Blatchford and Commonwealth Bank of Australia Ltd

[2011] AATA 735

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 735

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3454

GENERAL ADMINISTRATIVE DIVISION		)
Re		Justin BLATCHFORD

Applicant

And COMMONWEALTH BANK OF AUSTRALIA LTD

Respondent

DECISION

Tribunal Dr I S Alexander, Member

Date20 October 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.

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

Dr I S Alexander
  Member

CATCHWORDS

COMPENSATION - injury - reasonable administrative action taken in a reasonable manner - decision under review affirmed.

Safety, Compensation and Rehabilitation Act 1988 ss 4, 5A, 5B, 7(7), 14, 53(1)

Australian Postal Corporation v Sellick (2008) 101 ALD 245; [2008] FCA 236

Comcare v Mooi (1996) 69 FCR 439

Hart v Comcare (2005) 145 FCR 29; [2005] FCAFC 16

REASONS FOR DECISION

20 October 2011 Dr I S Alexander, Member

1.Mr Blatchford commenced employment with the Respondent, the Commonwealth Bank of Australia (CBA) on 31 March 2008 as an Associate Business Banker in Local Business Banking (LBB).

2.On 2 February 2010 his employment was terminated for misconduct.

3.On 4 February 2010 Mr Blatchford submitted a claim for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). He claimed that he had suffered a mental condition in the form of an “anxiety disorder” caused by “continual harassment by management” after he had failed to attend a work conference on 7 February 2009. The date of injury was nominated as 16 February 2009 which was the day when he first sought medical treatment from his general practitioner (GP).

4.On 15 April 2010 the Respondent received a supplementary claim, dated 4 March 2010, claiming compensation for an anxiety disorder. In this claim Mr Blatchford nominated the date of injury as 9 February 2009 but confirmed that he had first sought medical treatment on 16 February 2009. He claimed that he had been injured because of “harassment & invasion of privacy by various members of management & HR Department”.

5.A reconsideration decision by the Respondent dated 13 July 2010, denied liability for compensation and in this proceeding Mr Blatchford seeks review of that decision.

Background

6.In February 2009 Mr Blatchford accepted an invitation to attend a CBA work conference which ran from the evening of Friday, 6 February until the afternoon of Saturday, 7 February. The conference was at the Swissotel in the Sydney CBD and the overnight accommodation and other expenses were covered by the CBA.

7.On the Friday evening after checking into the hotel and attending a preconference dinner and drinks, Mr Blatchford left with a work colleague but did not return to the hotel and did not attend the conference on the Saturday morning.

8.Mr Blatchford was one of four employees who did not turn up for the conference on the Saturday but did return to work on the following Monday. Apparently one employee did not attend on Saturday and did not return to work at all.

9.He claims that he did not attend the conference because on the Friday evening he had received a message from his sister asking him to go to Newcastle urgently because of an emergency involving his grandparents.

10.On the Saturday morning Ms Konstantinou, Mr Blatchford’s team leader, received a voice message from him informing her that he would not be attending the conference. The exact contents of this message and when it was made and sent are disputed.

11.On Sunday evening Ms Konstantinou received a text message from Mr Blatchford and the contents of this message are also disputed.

12.When Mr Blatchford arrived at work on the morning of Monday, 9 February, he was immediately questioned by Ms Konstantinou as to his whereabouts on the weekend and asked why he did not attend the conference on Saturday.

13.He was subsequently approached by the team’s manager, Mr Hingorani, and asked why he did not attend the conference. The details of this conversation are also disputed.

14.Ms James, the General Manager, had decided that she should interview all the absentees and met with Mr Blatchford on Monday afternoon. Sometime after the interview Ms James again briefly approached Mr Blatchford to seek further clarification.

15.As a result of apparently conflicting explanations provided by Mr Blatchford the management team decided that a formal interview was required and that Mr Hingorani and Mr Terry, from human resources, should conduct that interview.

16.This interview was originally scheduled for Wednesday, 11 February but postponed to Friday, 13 February because Mr Blatchford wanted time to seek independent legal advice.

17.During this interview Mr Blatchford was again questioned about his reasons for not attending the conference.

18.On Monday, 16 February Mr Blatchford attended his GP who started him on medication and referred him to a psychologist for counselling.

19.Mr Blatchford returned to work on Tuesday, 17 February and in a meeting with Mr Hingorani and Ms Wiggins, the executive manager of HR, he was told about management’s concerns about his behaviour and was advised that he would be receiving a written first and final warning in respect of the discussed behavioural issues.

