Andrew Turkington and Comcare
[2014] AATA 616
•1 September 2014
[2014] AATA 616
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0043
Re
Andrew Turkington
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 1 September 2014 Place Brisbane The Tribunal affirms the decision under review.
..............................[Sgd]..........................................
Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Claim for psychiatric injury – Diagnosis of adjustment disorder with depressive reaction – Significant contribution by aspects of employment - Contribution resulted from reasonable administrative action taken in a reasonable manner –No liability of respondent for compensation for incapacity or impairment – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 7, 14
CASES
Comcare v Martinez (2013) 137 ALD 481
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Georges and Telstra Corporation Ltd [2009] AATA 731
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Hay v Comcare [2014] AATA 325
Perera v Comcare [2013] AATA 589
Pettiford v Comcare [2014] AATA 95
Radulovic and Comcare [2010] AATA 777
Yu v Compare [2010] AATA 960REASONS FOR DECISION
Mr R G Kenny, Senior Member
1 September 2014
BACKGROUND
On 15 July 2011, Andrew Turkington (“the applicant”) completed a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for rehabilitation and compensation in respect of “psychological injury”. He claimed that this resulted from a telephone call he received from his director at approximately 11.45am on 10 December 2010 while they worked with the Australia Taxation Office (“ATO”). He alleged that the director raised an “imputation in [a] phone call that [he] was not competent in his job and had overly personalised performance management of a staff member”.
On 16 August 2013, Comcare entered the diagnosis of “adjustment reaction with depressive reaction”[1] and dismissed the applicant’s claim. It did so after determining that the applicant’s employment contributed to the condition but that liability did not arise under the Act because the condition resulted from reasonable administrative action that was taken by the ATO in a reasonable manner as provided for in s 5A of the Act. That determination was affirmed by a Senior Review Officer from Comcare in a reviewable decision dated 4 November 2013.
[1] The determination and the reviewable decision have described the condition as “adjustment reaction with depressive reaction” whereas the diagnosis would seem to be “adjustment disorder with depressive reaction”.
ISSUES AND LEGISLATION
The definitions of “injury” and “disease”, respectively, in ss 5A and 5B of the Act, read:
5A Definition of 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.
5B Definition of disease
(1) In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
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.
For the respondent, Ms Henderson conceded that, subject to s 5A(2) of the Act, there was significant contribution to the applicant’s adjustment disorder from his employment by the Commonwealth and that it was a disease and an injury as defined.[2] On the evidence set out below, I am satisfied that Ms Henderson’s concession has been properly made.
[2] As defined in s 5B of the Act.
Ms Henderson submitted that, as provided for in s 5A(2) of the Act, the applicant’s psychiatric condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment and therefore was not an injury which is compensable under s 14 of the Act.
The date of injury, being a disease, is determined under s 7(4) of the Act which reads:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
In the decision under review, the relevant date was determined to be 25 January 2011, when the applicant was treated by and received a medical certificate from his general practitioner (“GP”) at the Chermside Medical Centre. At that time, this was Dr Rory Wagon. It was determined by the review officer that various workplace incidents referred to by the applicant after that date were not relevant to that medical consultation and those incidents were therefore not to be taken into account when considering the applicant’s claim.
The first issue for determination is the date of the applicant’s injury. The further issue is whether the applicant’s psychiatric condition developed as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
EVIDENCE
The applicant
In December 2012, the applicant was a team leader in the Small and Medium Enterprises (“S&ME”) area of the ATO. He was appointed to that position in January 2010. In the hierarchy above him were Mr Cameron Unwin and Mr John Roache. Mr Unwin was the General Compliance Regional Director, to whom the applicant reported. Mr Roache was the Senior Director, to whom Mr Unwin reported. One of the concerns that the applicant had from about July 2010 was in relation to a member of his team, S, whom he was performance managing. The applicant was concerned about S’s health and recommended to S that he undergo an Initial Needs Assessment. S refused to do so unless a Performance Management Procedure was formally commenced. The applicant said that S had complained to Mr Unwin about him and had requested Mr Unwin to allow him to transfer from the applicant’s team. This reallocation was denied and the applicant said that he was supported in his actions by Mr Unwin and Mr Roache. The applicant said that, in August 2010, he advised Mr Unwin that he was feeling stressed with the ongoing performance management of S but that Mr Unwin took no action at that time.
