any problems with this arrangement. Ms Kosteski said she was required to have a meeting to discuss her hours every six weeks during which she would have to explain why she wanted to work those hours. She found this stressful and invasive. Ms Hartup would not allow her to start before 7.45 am with the result that she lost 45 minutes paid work each day. She was also told she could only do flex time after 3.00 pm and not before 7.45 am which effectively denied her an opportunity to work flex time which was available to all other staff.
In her supplementary statement dated 23 March 2014, Ms Kosteski detailed intimidatory conduct by Mr Westbury, including his swearing at meetings, pretending to shoot a staff member by imitating a shotgun action, and invasion of her personal space.
Ms Kosteski spoke about her working as a Community Engagement Officer from 19 September 2011. Initially, this was for three months, but the position was extended every three months thereafter. Towards the end of each three month period, Ms Kosteski would speak with her Team Leader, Denis Williams, to ask if it was likely that the position would be extended. If the position was to end, she needed time to look for alternative employment so that she would not have to return to the Business Integrity unit at Hurstville. In 2012, the position was advertised as an ongoing position for which Ms Kosteski applied. On 26 October 2012, she met with Mr Williams and his Director, Vicki Bishop, to discuss what was happening. They told her that the position was “being pulled” due to a lack of funding. Ms Kosteski said she was very upset and told them that she could not go back to Hurstville due to the bullying and harassment she had experienced and the resulting stress and anxiety: “Vicki and Denis advised me that they would make sure that I do not have to return to that horrible place. I felt relieved about the assurance from them.” She made a note of what was said at this meeting in her diary which she produced for the purpose of these proceedings.
Ms Kosteski said that, after a couple of days, she phoned Mr Williams to find out what was happening. He told her to phone Ms Bishop. Ms Kosteski phoned Ms Bishop and left messages asking her to phone her, but Ms Bishop did not return the calls. Ms Kosteski became increasingly worried and anxious. On 8 November 2012, Ms Kosteski sent Ms Bishop an email saying that she was feeling very stressed and anxious about possibly having to return to the Business Integrity unit and was happy to go anywhere in the network, to any team, to avoid this. Ms Bishop did not respond. On Monday 13 November 2012, Ms Kosteski phoned her doctor for an appointment because she was “extremely anxious, stressed: I was not sleeping or eating and was very worried about my future.” The first available appointment was the next day. She saw her doctor on 14 November 2012 and her doctor gave Ms Kosteski a medical certificate stating that she was not fit for work.
On 15 November 2012, Ms Kosteski drove to Darlinghurst to see Mr Williams. He said she would need to speak with Ms Bishop about where she was to be placed. He phoned her and Ms Kosteski then spoke to Ms Bishop in a private room in the Darlinghurst office. Ms Bishop said Ms Kosteski would have to return to the Business Integrity unit at the end of her placement on 26 November 2012. Ms Kosteski said she was shocked, having believed that they would find her alternative employment. She felt faint and unwell, having not slept or eaten properly. While still at the Darlinghurst office, she completed an incident report on her laptop computer, gave the medical certificate to Mr Williams, and left. She did not return to work thereafter. She said that by three or four days after the meeting with Mr Williams, she had lost nearly 20 kgs.
Ms Kosteski said that, initially, she heard nothing further about her employment. She received a letter from a rehabilitation co-ordinator about a return to work which she interpreted as meaning a return to work at the Business Integrity unit. Centrelink then arranged for her to see a psychiatrist, Dr Synnott, for an assessment. Ms Kosteski remembers Dr Synnot telling her that she was suffering from an anxiety disorder and should not be returned to her old workplace. In the meanwhile, her health deteriorated because of thoughts of having to return to the Business Integrity unit where she would be harassed and bullied. Ms Kosteski was not offered any alternative position until 15 January 2013 when she was advised of a possible placement at the Child Support Agency.