20.During the remainder of 2010 other disciplinary issues arose which led to the termination of Mr Blatchford’s employment on 2 February 2010 for misconduct.

21.The evidence before the Tribunal includes two written statements from Mr Blatchford, a written statement from each member of the management team including Ms Konstantinou, Mr Hingorani, and Mr Terry. All these individuals also gave oral evidence at the hearing.

22.The Tribunal also had the benefit of written reports from three psychiatrists two of whom also gave oral evidence at the hearing and a written report from Mr Blatchford’s GP.

Preliminary issues

23.Mr Blatchford submitted his first written compensation claim on 4 February 2010 almost twelve months after he became aware of the symptoms in respect of his claimed injury.

24.Section 53(1) states, interalia:

53 Notice of injury or loss of, or damage to, property

(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

(a) as soon as practicable after the employee becomes aware of the injury; or…

25.The Respondent submitted that they did not press the issue as to the delay in notification because of lack of prejudice.

26.The Respondent also submitted that the Tribunal’s jurisdiction was confined to considering the “Swissotel incident”, that is, the written claim for an injury in February 2009 caused by the actions of the CBA’s management regarding Mr Blatchford’s non-attendance at the conference.

27.The Respondent relied on the decision of Bennett J in Australian Postal Corporation v Sellick (2008) 101 ALD 245; [2008] FCA 236 at [49] for the proposition that the Act does not apply unless notice in writing of the injury for which compensation is being sought is given to the relevant authority.

28.After due consideration the Applicant agreed that the Tribunal’s jurisdiction in this proceeding was limited to the claim for an injury that occurred in February 2009.

29.The Tribunal agreed and determined that its jurisdiction in this proceeding was confined to a consideration as to whether Mr Blatchford suffered an injury in February 2009 caused by his employment as claimed in the only written claim before the Tribunal (see section 54(2) of the Act).

Issues and legislation

30.Mr Blatchford claims that in February 2009 he suffered a mental disorder that was caused by his employment. In particular he claims that it was caused by unreasonable and repeated questioning by members of his management team about his non-attendance at the conference on the Saturday and his whereabouts that weekend. He claims the questioning was unreasonable because his reasons were of a personal and private nature.

31.The Respondent does not concede that Mr Blatchford in fact suffered a mental disorder in February 2009 or if he did that it was caused by his employment.

32.However, alternatively, the Respondent submits that even if he did suffer a mental disorder caused by his employment, the disorder is not an injury within the meaning of the Act because he suffered his disorder as a result of reasonable administrative action and therefore is not entitled to compensation.

33.Section 14 of the Act states that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

34.Section 5A of the Act defines an injury for the purposes of the Act as:

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.

35.If Mr Blatchford did suffer a mental disorder in February 2009 it is agreed that the disorder is best characterised as a disease.

36.Section 5B of the Act defines a disease as:

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.

37.Section 4 of the Act defines an ailment as any physical or mental ailment, disorder, defect or morbid condition.

38.Therefore the issues to be decided by the Tribunal are:

(a)Did Mr Blatchford suffer a mental disorder in February 2009?

(b)If so, was it contributed to, to a significant degree, by his employment at the CBA?

(c)If so, was the mental disorder he suffered a result of reasonable administrative action taken in a reasonable manner in respect of his employment at the CBA?

39.An additional issue raised by the Respondent is whether Mr Blatchford’s claimed disease is not an injury for the purposes of the Act because of section 7(7) of the Act which states:

7 Provisions relating to diseases

…

(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

Evidence

40.In his written and oral evidence Mr Blatchford conceded that he was “quite drunk” when he left the conference dinner and describes sleeping in his car to sober up before driving to Newcastle on Saturday morning.

41.In his first written statement dated 1 March 2010 he claims that he had to leave the conference dinner on the Friday evening at about midnight “because of family issues up the coast” and that he sent a text message to his team leader, Ms Konstantinou, telling her that “my grandmother had knee replacement surgery which didn’t go very well and had gone up to see her”.

42.In his subsequent written statement dated 12 January 2011 Mr Blatchford claims that he received a telephone call after the conference dinner and drinks on the Friday evening “regarding a medical emergency” with his grandmother and because he could not find his team leader he sent her a text message letting her know that he had to leave.

43.In his oral evidence Mr Blatchford stated that he received a voice message from his sister to go to Newcastle as soon as possible to assist with the care of his grandfather who had dementia. He added his grandmother was still recovering from two knee replacements and unable to care for her husband because Mr Blatchford’s uncle, who was the grandfather’s primary carer, had left for reasons that were unclear.