The afternoon of Friday 10 December 2010 was the occasion of the S&ME area’s Christmas party in a city hotel. At about 11.30 am, the applicant left his work area, which was an open plan setting, to attend the function. About 20 minutes after he arrived at the venue, he received a call on his work-supplied mobile phone from Mr Unwin. The call lasted about 10 minutes. The applicant has only a vague memory of the conversation except for his recollection that he “quickly became angry and agitated” and the primary message from Mr Unwin. This was that S had been to see Mr Roache requesting a transfer out of the applicant’s team; that, because of S’s distressed state at the time,
Mr Roache had directed that the transfer occur; that Mr Roache required Mr Unwin to find a new placement for S; and that Mr Unwin was to advise the applicant, accordingly. This notification by phone of the transfer shocked and angered the applicant though he believed that Mr Unwin had remained calm during the conversation. The applicant remained at the function for about 1½ hours and then left for the afternoon on flex-time which had been previously arranged. He said that both Mr Unwin and Mr Roache attended the party but did not speak to him about S’s transfer.
After the weekend, on 15 December 2010, the applicant consulted Dr Wagon. He advised Dr Wagon of the recent workplace events and the effects it had upon him. Dr Wagon prescribed Diazepam and arranged, for 17 December 2010, a long appointment with the applicant. Dr Wagon completed a medical certificate excusing the applicant from work until 3 January 2011. The applicant again saw Dr Wagon on 5 January 2011 and on
25 January 2011 when Dr Wagon provided him with a medical certificate excusing him from work until 18 February 2011. The applicant took that certificate to Mr Unwin without giving any explanation of it. Mr Unwin signed it without comment and then the applicant took sick leave. He returned to work on 19 February 2011 and had periods of sick leave until he took extended leave until January 2013. On return, he accepted the position of an operative though he retained his earlier team leader standing and salary.
The applicant was aware that, through 2010, Mr Unwin and Mr Roache were concerned that he did not have a sufficient skill base to enable him to properly oversee the auditing work which was carried out by the members of his team. The applicant had always maintained that he did have sufficient skills and that, in any event, he had not been engaged as an auditor but as a manager.
The applicant described the phone call from Mr Unwin on 10 December 2010 as a breach of natural justice. He contended that Mr Unwin should have delivered such a message to him personally. He submitted that Mr Unwin would have realised that the information regarding the transfer would have a detrimental effect on his health. He also contended that, when the certificate was presented to him on 25 January 2011, Mr Unwin was required to implement procedures under the ATO Protocol 2006/10/01 “Managing illness and injury in the workplace CMPI”. This was because the period of leave was for more than 10 days.
In his evidence, the applicant agreed that S was expected to be at the Christmas party on
10 December 2010 and that it would have been very distressing for him if he first heard of S’s transfer from S himself. He also agreed that it was appropriate for Mr Unwin to advise him before that could happen and that, in that sense, the phone call was appropriate. However, he contended that Mr Unwin should have told him of the transfer decision before S was advised of it. He said that there were arguments both ways on whether it would have been inappropriate for Mr Unwin and/or Mr Roache to speak to him at the party about S’s transfer. He also agreed that, where there was a complaint by a team member about the team leader, it could be appropriate to resolve this by transferring the member out of the team.
Cameron Unwin
Mr Unwin completed an undated document entitled “Timeline of events”, a statement dated 2 July 2014 and gave evidence. He is employed by the ATO as Regional Director – Audit, of the Serious Non Compliance (“SNC”) business service. His classification is Executive Level 2.1. He confirmed that, between 18 January 2010 and April 2011, the applicant was a Team Leader in the General Compliance (“GC”) functional area of the S&ME Business Services Line (“BSL”). From March 2010, Mr Unwin reported to Mr Roache and the applicant reported to Mr Unwin.
In his timeline of events, Mr Unwin set out aspects of the applicant’s work from
January 2010 until May 2011. He referred to the applicant’s annual performance review in August 2010 where the applicant advised that he wasn’t coping with work as he was feeling stressed by the ongoing performance management case with S.
Mr Unwin said that the applicant’s team leadership role had both a managerial and a technical aspect. At the time of the applicant’s appointment, Mr Roache and Mr Unwin had discussed this and were aware that the applicant lacked certain technical knowledge as well as some knowledge of ATO and S&ME policies and procedures and were agreed that the applicant could acquire these with proper commitment and effort. Through 2010, the applicant resisted taking skill acquisition opportunities and Mr Unwin was advised of concerns of some members of the applicant’s team that the applicant lacked certain skills.
