Bernadette Melder and Comcare
[2013] AATA 534
•31 July 2013
[2013] AATA 534
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2401
Re
Bernadette Melder
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 31 July 2013 Place Melbourne The reviewable decision, being the decision of Comcare made 18 April 2012 that Ms Melder is not entitled to compensation for depressive disorder and anxiety, is affirmed.
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Deputy President J W Constance
CATCHWORDS
COMPENSATION – adjustment disorder with depression and anxiety – whether employment contributed to a significant degree – whether reasonable administrative action taken in a reasonable manner – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14
CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Wang and Comcare [2012] AATA 242
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Ms Melder has been employed by the Department of Defence since 1999. In 2010 she suffered an adjustment disorder to which her employment made a significant contribution.
In 2011 Ms Melder lodged a claim for compensation in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare has denied liability to pay compensation on the ground that the condition was caused, at least in part, by actions of her employer which were reasonable administrative actions carried out in a reasonable manner in respect of her employment. If such was the case the Act provides that compensation is not payable.
Ms Melder has applied to the Tribunal to review Comcare’s decision. For the reasons which follow the decision will be affirmed.
EVIDENCE AND FINDINGS OF FACT
Unless stated otherwise, the following findings of fact are made on the basis of the evidence of Ms Melder.
In late 2008 Ms Melder commenced in the role of the Head of the Systems Program Office within the Lands Systems Division of the Department. Her supervisor was Brigadier Phelps.
On the basis of the evidence of Brigadier Phelps I am satisfied of the following:
·in March 2009 he conducted Ms Melder’s mid-cycle performance review in which he scored her “A-minus” against some criteria, where the choice was between a score of “A” meaning “on track” and “B” meaning “not on track”;
·at about this time Brigadier Phelps counselled Ms Melder concerning her leadership, management style and interpersonal skills;
·in September 2009 Brigadier Phelps conducted Ms Melder’s end-cycle performance review in which he rated her as not effective and partially effective against some criteria; he recommended that she be placed on a performance improvement plan and as a result her salary progression was deferred.
Ms Melder did not agree with the assessment of her performance and provided a detailed response in writing.[1] Ms Melder also complained of the manner in which she had been dealt with by Brigadier Phelps. I will make further findings of fact in relation to this process later in these reasons.
[1] Exhibit R8 annexure MP5.
On at least two occasions between March 2009 and September 2009 Brigadier Phelps spoke to Ms Melder about her leadership style in a manner which Ms Melder found distressing. However as Comcare agrees that Ms Melder’s employment by the Department made a significant contribution to her illness, it is not necessary that I make detailed findings in relation to these instances.
In late October 2009 Ms Melder transferred to the Land Vehicle Systems Branch where she was employed as a Project Director. As this was a new position she entered into a new Employee Performance Agreement. In a review conducted in February 2010 Ms Melder was rated “fully effective”. In March 2010 her salary progression was approved.
On 16 March 2010 Mr O’Callaghan, Deputy Director General of the Division in which Ms Melder was employed, requested that she forward an electronic copy of her Employee Performance Agreement to her supervisor, Brigadier Boyer. Ms Melder was told that this was for the purposes of review and for the provision of feedback to her. On 21 March 2010 Ms Melder received an email from Brigadier Boyer advising her that the process in relation to her Agreement was complete. She heard nothing further about this issue until June 2010.
In May 2010 Ms Melder was advised that Ms Kelly had been appointed as the Acting Director-General of the Branch by reason of Brigadier Boyer’s illness. On her appointment, Ms Kelly became Ms Melder’s supervisor.
In her role as Project Director, Ms Melder supervised Mr Densten, a Project Manager in her Branch. Ms Melder found Mr Densten difficult to deal with and formed the view that he did not accept her role as Project Director, that he had attempted to bypass her role, that he failed to follow directions and that he had sent information to the Director-General of the Branch without her clearance.
On 7 June 2010 Mr Densten failed to arrive at work by 10am. Shortly after 10am Ms Melder sent him a text message in words to the effect “where are you? You are meant to notify me by 10 if you are running late or ill. Please advise. Bernadette.”