44.In her written statement dated 25 October 2010, Ms Konstantinou stated that on the Saturday morning at about 7.00-7.30am she received a voice message from Mr Blatchford saying that he had to leave the previous night because he had received a call from his sister “with news that his grandmother was dying” and that he had rushed off to Newcastle. She tried to call Mr Blatchford but his phone was turned off and despite repeated phone calls was unable to contact him on Saturday. She added that on the Saturday one of Mr Blatchford‘s work colleagues had told her that it was not true that Mr Blatchford had to go to Newcastle.

45.In her oral evidence Ms Konstantinou confirmed that she had received a voice message on Saturday morning and in the message Mr Blatchford said that his grandmother was dying.

46.In cross-examination Mr Blatchford denied that this message included anything about his grandmother dying.

47.Ms Konstantinou also stated that on the Sunday evening she received a text message from Mr Blatchford at about 6.00-7.00pm in which he stated that he had misunderstood his sister’s voice message and that his grandmother was not dead.

48.A transcribed copy of this text message is in evidence before the Tribunal and reads as follows:

I will be in tomorrow dimi! My grandmother did die a couple of times while having surgery but they managed to revive her! Now in intensive care! Drunken me got my sisters message wrong. I’m leaving Newcastle now but I need to speak with you about possible leave tomorrow! See you soon.

49.In cross-examination Mr Blatchford initially denied sending this message but after prompting did recall that he did send a message on the Sunday evening. However, he disputed the contents of the transcribed message, but provided no plausible explanation or alternative.

50.In his second written statement Mr Blatchford stated that when he returned to work on the morning of Monday, 9 February he was immediately questioned by Ms Konstantinou as to his whereabouts over the weekend and asked about his reasons for leaving the work conference.

51.He stated that he told Ms Konstantinou that his “grandmother was sick” and that his family needed his help and claimed that she replied that he needed “to get ready to face the fireworks” because there were a number of people who left the conference without reasons.

52.In his oral evidence he said that he simply told Ms Konstantinou that he had to go to Newcastle because “of a situation with his grandparents”.

53.In her written statement Ms Konstaninou confused the days and stated that Mr Blatchford did not return to work until Tuesday and that when she spoke to him he was angry about having to attend the conference on a weekend. He also told her that he had misread his sister’s message and that his grandmother was not dying but only sick.

54.In her oral evidence Ms Konstantinou agreed that she had been mistaken in her statement and that Mr Blatchford did return to work on Monday morning but confirmed her recollection that he had told her that he had misunderstood his sister’s message because he was drunk and his grandmother was not dying. She also confirmed her impression that he was angry that the bank held the conference on a weekend.

55.Ms Konstantinou added that the meeting with Mr Blatchford lasted about half an hour and that she had counselled him about calling rather than texting and being contactable by telephone.

56.In cross-examination Ms Konstantinou denied telling Mr Blatchford that he “should expect fireworks” and claimed that she had a diary note of the meeting.

57.I note that documents subsequently provided by the Respondent did not confirm her claim that she had made a diary note.

58.In his second written statement, Mr Blatchford stated that shortly after his meeting with Ms Konstantinou, while sitting at his desk, he was approached by Mr Hingorani who also asked him about his whereabouts on the weekend.

59.In his oral evidence he claimed that that he gave Mr Hingorani the same explanation as he had given Ms Konstantinou and apologised for any inconvenience.

60.In his written statement dated 14 July 2010, Mr Hingorani stated that Mr Blatchford had told him that his grandmother had died and that was the reason he had to rush to Newcastle. He emphasised that he had the definite impression that Mr Blatchford’s grandmother had died and recalled offering his condolences as well as putting his hand on Mr Blatchford’s shoulder.

61.In his oral evidence Mr Hingorani was asked to explain how he came to speak to Mr Blatchford on the Monday morning. He stated that he had been aware that on Sunday Ms Konstantinou had received a message advising the reason for his absence at the conference on Saturday. He explained as follows:

So when I walked into the office and saw Justin I had not, at this stage, spoken to Dimitra. I understand anything else. I asked Justin what had happened. He turned around, he – and he told me that his grandmother had died. I expressed my condolences, put my hand on his shoulder and said, you know, ‘We’ll talk about this again later. I’m sorry to hear that’s happened.’