Mr Unwin was aware that the applicant had initiated informal performance management of S because he believed that S was not making satisfactory progress to becoming fully effective. Mr Unwin generally supported the applicant in this process though he thought that the applicant had made some mistakes in the performance management process. He thought that the applicant was a good manager and he trusted the applicant’s judgement. He described the informal discussion as the correct starting point in ATO procedures for addressing underperformance which, if improvement is not achieved, would be followed by a review of the person’s Performance and Development Agreement and then, if necessary, more formal performance management documented in a Performance Improvement Plan (“PIP”). Mr Unwin said that, if the person has a health issue which is affecting performance, a different strategy applies. In that case, an occupational health assessment is arranged via an Initial Needs Assessment (“INA”).
Mr Unwin said that, on 26 October 2010, he was approached by S who advised that the applicant had told him on the previous day that he was sending S for an INA and that he wanted to start a PIP. Mr Unwin told S that the applicant had concerns about work performance and that he supported the applicant’s concerns. At that time, S requested a transfer to another team. Mr Unwin was reluctant to grant this and advised S that the request would be looked at after a recruitment process was completed as he was planning to reorganise the teams after that recruitment process. On 27 October 2010,
Mr Unwin met with the applicant and S and took on a mediation role between them. The applicant pressed for a formal performance management process to commence but
Mr Unwin directed that the informal process be continued. At the end of that session, S again requested a transfer and, again, Mr Unwin refused this.
Mr Unwin said that he was advised by Mr Roache that he was concerned that the applicant had initiated proceedings against S too early in the assessment process and without discussing the matter of the INA referral with him. On 29 November 2010,
Mr Unwin decided to move S to another team for the purposes of his reporting to the team leader on case management decisions though he would remain in the applicant’s team for leave and attendance management. He said that he advised the applicant of this in the following week.
On 10 December 2010, S approached Mr Unwin and again requested that he be removed from the applicant’s team. Mr Unwin again declined S’s request. S replied that he was going to take the matter to Mr Roache. In his statement, Mr Unwin continued:
Sometime before 10 am on the morning of 10 December 2010 my direct manager Mr Roache asked me to a meeting room. Mr Roache advised me that that [S] had met with him and outlined the detail of a formal complaint he would be shortly lodging – the complaint being that [the applicant] had bullied and harassed him. He had told Mr Roache that a transfer out of [the applicant’s] team would resolve his issues, including his medical issues. Mr Roache told me to arrange this transfer, effective immediately. Mr Roache also said that he had concerns about [the applicant] that I should address. He said he agreed that [S] has some performance issues, but thought that [the applicant] may have moved too quickly in the performance management process and had made mistakes. He said that he thought [the applicant] may have taken the performance management of [S] too personally and should not have unilaterally decided on an [INA]without advising him of his intention. He said he was also concerned about some flippant comments [the applicant] had made, including some he had heard himself that can be taken the wrong way by some staff. Mr Roache said he was also concerned about [the applicant’s] progress in improving his technical skills and commented he thought [the applicant] was reluctant to attend the S&ME Technical Conference, which was not a good look for a team leader. I said I understood his decision and shared some of his concerns and would provide feedback to [the applicant].
Mr Unwin’s evidence was that, after his conversation with Mr Roache, he checked documentation as to where a placement was available for S. He then moved across the open area of the work floor to find the applicant. The applicant was not at his desk and so he resolved to call the applicant on his work mobile phone. He wanted to let him know of the transfer decision before anyone else in his team, in particular S, might tell him. He said that the phone call to the applicant lasted about 10 minutes. He told him that he had not supported the move but that he had been overridden by Mr Roache. Mr Unwin advised the applicant of the other concerns which had been expressed by Mr Roache about the applicant. He said that the applicant became quite upset during the call and that the conversation became quite intense. He said that reference was made to a meeting in the following week to discuss the matter further.