On 9 June 2010, as a result of something she was told by a fellow employee, Ms Melder sent an email to Mr Densten informing him that he was not to send emails to the Director-General without her approval and that he must advise her if Mr O’Callaghan requested Mr Densten to do work for him. The next day, during a conversation concerning the content of the email, Ms Melder said to Mr Densten words to the effect “I wish you all the best in seeking/obtaining a new job.”[2]
[2] Exhibit R9 annexure KO3.
On 10 June 2010 Mr Densten made a complaint concerning Ms Melder’s conduct towards him. On the afternoon of the same day, at the request of Mr O’Callaghan, Ms Melder attended a meeting with Mr O’Callaghan and Mr Densten. At the meeting Mr O’Callaghan informed Ms Melder that Mr Denster was upset by her SMS message and email and that he (Mr O’Callaghan) thought that these communications could be seen as disrespectful to Mr Densten. During that meeting Ms Melder apologized to Mr Densten if he was offended by her communications to him. She also raised her concern that Mr Densten was by-passing her role as Project Director and that there was a perception among the staff that he worked for Mr O’Callaghan and not for her. A further meeting was scheduled for the following week.
Sometime after 10 June 2010 Ms Melder learned that a Final Outcome Report had been prepared. This report classified the meeting as a mediation and recorded that she was involved in weekly counselling sessions with her supervisor. This caused Ms Melder further concern has she had not been involved in any counselling sessions nor in a mediation. At the time Department of Defence procedures required that a mediation be conducted by a qualified mediator. Mr O’Callaghan was not so qualified.
On 17 June 2010 Ms Melder met with Mr O’Callaghan and Mr Densten as previously arranged. Ms Melder and Mr Densten discussed their respective roles and agreed that the issues between them had been resolved. At the conclusion of this meeting Ms Melder believed that Mr Densten’s complaint had been finally dealt with.
On 24 June 2010 Ms Melder received an email from Mr O’Callaghan advising her that Ms Kelly had asked him to conduct her mid-cycle review and to make recommendations as to whether Ms Melder should be placed on another Performance Improvement Plan. Ms Melder was upset by the content of this email. In her view consideration of a further Plan was inappropriate as the previous Performance Improvement Plan had been finalized, her current performance had not been evaluated and Mr O’Callaghan was her peer and not her supervisor. She felt stressed by this advice and experienced difficulty in sleeping.
On 7 July 2010 Ms Melder attended her general practitioner, Dr Latif and complained of feeling stressed and having difficulty in sleeping. Dr Latif recorded that Ms Melder was “under stress at work and as a result is unable to sleep at night.”[3]
[3] Section 37 documents p108.
The mid-cycle review proposed in the email of 24 June 2010 was not conducted until sometime after 7 July 2010.
LEGISLATION
Under s14(1) of the Act Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.
“Injury” is defined in section 5A in part as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee;
…
but does not include a disease … 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.
“Disease” is defined in section 5B:
(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.
…
(3)In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Subsection 7(4) makes special provision for determining the date on which an “injury”, being a “disease”, is suffered:
(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.
ISSUES FOR CONSIDERATION
Comcare concedes that Ms Melder has suffered a “disease” within the meaning of the Act as her claimed condition is an “ailment” that was contributed to, to a significant degree by her employment by the Commonwealth. I am satisfied that these are proper concessions.
It has been my experience that in applications such as this Comcare has increasingly been prepared to concede that a worker’s condition has been contributed to by his or her employment to a significant degree. This is a development to be commended. It permits the number of issues requiring determination to be reduced with consequent savings in time and costs for the parties and the Tribunal. However it is important in these circumstances that the issues remaining for determination are clearly defined.
Comcare argues that Ms Melder has not suffered an “injury” within the meaning of section 5A of the Act as the “disease” from which she suffers was suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of [her] employment.” Comcare has identified the following actions as being “reasonable administrative action”, each of which excludes the disease suffered by Ms Melder from the definition of an injury for which compensation is payable:
(i)the mid-year performance review in March 2009, conducted by Brigadier Phelps, in which the applicant had some “A minus” ratings (where the choice was between “A” meaning on track and “B” meaning not on track), coupled with performance counselling about the applicant’s leadership, management style and interpersonal skills;
(ii)the end of year performance review in September 2009, conducted by Brigadier Phelps, in which he rated the applicant PE (partially meets expectations) against some criteria, recommended a performance improvement plan (PIP) and that the applicant be denied a salary progression;
(iii)the meeting Mr O’Callaghan convened between the applicant and Simon Densten on 10 June 2010, following Mr Densten’s complaints about the applicant.[4]
[4] Respondents Amended Statement of Facts, Issues and Contentions dated 8 March 2013.