62.In cross-examination Mr Hingorani explained that his meeting with Mr Blatchford on the Monday morning was not a formal meeting but more of “quick chat” in the context of concern about Mr Blatchford’s welfare and at the time he could not know what was to unfold.

63.In his second written statement Mr Blatchford stated that at approximately 12:00 pm on the Monday he received a request to meet with Ms James, the General Manager, at 3.30 pm. At this meeting he claims that Ms James asked him to resign and told him that his behaviour by leaving the work conference without advising his superiors was not acceptable and that he should have called rather than send a text message. His reply was to the effect that he was not up to talking because he was sad about his grandmother.

64.In his oral evidence Mr Blatchford said that when he refused to resign Ms James told him that he had no respect for management and then asked for physical proof of as to his whereabouts on the weekend.

65.He added that Ms James approached him about a half an hour later to clarify something but was unable to recall what it was about.

66.In his second written statement Mr Blatchford indicated that Ms James had asked him to provide a copy of a receipt for purchasing petrol which he claims he gave to her assistant on Tuesday morning.

67.Mr Blatchford also claimed that he told Ms James about his grandparents and his grandfather’s dementia.

68.In a written statement dated 19 July 2010, Ms James stated that on the Monday after the conference she met with Mr Blatchford alone to discuss his failure to attend the Saturday section of the conference. The meeting went for about half an hour and she asked Mr Blatchford to explain where he was and why he did not effectively communicate where he was. She believed that Mr Blatchford had left a voicemail to the effect that his grandmother had died and that she had been resuscitated. Mr Blatchford told her that this was incorrect and that his grandmother had become ill but did not provide an explanation which made sense.

69.Mr Blatchford was one of four people who failed to attend the conference. She had met with three of them with the fourth person having resigned before returning to work.

70.She informed Mr Blatchford that his conduct was unprofessional and that management had a genuine concern that something may have happened to him.

71.There was no specific outcome from this meeting but she asked Mr Blatchford whether “he really wanted to be working here because his behaviour indicated otherwise”.

72.Mr Blatchford indicated that he wanted to continue working for the bank.

73.She met with Mr Blatchford a second time for about fifteen minutes because “his story kept changing” and she wanted clarification about what had happened.

74.Mr Blatchford was not happy that she approached him again but did not say that he was being harassed.

75.Another employee gave her copies of text messages sent by Mr Blatchford that she found quite threatening because he had threatened to “get me”.

76.A total of four staff members all of whom demonstrated the same unprofessional behaviour were put on a written warning.

77.Ms James provided a later statutory declaration dated 19 August 2011 which included an attachment in the form of a certified transcript of a series of text messages that Mr Blatchford had sent to two of his work colleagues between 13 February 2009 and 18 February 2009.

78.In the declaration Ms James stated:

(a)that at the time she had prepared her statement of 19 July 2010 she had not had an opportunity to review the text messages since she had seen them in February 2009 and had prepared her statement based on recollection;

(b)she accepted that the texts did not contain a specific threat to “get me” but did recall that that she had felt threatened because she had been specifically named;

(c)she had made an error in her statement with respect to the four employees who were absent from the conference in that they did not all receive written warnings.

79.In regards to those employees:

(a)one employee was able to substantiate a family illness but was counselled about the need to personally call his manager rather than send a text next time he was unable to attend work or a work function;

(b)one employee was able to supply a certificate confirming urgent dental treatment so no action was taken against him; and,

(c)one employee could not substantiate why he was not present at the conference and tendered his resignation.

80.I note that in his oral evidence Mr Hingorani confirmed that four employees including Mr Blatchford were questioned about their absence from the Saturday conference. He explained that two employees had valid reasons for their absence and during an interview with himself and Mr Terry while a third employee resigned.

81.In her oral evidence, Ms James explained that the conference was held on Saturday in order to minimise any impact on clients and another area of the bank was able to be recruited to fill in over the weekend.

82.She explained she was the conference organiser and was responsible for the planning, selection of speakers and the sourcing of a budget. The purpose of the conference was for training and motivation and an opportunity to get her whole team together for an extended period of time.

83.She recalled being told by either Mr Hingorami or Ms Konstantinou on the Saturday that there were a few people missing including Mr Blatchford. She added that, in fact there were five people missing with one person who did not come back to work at all.

84.She had her PA set up meetings with the four absentees when they returned to work on the Monday because she wanted to know first-hand why people would come on the Friday night, check into the hotel and not turn up on the Saturday.

85.She had put her “heart and soul” into this particular event and had taken a lot of risk in organising an off-site meeting.