Ms Kosteski said her GP referred her to a psychiatrist, Dr Neil Jayasingam, whom she saw on 4 March 2013. She saw him two or three times but could not afford to continue seeing him. Ms Kosteski said she tried taking Cipramil (an anti-depressant) but this gave her severe headaches and so she stopped taking it. At Dr Jayasingam’s suggestion, she also saw a psychologist, Ms Fearns, but discontinued this as she could not afford it. Instead, she was counselled informally by a social worker friend. She is not currently taking any medication.
In mid-October 2013, Ms Kosteski started a graduated return to work program at Centrelink’s Rockdale office. She has recently increased her hours from 15 hours a week over three days to 20 hours a week over four days.
DENIS WILLIAMS’ EVIDENCE
Mr Williams provided a statement dated 12 December 2013 and gave evidence at the hearing. He stated that, at the relevant time, he was Team Leader of the Sydney area community team. Ms Kosteski joined his team on a temporary basis on 19 September 2011 and worked in that position for over 12 months. He said: “Ms Kosteski’s work performance was excellent. I had no problems with her at all.” He noted that she established a network for community engagement operations in Sutherland Shire. She told him of her concerns of returning to the Business Integrity unit at Hurstville on “numerous occasions”, of the authoritarian attitude of her managers, and of their harassment of staff.
Mr Williams stated that he wanted Ms Kosteski to stay in his team and did not want her to return to the Business Integrity unit. He discussed finding Ms Kosteski another position with his manager, Ms Bishop, and “Ms Bishop was to discuss this at a management level and I understand that this was not possible and we were told she had to return to Hurstville Business Integrity.” Mr Williams said he was at the meeting with Ms Bishop and Ms Kosteski on 26 October 2012 when he and Ms Bishop still hoped the decision that Ms Kosteski had to return to Hurstville would be changed: “At the time Ms Kosteski was very unsettled about going back to Business Integrity and she appeared to be upset and nervous … she said she would do any other job rather than return to Business Integrity.”
At the hearing, Mr Williams told me that he would not have ‘promised’ to find Ms Kosteski an alternative position because it was not a matter for him to decide. He did say that he would try and find her an ongoing position elsewhere, and he contacted a few regional managers for that purpose. However, there was an “edict’ from the Chief Executive Officer of Centrelink that there was to be no hiring of staff and that where officers were seconded or acting in temporary positions, they should be returned to their nominal positions.
CHRISTINA HARTUP’S EVIDENCE
Ms Hartup provided a statement dated 11 February 2014 and gave evidence at the hearing. At the relevant time, she was the manager of Ms Kosteski’s Team Leader, and responsible to her Director, Chris Westbury. She was transferred to the Business Integrity unit at Hurstville in September 2010, at the request of Mr Westbury, who wanted her to address problems with the unit, in accordance with the Enterprise Agreement. Ms Hartup said she was aware at that time that the Business Integrity unit was the subject of anonymous complaints by staff of bullying and harassment, and that it had performance issues and general cultural problems. She was not aware of any problems involving Ms Kosteski.
Ms Hartup said that towards the end of 2011, an independent officer was appointed to investigate the culture of the unit and the behaviour of its staff. About December 2011, all staff, including management, were invited to meet with the investigating officer “for a chat”. The investigating officer would have finalised the report in early 2012. Ms Hartup said she has not seen the report or even a draft. She would have expected to at least get a copy of any recommendations. She checked with her current Director about this in the few weeks prior to the hearing but he knew nothing of the outcome.
Ms Hartup stated that Ms Devlin phoned her on Monday 21 February 2011 to raise concerns about how Ms Kosteski had become a part of her Emergency Processing team, noting that Ms Kosteski had told her that she had issues with the management of the Business Integrity unit at Hurstville and that she had asked to remain permanently at Rockdale. Ms Hartup said she was aware Ms Kosteski was going to work at Rockdale – Mr Westbury had told her he had discussions with Ms Kosteski about her doing so. However, Ms Hartup does not know who actually approved Ms Kosteski’s transfer to Rockdale. After the phone call from Ms Devlin, Ms Hartup discussed with Mr Westbury how she should approach a meeting with Ms Kosteski and it was agreed Ms Hartup would raise Ms Kosteski’s stated concerns about the management of the Hurstville unit.