Although Comcare refers to a “mid-year review” and an “end-of-year review” in its Statement of Facts and Contentions, documents in evidence[5] disclose that the correct terminology is “mid-cycle review” and “end-cycle review” respectively.
[5] Exhibit R8, annexure MP3.
Before it can be said that a particular administrative action excludes liability for compensation, it must be determined that the administrative action made a significant contribution to the disease suffered by Ms Melder. I set out my reasons for this conclusion in Wang and Comcare[6] and I understand this reasoning is not in dispute in this matter.
[6] [2012] AATA 242, [53]-[56].
It is necessary also to determine the date on which the alleged injury was suffered, as events which occurred after that date cannot be said to have contributed to the injury.
The following issues arise for determination:
(1)When did Ms Melder suffer the disease, being an adjustment disorder with depression and anxiety?
(2)Were all, or any, of the events relied upon by Comcare “reasonable administrative action”?
(3)If so, was the administrative action or actions “taken in a reasonable manner”?
(4)If so, was the administrative action or actions taken “in respect of [Ms Melder’s] employment”?
(5)If so, did the action or actions contribute to Ms Melder’s condition to a “significant degree”?
For convenience I shall consider issues (2), (3) and (4) together in relation to each of the events relied upon.
CONSIDERATION OF THE ISSUES
Issue 1: When did Ms Melder suffer the disease, being an adjustment disorder with depression and anxiety?
The parties have agreed that the date on which Ms Melder suffered the disease was 7 July 2010, being the date on which she first sought medical treatment for the condition. In accordance with subsection 7(4) of the Act and on the basis of the record made by Dr Latif, to which I have referred, I am satisfied that this is correct.
Issue 2 in relation to the mid-cycle review: was this “reasonable administrative action”?
As the mid-cycle review was a performance review conducted as part of the Department’s normal staff management, I am satisfied that it was reasonable administrative action.
Issue 3 in relation to the mid-cycle review: was this administrative action “taken in a reasonable manner”?
Ms Melder does not complain about the manner in which the mid-cycle performance review was conducted and on the basis of the evidence of Brigadier Phelps I am satisfied that it was conducted in accordance with the Department’s requirements. I am satisfied that it was administrative action taken in a reasonable manner.
Issue 4 in relation to the mid-cycle review: was the administrative action in respect of Ms Melder’s employment?
In considering this provision of the Act, the Full Court of the Federal Court said in Commonwealth Bank of Australia v Reeve:
… in contrast to a disease that was contributed to by, or an injury or aggravation that arose out of, or in the course of, the employee’s employment, the exclusion in s 5A(1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.[7](original emphasis)
[7] [2012] FCAFC 21, [57].
The assessment process related directly to Ms Melder’s performance in her position as Head of the Systems Program Office. I am satisfied that the administrative action was in respect of her employment.
Issue 2 in relation to the end-cycle review: was this “reasonable administrative action”?
As was the case in relation to the mid-cycle review, the end-cycle review was part of the ordinary management processes of the Department. Ms Melder does not claim that the process itself was not reasonable. I am satisfied that the conduct of this review was reasonable administrative action.
Issue 3 in relation to the end-cycle review: was this administrative action “taken in a reasonable manner”?
When Brigadier Phelps conducted Ms Melder’s end-cycle review he gave her ratings against expected results which included not effective, partially effective and fully effective. As required, he included comments and recorded action to be taken.[8]
[8] Exhibit R8, annexure MP3.
Although Ms Melder was shocked upon learning of Brigadier Phelps’ assessment of her performance and did not agree with it, she was given the opportunity to respond, which she did in some detail. Her request for time to do this was granted.
In her response Ms Melder alleged that she was being “singled out” because she was a female Director with only eight months experience in her position. She alleged also that Brigadier Phelps had sought feedback from her staff without her knowledge which demonstrated non-ethical behaviour on his part, a lack of loyalty to her and an abuse of power as it was a form of harassment.[9] It was also put that Brigadier Phelps failed to take into account evidence favourable to Ms Melder.