86.She had a similar conversation with the four employees directed solely at the conference and non-attendance because she wanted to understand why they did not attend.

87.Her strongest recollection of the meeting with Mr Blatchford was that she had some difficulty in understanding his explanation about his grandmother’s illness and did not recall any mention of his grandfather or that he suffered from dementia.

88.She says she would have remembered any mention of dementia because of her own experience with a member of her family who suffers from dementia.

89.When asked to explain the importance of honesty of someone in Mr Blatchford’s position she said that honesty was imperative and one of five core values in her department and that in her experience people who are not honest in their day-to-day work activities tend not to be honest in other activities. She expressed the opinion that concern over honesty arises when a person gives an explanation that does not make sense and that honesty is a significant issue for the bank because “whenever we start to see honesty issues they typically lead to bigger things”.

90.When asked to explain what was in her mind when she first met with Mr Blatchford she answered as follows:

For me it was - it was a couple of - it was just the lack of professionalism. So if someone didn’t want to attend then - then they could have told us that before they went, but if someone does attend then we’re effectively responsible for their wellbeing and then so to check into a hotel and never check out and not proactively let someone know that upfront is unprofessional behaviour. In my entire working career I’ve been at a lot of offsite meetings. I’ve never heard or had anyone do that in the past, so I felt it was completely appropriate for me to ask everyone what had happened.

91.Ms James was uncertain when the second meeting with Mr Blatchford actually occurred but described it as a relatively brief and informal conversation where she had asked him to clarify some conflicting information she had been given in the interim.

92.Ms James said that after she had completed her meetings she instructed Mr Hingorani to substantiate everyone else’s stories, manage them on a case-by-case basis and then let her know what happened. She added that this meant getting evidence, finding out what happened, working with Mr Terry from human resources and then deciding what needs to be done.

93.In response to a question from the Tribunal, Ms James explained that the conference was seen as a very important event because:

We established the new way of working with our clients with the hope that we were bringing everybody into an environment that was professional and that everyone was seeing the job as professional and not a call centre agent and the idea was that we were going train everybody and that the local business banking associates would then be developed into business bankers, and that was kind of the career progression through the bank. And having a conference was part of that development program and so we had had it the year before and that went well, we didn’t have any problems so we were all very pleased with the outcome so we said let’s do it again and so we had it again and then we had all the problems and so in the third year we removed the Friday night and we just ran it on Saturday to Saturday afternoon and then we decided not to have it any more.

94.In cross-examination Ms James stated that she was unable to recall exactly when she became aware that Mr Blatchford was absent from the conference.

95.She was also unable to recall when she was made aware of Mr Blatchford’s voicemail or its contents.

96.At the first meeting with Mr Blatchford she did not ask him to resign but had the same conversation with all four people where she told them “if this wasn’t a place they wanted to work, then they should consider resigning.”

97.Her conversation with Mr Blatchford was primarily about understanding what happened on the weekend and not about resignation.

98.She did ask Mr Blatchford to substantiate his whereabouts on the weekend and she recalled that he said he had a petrol receipt.

99.She had received additional information after her first meeting with Mr Blatchford that conflicted with information he had given so she went to see him in order to seek further clarification.

100.She had been disappointed and frustrated because of the number of absentees from the conference.

101.She accepted that people can object to being asked personal details which have no necessary connection to how they perform in their professional life. She added, however, that when an employee is absent from work, for example, when they were sick, it was accepted practice that they are asked to substantiate with a doctor’s certificate.

102.In her meetings with Mr Blatchford he did not specifically object to answering questions because it was a private matter.

103.In his written statement Mr Hingorani stated that later in the day on Monday Ms James had informed him that Mr Blatchford told her that his grandmother had a knee problem with no mention of death.

104.As a result of a number of apparent contradictions management began to question Mr Blatchford’s explanation and Mr Hingorani sent Mr Blatchford an email to arrange a meeting with himself and Mr Terry for Wednesday, 11 February 2009.

105.In his oral evidence Mr Hingorani explained that that his request for a formal meeting came about because at the end of the day on Monday it became apparent that there were significant inconsistencies in Mr Blatchford’s story as to why he was absent from the conference. After consultation with human resources, it was felt to be prudent, as an employer, to have a more formal meeting with Mr Blatchford. The management team felt that Mr Blatchford had not been entirely honest in his portrayal of the weekend’s events and they had concerns in respect of trust, integrity and honesty which were relevant issues in respect of his conditions of employment

106.Mr Hingorani added that questions of trust and honesty were particularly relevant in the context of an employer where employees like Mr Blatchford manage the finances and look into the accounts of clients.