On Friday 25 February 2011, Ms Hartup had a meeting with Ms Kosteski which lasted several hours. Ms Hartup stated that during this time, Ms Kosteski “seemed to go through many emotions, from at times chatting normally to crying”. However, they went for coffee afterwards and on leaving, Ms Kosteski hugged her and it appeared to Ms Hartup that the meeting ended on a friendly note.
Ms Hartup said that when she first worked in the Business Integrity unit at Hurstville, her relationship with Ms Kosteski appeared to be friendly and, while Ms Kosteski was acting in a higher duties position, she had helped Ms Hartup with some training. However, on Ms Kosteski’s return from Rockdale, her behaviour towards Ms Hartup was “less than friendly” and, when they had meetings, Ms Kosteski required a support person to be present on all occasions. In a couple of such meetings, Ms Kosteski demonstrated that she was emotionally upset.
Ms Hartup denied having bullied or harassed Ms Kosteski, having questioned her work daily or weekly, having asked her to remove things from her desk, or having encroached on her personal space. In cross-examination, Ms Hartup acknowledged that her sitting on the edge of Ms Kosteski’s desk might be seen as intimidating. She also acknowledged that while, initially, she went to team meetings organised by the team leaders, she stopped doing so when it was reported to her that her attendance made staff feel uncomfortable and unable to speak freely.
Ms Hartup said that client contact hours were 8.00 am to 5.00 pm and because a lot of staff were starting at 7.00 am, they asked some staff to change their hours so that they started a little later. Ms Hartup denied that Ms Kosteski had been refused flex time and could not recall the specific situation with regard to Ms Kosteski’s starting time which she said would have been the responsibility of her team leader. Ms Hartup recalled Ms Kosteski asking for records of her personal leave to be amended to remove some of the detail recorded. After consulting with the team leaders who had made the records, Ms Hartup agreed to amend one record. In other instances, the team leaders concerned said the records were accurate and they were therefore not amended.
While Ms Kosteski was acting as a Community Engagement Officer, Ms Hartup said she contacted Mr Williams about Ms Kosteski’s position towards the end of each temporary engagement period because Ms Kosteski would need to return to the Hurstville unit if the position was not extended. Mr Williams reported that Ms Kosteski was doing a good job in his team. Ms Hartup was aware that Ms Kosteski was unhappy with her managers at Hurstville and was “wary” of Ms Kosteski returning there, although, because work at the Hurstville unit had changed while Ms Kosteski had been away, she would need to undertake some further training.
THE MEDICAL EVIDENCE
The Expert Evidence
Dr Raymond Way, Psychiatrist, provided a report dated 17 October 2013 at the request of the Applicant and Dr Selwyn Smith, Psychiatrist, provided a report dated 2 October 2013 at the request of the Respondent. Dr Way and Dr Smith gave evidence concurrently on the second day of the hearing having had a brief discussion beforehand to identify areas of agreement and disagreement. Dr Way diagnosed Ms Kosteski as suffering from a Major Depression. Dr Smith diagnosed an Adjustment Disorder with mixed depressed and anxious mood, partially resolved. Dr Way noted that although their diagnoses are different, there is no disagreement that Ms Kosteski had symptoms of depression and that work-related stressors precipitated her condition. Dr Way said a perception was created in her mind – she felt threatened and scared, and she could not contemplate returning to her position in the Business Integrity unit at Hurstville. After having been employed for over 17 years, she felt she deserved greater consideration. She was also worried about how, if she was forced to resign from her position, this would affect her financially.
Dr Smith commented that his and Dr Way’s diagnoses are on a continuum and there is a fine line between them. He said that people often experience stress when there is work-related conflict. However, Ms Kosteski’s symptoms went beyond stress – she experienced psychological symptoms of significance in relation to the conflict. She did not want to return to what she felt was a hostile environment. Her symptoms were a direct reaction to what was happening in the workplace over which she felt she had no control.