[9] Exhibit R8, annexure MP4.
Brigadier Phelps followed the procedures of the Department and referred these allegations to Brigadier Horrocks who at the time was Acting Head Land Systems.[10]
[10] Exhibit R8.
On the evidence before me I am satisfied that Brigadier Phelps acted appropriately in conducting the end-cycle review and that Ms Melder was given the opportunity to respond to his assessment. While Ms Melder formed the opinion that he acted improperly, having considered all of the evidence I am satisfied that there is no basis for finding that he did so. I am not satisfied that Brigadier Phelps’ conduct in seeking comments from members of Ms Melder’s team was inappropriate. I am satisfied that this administrative action was taken in a reasonable manner.
Issue 4 in relation to the end-cycle review: was the administrative action in relation to Ms Melder’s employment?
For the reasons stated in reference to the mid-cycle review I am satisfied that the action was in relation to Ms Melder’s employment.
Issue 2 in relation to the meeting with Mr O’Callaghan and Mr Densten on 10 June 2010: was this “reasonable administrative action”?
This meeting was called by Mr O’Callaghan as a result of Mr Denster’s complaint about the manner in which he was being treated by Ms Melder. I am not satisfied that it was inappropriate for Mr O’Callaghan to call, and take part in, the meeting. The meeting was called promptly once the complaint was made. On this basis I am satisfied that this was reasonable administrative action.
Issue 3 in relation to the meeting with Mr O’Callaghan and Mr Densten on 10 June 2010: was this administrative action “taken in a reasonable manner”?
Prior to the meeting Mr O’Callaghan told Ms Melder that there were three issues of concern, namely, the text message she had sent to Mr Denster, the email she sent and the comment she had made to him. Ms Melder agreed that she had taken these actions. She did not request that the meeting planned for later that day be postponed.[11]
[11] Transcript of Ms Melder’s evidence 11/06/13 p.46.
Mr O’Callaghan made a detailed note of the meeting.[12] On the basis of his evidence I am satisfied that it is an accurate record.
[12] Exhibit R9, annexure KO3.
During the meeting both Ms Melder and Mr Densten were given the opportunity to raise their concerns. Mr O’Callaghan set out his expectations as to the manner in which Ms Melder and Mr Denster were to conduct themselves in future. He concluded the meeting by advising Ms Melder that he would brief the Acting Director and seek her guidance and facilitate a further meeting between Mr Densten and Ms Melder the following week.
Ms Melder is concerned about several aspects of the manner in which the meeting was conducted, in particular that:
·Mr O’Callaghan’s assessment of the nature of her conduct was incorrect;
·she was not advised in advance of the reason for the meeting;
·she was not advised of the detail of Mr Denster’s complaint;
·she was not advised whether a determination was to be made after the meeting;
·she was not advised of her appeal rights if a determination was made;
·she was not given a right to respond or to exercise her rights to have the conduct of the meeting reviewed.
It was argued on behalf of Ms Melder that Mr O’Callaghan should not have conducted the meeting as one of the issues of concern to Ms Melder was that Mr Densten was showing greater loyalty to Mr O’Callaghan than he was showing to her as his immediate supervisor. It was argued also that Mr O’Callaghan’s statement during the meeting that a claim made by Ms Melder amounted to a slander of Mr Denster was incorrect.
It is clear from her evidence that Ms Melder did not agree with all of the views expressed by Mr O’Callaghan during the meeting. I accept also that his statement that Ms Melder had slandered Mr Denster was incorrect. However, the manner in which the administrative action was taken does not have to be shown to be perfect. The requirement of the Act is that the manner in which the action is taken be “reasonable”.
I am satisfied that the criticisms which have been made of Mr O’Callaghan’s conduct of the meeting are minor. Further, in considering the manner in which the action was taken, I take into account that Ms Melder is an experienced and senior public servant. I am satisfied that the meeting was conducted courteously and fairly. I conclude that the manner in which the administrative action was taken was reasonable.
Issue 4 in relation to the meeting of 10 June 2010: was the administrative action in respect of Ms Melder’s employment?