In his evidence Mr Unwin said that, when looking for the applicant before he made the phone call to him, he saw S in his desk area and was asked by him if the transfer was in place and Mr Unwin nodded to him to indicate it was. He agreed that he thought that the applicant would be unhappy with Mr Roache’s decision but not that he would be upset by it. In relation to the medical certificate provided by the applicant on 25 January 2011, he said that he had noted the dates but not the nature of the medical reason for the applicant being off work. He agreed that, in hindsight, he should have followed the ATO protocol.
Medical evidence
In evidence were the clinical notes from the Chermside Medical Centre which the applicant attended from 5 January 2010 until 7 June 2013. On 5 January 2010, it is noted that the applicant had experienced a lot of stress in his previous job. In the following 12 entries to December 2010, no reference is made to any psychological ill health.
On 15 December 2010 Dr Rory Wagon recorded that the applicant had anxiety/depression and wrote:
History:
Feels under extreme pressure. Some personal issues over the year with friends sick or depressed but mainly with work. Had to deal with some difficult staff inc one on performance management causing him distress. His manager supportive but senior manager is not and A believes has expressed opinions about his fitness behind his back.
Significantly, Dr Wagon prescribed Diazepam at that time.
On 17 December 2010, Dr Wagon wrote:
History:
Continued discussion. Essentially feels unsupported by senior management when he has done the correct things. Some anger and frustration. Complaint lodged by worker he has been performance managing. Diazepam once a day very helpful in de-stressing him.
On 5 January 2011, Dr Wagon wrote:
History:
Felt calm over Xmas break but as time to return to work he feels anger and anxiety returning. Discussed. Two issues – work situation and himself personally.
On 25 January 2011, Dr Wagon wrote:
History:
Bad time last week. Back at work full time and unable to get to talk with manager. Saw him yesterday and asked him what senior manager had said - apparently he felt A was not up to the job and under qualified. Discussed - he is angry and stressed - needs to resolve issues with work.
Dr Wagon completed a medical certificate during that visit, which declared the applicant unfit for work from 25 January 2011 until 18 February 2011, stating:
Andrew is under considerable work related distress due to difficulties by his having to performance manage a complex issue with a work colleague and a belief that he has not been supported by his managers during this time.
A clinical note on 29 March 2011 by Dr Vincent Crowley, who at that time was his GP at the Chermside Medical Centre, refers to the applicant having ongoing stress and “requiring regular Diazepam to get to work. On 6 June 2013, Dr Crowley described the applicant as having an aggravation of the adjustment disorder with anxious mood which he suffered in January 2010.
Psychiatrist, Dr Bartholomew Klug assessed the applicant on 5 July 2013 and completed a report on 8 July 2013. Dr Klug diagnosed the applicant as having major depressive disorder. He wrote that the applicant first suffered from clinically identifiable symptoms in late 2010 or early 2011 and first had treatment on 25 January 2011. He also wrote that the onset of the condition was at the beginning of 2011 or in January/February 2011 “when he started to take sporadic periods of sick leave”. He referred to workplace stressors which impacted upon the applicant in that time-frame, in particular, “issues with a fellow employee whom he was supposed to performance manage”. Dr Klug also identified other stressors which occurred after 25 January 2011. These were his demotion to an “operative”, a fellow employee’s complaint that he had discussed his mental health problems with her, having his performance reviewed on the grounds of his alleged technical incompetence and matters relating to his mid-year review in 2011. Dr Klug noted that the applicant suffered a “relapse” of his psychiatric condition in 2013 which he described as an “exacerbation” of his condition but “not an aggravation, acceleration or recurrence or of any pre-existing or underlying condition”.
Psychiatrist, Dr Adrian Morris saw the applicant on 22 May 2013 and completed a report on 6 June 2013. He wrote that the applicant’s symptoms date back to 2010 and he identified allegations of bullying and harassment at that time with a subsequent demotion from Team Leader to Audit Operator. Dr Morris recorded the applicant as advising that his condition improved by January 2013 such that he was able to return to work until May 2013 when he again experienced the symptoms of depression.
Dr Michael Robertson saw the applicant on 29 April 2011 and 12 August 2011. He completed respective reports dated 4 May 2011 and 15 August 2011. In his first report, Dr Robertson described the applicant’s account of interpersonal difficulties with
Mr Unwin who allegedly unfairly criticised him about his technical and management skills as well as examples of harassment and bullying which escalated to the point where Mr Roache was involved. Dr Robertson noted that the applicant described a change in his mental health in December 2010, and subsequently diagnosed the applicant with adjustment disorder with depressed mood. In his second report, Dr Robertson noted the applicant reported deterioration in his condition. He confirmed his earlier diagnosis, though he also wrote that a differential diagnosis of major depressive disorder should be retained.