Dr Way said the symptomatology of those with a Major Depression is very variable and can fluctuate in severity. He added that a Major Depression and an Adjustment Disorder can also sometimes co-exist. Dr Way said that, when he assessed Ms Kosteski, he was concerned about the severity of her depression and suicidal ideation. He described the treatment Ms Kosteski had had as “sparse”. It appears that she could not afford this as a result of a lack of support from her employer. He said her condition warranted more assertive treatment, both psychotherapy and of a pharmacological nature.
Dr Way expressed the view that the workplace handling of the situation played a significant role in her condition. Both doctors agreed that had there been appropriate intervention earlier, her condition would have resolved more quickly.
In his report, Dr Smith said, in his opinion, Ms Kosteski’s psychiatric condition arose on 13 November 2012 when she was advised she had to return to her previous position at the Business Integrity unit at Hurstville.
Other Medical Evidence
Ms Kosteski’s GP, Dr Joy Mowbray, referred her to a psychiatrist, Dr Jay Jeyasingam, at the Brain and Mind Clinic. In a letter to Dr Mowbray dated 4 March 2013, Dr Jeyasingam identified Ms Kosteski’s symptoms: hyperarousal in response to anything associated with the workplace, weight loss due to loss of appetite (17 kgs in the last three months), impaired sleep (including nightmares), pervasive anhedonia (inability to experience pleasure from activities usually found enjoyable), and suicidal ideation. He diagnosed her condition as “acute stress disorder and major depression with suicidal features”. Dr Jeyasingam referred Ms Kosteski to a psychologist for counselling and recommended medication.
Ms Kosteski was also assessed for the Department of Human Services by Dr Ingliss Synnott, Psychiatrist, on 21 December 2012. In a report dated 31 December 2012, Dr Synnott diagnosed an “Adjustment Disorder with anxiety and depressed mood” and recommended that she commence a graduated return to work program as soon as possible. He noted that “any attempt to return her ‘Business Integrity’ (and work with CH and CW) would inevitably fail – with a flare of her psychological symptoms and she would not maintain employment.”
Ms Kosteski was also assessed for the Department by Dr M Barrett, Psychiatrist, on 18 April 2013 and again on 15 August 2013. In a report dated 28 April 2013, Dr Barrett diagnosed a “Major Depressive Disorder” and recommended against a return to work program at that time. In a later report, dated 23 August 2013, Dr Barrett diagnosed “Panic Disorder with Agoraphobia, complicated by Major Depressive Disorder”. While Ms Kosteski was currently not fit for her usual hours and duties, he recommended that a rehabilitation program such as a graduated return to work be trialled with her.
The documents provided to the Tribunal include a report prepared for Comcare by a GP registrar at Peakhurst Family Medical Centre, Dr Sylvia Ham, dated 23 January 2013. Dr Ham stated Ms Kosteski first consulted her on 14 November 2012, reporting symptoms consistent with depression. Dr Ham referred Ms Kosteski to a psychologist, Ms Gareth Wild, but also saw Ms Kosteski again on 22 November 2012 and 20 December 2012, noting that she had symptoms consistent with Major Depression. Ms Kosteski did not, apparently, follow up the referral to Ms Wild, whom she had seen previously on two occasions in 2010 when Ms Kosteski was experiencing both family and work problems.
The Tribunal has also been provided with NSW WorkCover medical certificates for Ms Kosteski and Clinical Notes for Ms Kosteski from Peakhurst Family Medical Centre.
APPLICANT’S SUBMISSIONS
Mr Anforth, for the Applicant, said the injury occurred as a result of Ms Kosteski being told that she had to return to work at the Business Integrity unit at Hurstville. It was not about her not getting a transfer or retaining a benefit: it was about her wanting to avoid going back to the Business Integrity unit. The focus of the matter should therefore be on the events of 26 October 2012 to 15 November 2012. The evidence as to Ms Kosteski’s harassment and bullying is in relation to the period prior to 19 September 2011, after which Ms Kosteski was transferred to the temporary position of Community Engagement Officer. Mr Anforth said the historical background is relevant in order to establish that there was a basis for Ms Kosteski’s perception that she was bullied and harassed by her Business Integrity unit managers and that her perception was genuine.