107.Mr Hingorani was asked to explain the importance of the ‘Statement of Professional Practice’ in the pre-employment declaration signed by Mr Blatchford which reads as follows:

I understand and accept that financial services is a profession founded on very high standards of personal integrity and conduct which requires absolute honesty and it is a condition of your employment with ComSec to adhere to ComSec’s statement of professional practice.

108.He replied as follows:

So, being a financial services provider and dealing with – and Justin, as an employee within our organisation at the time, was given the ability to be exposed to many clients’ accounts. And, unfortunately, our bank as has other banks have had instances where client, where staff members have chosen to be fraudulent when they’ve had access to the same levels that Justin has had to client’s accounts, essentially being dishonest and untrustworthy. The events of the week, of the Saturday conference per se were not what led us to treat this so seriously. It was the inconsistency and incongruency in Justin’s version of events with three different managers on the Monday itself which then led us to say, sit back on the Monday evening and myself in consultation with HR to seriously question the honesty that Justin was giving us and if that was in question, then it certainly could put our client’s accounts and the bank’s reputation in jeopardy.

109.In his written statement Mr Blatchford stated that he declined to attend the Wednesday meeting because had felt that the matter had already been dealt with and that the further meeting request made him feel as though he was being harassed about his family situation and he was tired of explaining himself.

110.In his reply to Mr Hingorani’s email, Mr Blatchford in fact stated that he was unable to attend because he was “in the process of seeking independent legal advice” and would not speak to anybody until he got that advice. He also stated that he felt he was being harassed and was tired of explaining himself.

111.In Mr Hingorani’s reply he stated “please feel free to speak to counsel about this matter. I am attempting to clarify recent events with you which is a reasonable request” and indicated the he would reschedule the meeting for Friday, 13 February. He also suggested Mr Blatchford could have an observer if he wished.

112.In his second written statement Mr Blatchford indicated that he felt that he had no option but to attend the meeting on Friday, 13 February but was unable to recall why it had been rescheduled.

113.He stated that during the meeting he was questioned about his grandmother’s illness and that he explained that his grandmother had recently had a knee replacement and was the sole carer for his grandfather who suffered from dementia. He also claimed that his mother had called and asked him to go to Newcastle as soon as possible to help out.

114.I note that in cross-examination he conceded that his grandmother’s operation had in fact been performed “a couple of months prior” to the Swissotel incident.

115.In his oral evidence Mr Blatchford said that the meeting felt like an interrogation and that he was questioned about what was wrong with his grandparents “in specific detail”.

116.He recalled that he was offered the opportunity to have another person present for support but did not accept the offer because he believed that he had not done anything wrong and did not need to defend himself. However, in cross-examination he said that he could not get someone from the union and felt obliged to go the meeting anyway.

117.In his written statement Mr Hingorani stated that when Mr Blatchford was told that the meeting was being held because of serious discrepancies in his story, Mr Blatchford’s only defence was that it was a very emotional and confusing weekend and that he may have got his facts wrong.

118.Mr Hingorani claimed that Mr Blatchford said that he had received a text that his grandmother was in a serious condition and was in intensive care and that she had died a couple of times but had been revived. When asked, Mr Blatchford apparently also admitted that in fact he did not visit his grandmother on the weekend.

119.In evidence before the Tribunal is a copy of several emails from Mr Hingorani to Ms James, Mr Terry, Ms Wiggins and Ms Konstantinou dated 13 February 2009 at 5.45pm. This email is a contemporaneous summary of the issues discussed with Mr Blatchford in the meeting on 13 February:

Dan Terry and myself met with Justin today at 1.30pm to discuss his version of events surrounding his non-attendance at the conference on the weekend.

We discussed the following:

·Justin admitted he drank too much – but also acknowledged that he was an adult and should have controlled himself

·He left the bar with X to walk to a bus so X could get his car, drive home and get some clothes (despite being drunk)

·On the way to the bus he checked his voicemail and had a message from his sister advising there was a medical issue with his grandmother

·He got a cab to Croydon, slept in his car and then drove to Newcastle once sober – approx 10am on Saturday

·He called S to ask that he collect his bags – but did not call his TL at that time

·He stated clearly that when he arrived at Newcastle on Saturday he discovered that his grandmother had had knee surgery and some complication during it – but was resting well in the ward of the hospital

·Also stated that he did not personally visit his grandmother despite rushing back because of her health

I queried as to why then on Sunday night via text to his TL; and On Monday in person with myself would he state that:

·His grandmother died a couple of times but was resuscitated

·Was currently in Intensive Care

·Justin’s only response was that it was a confusing and emotional weekend

·I further stated that despite the confusion/emotion – having facts wrong like his grandmother having died or having knee surgery; and being in a ward as opposed to Intensive care were significant things to get wrong

I expressed that this was a trust issue and that his story did not add up.