The meeting was held to address issues which had arisen between Ms Melder and a member of staff directly supervised by her. It related directly to her performance of her role as Director. I am satisfied that the action was in respect of her employment.
Issue 5: Did any or all of the administrative actions contribute to Ms Melder’s condition to a “significant degree”?
It may be helpful to look at all the circumstances of a period of employment in determining the contribution of one or more particular events to the development of a condition from which an employee suffers. However, if a particular administrative action is relied upon to exclude a disease from the definition of an injury which is compensable under the Act, it is necessary for the decision maker to be satisfied that the particular administrative action itself contributed to the disease to a significant degree.
I accept Ms Melder’s evidence that after the mid-cycle review in March 2009 and before she learned of Brigadier Phelps’ assessment of her performance in the end-cycle review in September 2009, she believed that she was performing well.
Dr Rose, Consultant Psychiatrist, assessed Ms Melder at the request of Comcare’s Solicitors on 17 September 2012. In his report of the same date[13], he noted a history of complaint taken from Ms Melder which commenced in October 2009 when she was shocked to learn that her performance at work had been assessed not to be satisfactory. There is no reference in the history taken by Dr Rose to the effects of the earlier mid-cycle review.
[13] Exhibit R6.
Ms Melder was assessed by Dr Kaplan, Consultant Psychiatrist, on 19 November 2012 at the request of her Solicitors. In his report of 20 November 2012[14] he records a “History of Work Stresses” in which the first stressful event is recorded as having occurred in July 2009 when Ms Melder’s supervisor gave an appraisal that she was partially effective.
[14] Exhibit A3.
On the basis of this evidence I am satisfied that the mid-cycle review did not make a significant contribution to Ms Melder’s disease, namely adjustment disorder with depression and anxiety. For the reasons I gave in Wang and Comcare, to which I have already referred,[15] it follows that although this action was reasonable administrative action carried out in a reasonable manner, it does not exclude the disease suffered by Ms Melder from the definition of “injury” under the Act.
[15] See paragraph 30, above.
Both Dr Kaplan and Dr Rose record references to the end-cycle review and the meeting of 10 June 2010 in the respective histories of relevant work events taken by each of them.
In the opinion of Dr Kaplan:
As a result of what she described as ongoing bullying and victimisation which occurred over a prolonged period of time in the course of her work, she became increasingly anxious and depressed, and eventually decompensated and ceased work. Her condition is best characterised as an Adjustment Disorder with Mixed Anxiety and Depressed Mood.[16]
[16] Exhibit A3 p.9.
Dr Rose reported:
The claimant’s psychological condition is clearly related to Ms Melder’s perception that she had been unfairly treated at work. I would suggest that the escalating sequence of disciplinary procedures and her growing feelings of dissatisfaction about those procedures caused her claimed psychological condition.[17]
[17] Exhibit R6 p.7.
Ms Melder gave evidence that she was “shocked” when she learned of the end-cycle assessment made by Brigadier Phelps. I am satisfied that she was concerned as to the conduct of the meeting with Mr O’Callaghan and Mr Densten, which occurred within one month before she consulted Dr Latif complaining of being stressed at work.
I am satisfied that the end-cycle assessment and the meeting of 10 June 2010 each contributed to Ms Melder’s illness to a significant degree.
CONCLUSION
As I have found that Ms Melder’s disease was suffered as a result of two separate incidents, each of which was reasonable administrative action taken in a reasonable manner in respect of her employment, that disease is excluded from the definition of “injury” set out in section 5A of the Act. It follows that, in accordance with section 14 of the Act, Ms Melder is not entitled to compensation in respect of this condition.
Liability is excluded even though the disease suffered by Ms Melder was also a result of other aspects of her employment which are not excluded.[18]
[18] Hart v Comcare [2005] FCAFC 16.
The reviewable decision, being the decision of Comcare made 18 April 2012 that Ms Melder is not entitled to compensation for depressive disorder and anxiety, will be affirmed.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Associate
Dated 31 July 2013
Date(s) of hearing 11 and 12 June 2013 Counsel for the Applicant Mr M Carey Solicitors for the Applicant Slater & Gordon Counsel for the Respondent Ms C Dowsett Solicitors for the Respondent Sparke Helmore
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