The Department was on notice that Ms Kosteski held this perception. This was a relevant consideration in pressing her return to the Hurstville unit which caused her psychological injury. The relevant issue in this case is whether, in the light of her perception, the direction to return to the Hurstville unit was a reasonable administrative action.
Mr Anforth contended that the Department was on notice of the obvious risk of insisting on Ms Kosteski’s return to the Hurstville unit as a result of the complaints she had made previously about her treatment in the unit, including in connection with the events surrounding her being sent back to the Hurstville unit by Ms Hartup after two weeks working at the Rockdale office. The fact that Ms Kosteski insisted that any contact with Ms Hartup after the Rockdale incident only be in the presence of a witness was indicative of the poor state of their relationship. Ms Kosteski complained to a number of other Centrelink managers about her treatment, including to Mr Williams and Ms Bishop, and it should have been obvious from the medical certificate she provided dated 14 November 2012 that she would suffer an injury if there was an insistence that she return to the Hurstville unit. The fact the Department was on notice goes to the reasonableness of its administrative action. The only person who responded at the relevant time was Mr Williams who tried to find Ms Kosteski an alternative position but lacked any authority to take steps to otherwise address the problem.
Mr Anforth said that by 15 January 2013, when steps were taken to redeploy Ms Kosteski, it was too late. What followed after then is irrelevant to Ms Kosteski’s claim.
RESPONDENT’S SUBMISSIONS
Miss Henderson, for the Respondent, said that any perception must have some grounding in reality. The Respondent denies any bullying or harassment and notes that Ms Kosteski was promptly offered alternative employment outside the Hurstville unit (in January 2013).
Miss Henderson said that what occurred in this case was that, at the end of a temporary transfer, Ms Kosteski was required to return to her substantive position in the Hurstville unit. No specific decision was made by Ms Hartup or Mr Westbury about her return. There was nothing unreasonable about Mr Williams’ or Ms Bishop’s conduct. At the meeting on 26 October 2012, they said they would do what they could to find Ms Kosteski an alternative position. Mr Williams gave evidence that he did not make a ‘promise’ to find her an alternative position but he did try to do so.
When the Department received Ms Kosteski’s medical certificate on 15 November 2012, it investigated her fitness to return to work, appointing a rehabilitation case manager to assist with her return to work and sending her for specialist assessment by Dr Synnott on 21 December 2012. Miss Henderson said that the file documents show that Ms Kosteski’s employer followed the correct procedure – there was no lack of proper attention - noting that, on 15 January 2013, Ms Kosteski was asked to make contact regarding a placement in the Child Support Agency. Thereafter, Ms Kosteski’s capacity for work was assessed by Dr Barrett in April 2013, when he found her incapacitated for work, and again in August 2013, following which she commenced a graduated return to work program on 16 October 2013 at Centrelink’s Customer Service Centre at Rockdale.
Miss Henderson noted the range of diagnoses for Ms Kosteski’s condition and submitted that the Tribunal should accept Dr Smith’s diagnosis of an Adjustment Disorder with mixed depressed and anxious mood.
In terms of the SRC Act, Miss Henderson drew attention to s 5A(2) which states that reasonable administrative action is taken to include, amongst other things, failure to obtain a transfer or retain a benefit. Here, Ms Kosteski failed to get a transfer into the permanent position in which she had been acting when funding was withdrawn or, alternatively, failed to retain the benefit of working in that position.
DISCUSSION
There is no dispute that Ms Kosteski suffered from a mental condition, albeit that there is a difference between the parties as to the exact diagnosis. As detailed above, two psychiatrists diagnosed Ms Kosteski as suffering from a Major Depression, while two others diagnosed an Adjustment Disorder with Mixed Depressed and Anxious Mood. However, Dr Smith, who made the latter diagnosis, confirmed that these diagnoses are on a continuum. In my view, it is sufficient for me to find that Ms Kosteski suffered from depression arising out of her employment with Centrelink.