Further, would take the weekend to decide what to do and come back to him – he understands that we may review his employment with us.

120.In the email Mr Hingorani noted that at the conclusion of the meeting that Mr Blatchford was told that the matter would be considered over the weekend and that he would be informed of the decision the following week. He also noted that Mr Blatchford was aware that his employment may be reviewed.

121.In cross-examination Mr Blatchford claimed he could not remember the details of this meeting and was unable to explain the inconsistencies with his version of events.

122.In a written statement dated 14 July 2010 Mr Terry confirmed that he and Mr Hingorani met with Mr Blatchford on Friday, 13 February 2009. The meeting lasted about half an hour and the themes of the discussion were that Mr Blatchford “was protesting about having to answer any questions about his whereabouts on that Saturday. He claimed it was personal and none of our business that he didn’t have to tell us anything of his activities on that day”.

123.In his oral evidence he confirmed that insofar as he could recollect, the email sent by Mr Hingorani on 13 February was an accurate summary of the discussion at the meeting. He said that he had a strong recollection of the meeting because he had been “perplexed” as to why Mr Blatchford kept changing his story.

124.In cross-examination when asked why it mattered that an employee changed details about their personal life that did not bear any obvious connection to their job performance, he explained that the bank had a fairly “overarching view about honesty and integrity” and if an employee is openly willing to lie to their employer they need to be reminded that honesty is critical to the employment relationship. He added that the bank needs to be able to trust its employees and if they wilfully lie on any matter it raises a question as to whether they can be trusted in other matters.

125.On Monday, 16 February 2009, Mr Blatchford consulted Dr Chan, his GP.

126.In a written report dated 4 June 2010, Dr Chan confirmed that he saw Mr Blatchford on 16 February with “acute depression, panic attacks abdominal pain and diarrhoea”.

127.Mr Blatchford told Dr Chan that he had been harassed at work with verbal abuse from his co-workers and supervisors and described symptoms of acute anxiety and depression as well as trouble sleeping.

128.Dr Chan prescribed Zoloft, an antidepressant, as well as Xanax and referred Mr Blatchford to a psychologist for counselling.

129.In his oral evidence, Mr Blatchford stated that he did not see the psychologist because he was stubborn and he thought that the medication “would be the magic fix, and it wasn’t”.

130.Dr Chan’s practice notes indicate that he saw Mr Blatchford again on 24 February 2009. The entry, however, was brief and illegible.

131.There was no other relevant contemporaneous medical evidence.

132.The later reports and oral evidence of the three psychiatrists did not assist the Tribunal with respect to the events of February 2009.

133.In his written statement, Mr Hingorani indicated that after consideration of the matter over the weekend it was decided that Mr Blatchford be issued a written first and final warning.

134.On Tuesday, 17 February 2009, Mr Hingorani and Ms Wiggins met with Mr Blatchford.

135.The issues discussed in the meeting were set out in an email sent to Mr Blatchford by Mr Hingorani after the meeting on Thursday, 19 February and included the following :

·The LBB management team found significant conflicts regarding your version of events as to why you did not attend the LBB conference on Saturday 7^th Feb

·It is acknowledged that Saturday is generally personal time – however, in by accepting the conference invitation, your whereabouts and explanation of such on this day became a work-related issue

·It is also acknowledged that personal circumstances can result in staff members not being able to attend work or work-related events; and providing that reasonable steps have been taken to notify management asap this is acceptable

·As a result – the non-attendance at the conference per se is not the issue – rather, it has been the explanations provided to your team leader, myself and Karen James (GM LBB) that are in issue

·Specifically – the versions of events have significant conflicts and this has led to us to question the trust and integrity in the relationship

136.At the end of the meeting Mr Blatchford was advised that a first and final warning in respect of the discussed behavioural issues would be issued.

137.In response to a question from the Tribunal, as to why a first and final warning had been given, Mr Hingorani responded that it was “because of the seriousness of the issue. Trust and honesty are paramount to being a respected financial service provider.”