A letter, dated 6 June 2013, from Dr Crowley who at that time was his GP at the Chermside Medical Centre, described the applicant as having an aggravation of the adjustment disorder with anxious mood which he suffered in January 2011.
Other evidence
In evidence were copies of various protocols published by the ATO which give guidance to ATO staff on a range of matters. These include “Workplace harassment, discrimination and bullying PS CM 2004/09”[3], “Addressing underperformance - a guide for managers and employees”[4] and “Resolving workplace allegations and complaints”.[5]Another such protocol entitled “Managing illness and injury in the workplace CMPI 2006/10/01”[6] includes, at s 17, the responsibilities of managers and team leaders. One of these reads:
A manager or team leader will take all reasonable steps to notify the People Help Line (PHL) of the employee’s extended absence of more than 10 days due to illness or injury.
[3] See T documents at 120.
[4] See T documents at 129.
[5] See T documents at 437.
[6] See T documents at 160.
SUBMISSIONS
For the respondent, Ms Henderson submitted that the applicant’s psychiatric condition developed as a result of the phone call he received from Mr Unwin on
10 December 2010. She submitted that the applicant’s psychiatric condition may be taken to have been sustained in December 2010 and that the phone call made a significant contribution to it. She noted that he consulted his GP on 15 December 2010.
Ms Henderson submitted that the decision by Mr Roache to transfer S was a reasonable administrative action though she conceded that the approach adopted by him was not strictly in compliance with the ATO guide for resolving workplace allegations and complaints. She referred to Comcare v Martinez[7] as authority for the view that such guidelines cannot be used to substitute for the clear words of the Act and that the test was whether or not the steps taken amounted to reasonable administration action taken in a reasonable manner. She submitted that, considered objectively, the decision by
Mr Roache to transfer S was reasonable in the circumstances due to the distressed state that S was in when he spoke to him on the morning of 10 December 2010, and also for the reason that this warranted the need for urgent action in the form of Mr Roache’s executive decision.
[7] (2013) 137 ALD 481 at 499-500.
Ms Henderson also submitted that Mr Roach’s direction to Mr Unwin to advise the applicant of the decision and Mr Unwin’s compliance with that direction constituted reasonable administrative action. This was because the phone call by Mr Unwin, the applicant’s immediate superior, had the dual purpose of advising the applicant of the transfer and to advise him of concerns about the way the applicant had undertaken the performance management of S. In particular, she submitted that it was within the terms of s 5A(2)(b) or (e) of the Act. Further, Ms Henderson submitted that, in the circumstances where Mr Unwin was unable to locate the applicant, it was reasonable for him to use the work-supplied phone to advise the applicant of Mr Roache’s decision as well as the other matters referred to him by Mr Roache. Accordingly, Ms Henderson submitted that liability of the respondent for the applicant’s psychiatric condition was excluded by the terms of s 5A of the Act.
Some of the applicant’s contentions related to whether the telephone call by Mr Unwin on 10 December 2010 was a significant factor in the cause of his psychiatric condition. In an undated submission provided prior to the hearing, he conceded that it was a contributory factor but not a significant one. He also devoted much of his submissions to events that occurred in 2011 after he sustained his injury.
The applicant submitted that the phone call by Mr Unwin was not administrative in nature but rather operational, and therefore not a matter within s 5A(1) of the Act. He submitted that the phone calls had a dual purpose. The primary purpose was to advise him of S’s transfer. The secondary purpose was to debrief him concerning matters relating to his own performance as a team leader. He submitted that the primary purpose was operational in nature and did not constitute administrative action. As to the reference to his role as a team leader, the applicant submitted that this was only informal counselling and not included in s 5A(2) of the Act.