I found Ms Kosteski to be a credible witness and, for example, I accept that by about July or August 2011, she felt threatened and scared in her dealings with Ms Hartup and Mr Westbury and consequently acted in a way that would permit her escape from that situation.
I am satisfied from the evidence that Ms Kosteski’s condition was contributed to, to a significant degree, by her employment. She perceived that she was being harassed and bullied by her managers at the Business Integrity unit in Hurstville. In light of this background, Ms Kosteski developed anxiety and depression as a result of her being told she had to return to work in the Hurstville unit after her secondment into the temporary position of Community Engagement Officer. I note Mr Williams described her performance in this position as “excellent” and that he wanted to keep her working in his team. The injury appears to have occurred on 15 November 2012 when Ms Kosteski was informed by Ms Bishop that she had to return to the Hurstville unit.
Thus, Ms Kosteski’s condition constitutes a disease as defined in s 5B(1) of the SRC Act. The critical question is whether her disease is excluded from the definition of ‘injury’ in s 5(1) of the Act by reason of it having been “a result of reasonable administrative action taken in a reasonable manner” in respect of her employment. In Ms Kosteski’s case, this turns on whether the Department was on notice that insisting on Ms Kosteski’s return to the Hurstville unit could result in her developing such a disease.
It is clear from the background to this matter, including the allegations of harassment and bullying made by Ms Kosteski against her Hurstville managers, that Ms Kosteski made her concerns known to a range of personnel within Centrelink. These included those, like Ms Hartup, who were the subject of the allegations, and with whom, after her return from the temporary transfer to the Rockdale office, Ms Kosteski had refused to meet except in the presence of a witness. They also included her Team Leader at the Business Integrity unit, Mr Graham, and others whom Ms Kosteski states she had made aware of the allegations of harassment and bullying, such as the National Manager, Scott Brittan, the Harassment Contact Officer, the Union representative, and someone in Human Relations. Most particularly, she told her Team Leader for her temporary position as Community Engagement Officer, Mr Williams, and his manager, Ms Bishop, of her concern and, in my view, it should have been clear from the stress and anxiety that Ms Kosteski reported to them that the insistence on her return to the Hurstville unit would likely have the outcome that resulted. Nobody appears to have taken responsibility at the appropriate time for assisting an employee who was showing clear signs of distress. Action was taken by Centrelink to address the problem subsequently but by that stage the damage had been done. I note the expert witnesses commented on the poor workplace handling of her situation.
I am satisfied that while asking an employee to return to their substantive position at the end of a temporary secondment would ordinarily be reasonable administrative action, in this case it was not reasonable given the past history and the likely reaction of Ms Kosteski, of which the employer was on notice. Thus, the condition suffered by Ms Kosteski constitutes an injury as defined in s 5A. I do not accept, as suggested by Miss Henderson, that the relevant administrative action involved something reasonably done in connection with the employee’s failure to obtain a transfer or to retain a benefit (s 5A(2)(f)).
The remaining question is whether, pursuant to s 14, the injury resulted in incapacity for work or impairment. The expert medical evidence of Dr Smith and Dr Way is clear that Ms Kosteski was incapacitated for work as a result of the injury on 15 November 2012. Thus, I am satisfied that the Respondent is liable under s 14 of the SRC Act for the injury caused to Ms Kosteski.
DECISION
The Tribunal:
(a)Sets aside the decision under review and substitutes a decision that Ms Kosteski suffered an injury as defined in s 5A of the SRC Act and that the Respondent is liable to the Applicant under s 14 of the SRC Act.
(b)Orders that the Respondent pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.
I certify that the preceding 68 (sixty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley ...........................[sgd].............................................
Associate
Dated 14 April 2014
Date(s) of hearing 2 - 4 April 2014 Date final submissions received 4 April 2014 Counsel for the Applicant A Anforth and C Edwards Solicitors for the Applicant Capital Lawyers Counsel for the Respondent R Henderson Solicitors for the Respondent Sparke Helmore Lawyers
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