The applicant also submitted that the action taken by Mr Unwin was not reasonable. He submitted that Mr Unwin was aware that he had been suffering from stress earlier in 2010 and submitted that this should have been taken into account by Mr Unwin before he advised him of Mr Roache’s concerns about his performance. The applicant submitted that this was required by the ATO guides entitled “Addressing underperformance - a guide for managers and employees” and “Managing illness and injury in the workplace CMPI 2006/10/01”. He submitted that before Mr Unwin raised those concerns, the applicant should have been referred for a health assessment to determine his fitness for duty via an INA. The applicant also submitted that failure to comply with the ATO guides was unlawful and that any unlawful conduct could not be reasonable. He referred to the following authorities to support his contentions: Commonwealth Bank of Australia v Reeve[8]; Hay v Comcare[9], Yu v Comcare[10]; and Georges v Telstra Corporation[11], Pettiford v Comcare[12], and Perera v Comcare.[13]
[8] [2012] FCAFC 21.
[9] [2014] AATA 325 at [38].
[10] [2010] AATA 960 at [3] and [4].
[11] [2009] AATA 31.
[12] [2014] AATA 95.
[13] [2013] AATA 589.
CONSIDERATION
The first issue for determination is the date of the onset of the applicant’s psychiatric condition. In the decision under review, 25 January 2011 was found to be when the applicant first sought medical treatment and was given time off work by Dr Wagon. However, on 15 December 2010, Dr Wagon referred to anxiety/depression and, significantly, prescribed Diazepam for the applicant. That treatment does not appear in the GP’s clinical notes before then and the applicant continued with Diazepam into 2011. I am satisfied that, in accordance with s 7(4)(a) of the Act, the applicant sought, and obtained, medical treatment on 15 December 2010 and that his psychiatric condition is taken to have been sustained by him on that date. That is consistent with the evidence of Dr Robertson and Dr Morris. As I read Dr Klug’s report, he attributed the initial onset of the applicant’s psychiatric condition to the incidents in late 2010 or early 2011, and that he had an exacerbation of this in 2013 but that there was no aggravation, acceleration or recurrence or of any condition that pre-existed the onset in 2010/early 2011.
Ms Henderson conceded that the phone call to the applicant on 10 December 2010 made a significant contribution to the applicant’s psychiatric condition. While the applicant conceded that the phone call contributed to his condition, he submitted that it did not do so significantly. The Act requires that, for contribution to be significant, it must be “more than material”.[14] The applicant has placed reliance on a range of events that occurred in the workplace in and after January 2011. These post-date the onset of the applicant’s claimed condition and cannot be considered to have made any contribution to it. On the other hand, apart from a reference almost 12 months earlier, the clinical notes of the applicant’s GP do not refer to any psychiatric concerns before 10 December 2010. From and including the notes on 15 December 2010, psychiatric concerns dominate those notes and treatment commenced and was continued. I am satisfied that, consistent with the psychiatric opinions in this matter, the phone call made a contribution which was more than material to the development of the applicant’s adjustment disorder.
[14] See s 5B(3) of the Act.
The next issue for consideration is whether the phone call to the applicant constituted “administrative action taken … in respect of the employee’s employment”. As the Tribunal pointed out in Hay v Comcare[15]:
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] FCAFC 21; (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
[15][2014] AATA 325 at [36] – [37]. See also Radulovic and Comcare [2010] AATA 777 at [73]-[74].
As noted above, in the decision under review, it was determined that workplace incidents referred to by the applicant after the date when the psychiatric condition was sustained were not relevant to that medical consultation and that, therefore, were not to be taken into account when considering the applicant’s claim. As I am also satisfied that such is the case, matters referred to after 15 December 2010 are not relevant to the second issue for determination concerning whether the circumstances around the phone call to the applicant on 10 December 2010 constitute reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. In particular, that includes the tender by the applicant of Dr Wagon’s medical certificate to Mr Unwin on
25 January 2011.
I accept the submissions of the parties in this matter that the phone call by Mr Unwin to the applicant had a dual purpose. The first was that of advising the applicant of the transfer of S. The second was that of indicating to him that there were some concerns about his conduct in the workplace including the way he had undertaken the performance management of S. Further, I am satisfied that those aspects were of equal importance as each was the subject of Mr Roache’s instruction to Mr Unwin. Clearly, the first of those constituted administrative action in so far as it impacted on the employee S as a member of a team. However, I am satisfied that it also constituted administrative action in so far as it impacted on the nature and extent of the applicant’s employment as a team leader. I am satisfied that the secondary purpose of the phone call constituted administrative action in respect of the applicant’s employment in the form of informal counselling. This was not done formally at that time. Neither was it done fully. Rather, it was a foreshadowing of certain matters which would be the subject of further discussion at a proposed meeting between Mr Unwin and the applicant in the following week.
The applicant’s evidence was that he had only a vague memory of the conversation he had with Mr Unwin on 10 December 2010 except for its primary message concerning the transfer of S. He said that he was angry, agitated and shocked during the 10 minute conversation but that Mr Unwin remained calm. Mr Unwin gave a clear account of the conversation and I accept his evidence about the reason for contacting the applicant by phone and the content of the conversation. He advised the applicant of the transfer and also aspects of the concerns that Mr Roache had about the applicant’s involvement with S. This included the opinion of Mr Roache that the applicant had moved too quickly with the performance management process, that the applicant may have taken the performance management too personally as well as other matters such as the level of the applicant’s technical skills and his making of flippant comments. I am satisfied that he also advised the applicant that there would be a follow-up meeting in the next week about the matters raised in the phone call. The fact that the follow-up meeting did not occur does not change the character of the conversation as it occurred on 10 December 2010.
It follows from the above that Mr Unwin’s phone call to the applicant does not merely constitute action in an operational sense. The making of the phone call, dealing as it did with references to the manner in which the applicant had dealt with S and other workplace matters, comprises administrative action in respect of the applicant’s employment as referred to in ss 5A(2)(b) and (e) of the Act. The next issue for consideration is whether that action was reasonable.
As I understand the applicant’s contentions, it is the phone call rather than the decision by Mr Roache to transfer S with which he takes issue. To the extent that he implicates the decision about the transfer of S by Mr Roache, I accept as correct the submission of Ms Henderson that Mr Roache was entitled to make the decision in his executive capacity even if he did not comply with certain ATO protocols.[16] I am also satisfied that the decision by Mr Roache, as executed by Mr Unwin, to advise the applicant was reasonable. It was an important decision in the context of the applicant’s dealings with S in the previous months and it was important that he be advised of the decision as soon as was practical.
[16] See Comcare v Martinez (2013) 137 ALD 481 at 499.
Preferably, as conceded by Mr Unwin, this would have been done in a face-to-face situation. Indeed, I accept that Mr Unwin attempted to do this but was unable to locate the applicant in the work area. He telephoned the applicant. Significantly, he contacted the applicant on the mobile phone provided by the ATO. Mr Unwin was anxious that the information about the transfer come from him rather than from any of the applicant’s team or, particularly, from S himself. The applicant, in his evidence, agreed that, in that sense, it was appropriate for Mr Unwin to advise him before that could happen, and that the phone call was reasonable as well as appropriate. His contention was that he should have told him of the transfer decision before S was advised of it. In that, Mr Unwin has indicated that Mr Roache made the transfer when in the presence of S who was in a distressed state at the time. In those circumstances, I am satisfied that, in an objective sense, it was reasonable for Mr Roache to advise S of the transfer provided he put in train a process whereby the applicant would be advised quickly of the decision. He did this through the management hierarchy by entrusting Mr Unwin, the applicant’s immediate superior, with the task.
As noted above, I accept that Mr Unwin advised the applicant that he would follow up the call in a meeting with the applicant in the following week. This underpins the reasonableness of the process adopted by Mr Unwin. That is the case at the time of the phone call, even though such a meeting did not take place.
I have noted the applicant’s reference to Mr Unwin being aware that he had previously, in or about August 2010, complained of stress at work.[17] There is no evidence of any medical certification which would inform Mr Unwin of this and no relevant reference to work-related stress in the GP’s clinical notes in the months before 10 December 2010. I have noted Mr Unwin’s evidence that, while he thought that the applicant would be unhappy with Mr Roache’s decision, he did not think that he would be upset by it. I am satisfied that this is not a matter that touches on the reasonableness of the administrative action in this matter.
[17] See Re Georges and Telstra Corporation Limited [2009] AATA 731 at [22].
I am satisfied that the phone call by Mr Unwin was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.[18] Accordingly, because of the exclusionary terms of s 5A(1) of the Act, any contribution to the applicant’s depression by that administrative action cannot be relied upon to establish liability under the Act.[19]
[18] In so determining, I have considered the authorities referred to by the parties.
[19] See Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member .........................[Sgd]...............................................
Associate
Dated 1 September 2014
Date(s) of hearing 20 August 2014 Applicant Andrew Turkington, In person Solicitors for the Respondent Matylda Gostylla, Australian Government Solicitor
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