138.During cross-examination Mr Hingorani was vigorously questioned about the need for the frequent meetings with Mr Blatchford in the two weeks after the conference. Mr Hingorani explained that the three conversations that occurred on the Monday were about understanding what happened on the weekend. However, once it became apparent to the management team that there were inconsistencies with Mr Blatchford’s explanation, thereby raising issues with regard to trust and honesty, it was decided that human resources needed to be consulted. Thereafter the matter was conducted with the advice and guidance of human resources.

Consideration of the evidence

139.Despite the various written statements and the somewhat lengthy oral evidence before the Tribunal, a reliable account of the events of February 2009 has not been achieved. The evidence can best be described as somewhat confusing with much of it being repetitive and riddled with inconsistences and contradictions. The reliability of most of the evidence has been limited by a significant reliance on retrospective recollection with relatively little contemporaneous documentation.

140.In my view, the fact that Mr Blatchford did not submit his claim until almost twelve months after the relevant events in February 2009 contributed significantly to the difficulties with the evidence.  As he did not inform his employer about his alleged mental disorder at the time he became aware of his symptoms means that there was no appropriate medical certification and no contemporaneous assessment of the relevant circumstances.

141.Also when one considers that Mr Blatchford was significantly affected by the alcohol he consumed on the Friday evening, it is not surprising that the reliability of his recollection of the events on the Friday and Saturday may have been impaired.

142.In general I found the evidence of Mr Blatchford unconvincing as not only was his own written and oral evidence contradictory but also inconsistent with much of the other evidence including the limited contemporaneous documentary evidence.

143.Ms Konstantinou’s oral and written evidence contained significant inconsistencies and was generally unconvincing whereas, notwithstanding some inconsistencies, I found the evidence of Mr Hingorani and Ms James to be more persuasive.

144.The most persuasive evidence, however, was the text message sent to Ms Konstantinou on the Sunday and the contemporaneous summary of the interview with Mr Blatchford on Friday, 13 February.

145.Notwithstanding the difficulties with the evidence I am satisfied that the following events occurred.

146.Some time on the evening of Friday, 6 February 2009, Mr Blatchford received a message from his sister asking him to go to Newcastle. The precise content of this message remains unclear.

147.After having sobered up in his car overnight, Mr Blatchford drove to Newcastle on the morning of Saturday, 7 February. What actually happened in Newcastle remains unclear as there are several contradictory versions none of which are supported by any corroborative evidence.

148.Mr Blatchford sent a message to Ms Konstantinou which she received on the Saturday morning. The message informed her that he would be absent from the conference on Saturday because his grandmother was dying. On balance I have preferred Ms Konstantinou’s recollection as to content of this message because Mr Blatchford’s recollection may be impaired as a result of his alcohol consumption on the Friday evening.

149.On the evening of Sunday, 8 February, Ms Konstantinou received a text message from Mr Blatchford informing her he would be returning to work on Monday morning. This message also indicated that his grandmother died a couple of times while having surgery but had been revived and was in intensive care.

150.Mr Blatchford returned to Sydney late on Sunday evening and went to work on Monday morning.

151.On arriving at work on Monday, Mr Blatchford was interviewed by Ms Konstantinou and was asked to explain what had happened on the weekend. The precise content of this conversation is unclear. Mr Blatchford’s account in his written statement was inconsistent with his oral evidence and in her written statement Ms Konstantinou was confused as to which day the interview actually occurred.

152.Later on Monday morning Mr Hingorani approached Mr Blatchford and asked what had happened on the weekend. He was told that Mr Blatchford’s grandmother had died. Although Mr Blatchford denies saying this I have preferred Mr Hingorani’s recollection because announcing the death of a close relative would generally be seen as a fairly dramatic incident that is likely to leave a strong impression and is not easily forgotten. In addition, in the written summary of the meeting on Friday, 13 February, Mr Hingorani indicated that he had asked Mr Blatchford why he had told him that his grandmother had died in their conversation on the Monday. Mr Blatchford was unable to provide a satisfactory explanation.

153.On Monday afternoon Mr Blatchford met with Ms James and according to her evidence, when asked about the reasons for his absence, he indicated that he had to go to Newcastle because his grandmother had become ill. Mr Blatchford’s evidence as to what was actually said in this meeting clearly conflicts with Ms James’ version and without the benefit of any contemporaneous notes it difficult to conclude which version is correct. Nevertheless, on balance, I found Ms James’ evidence more persuasive.  

154.Ms James briefly spoke to Mr Blatchford again on the Monday with neither party having a clear recollection as the content of the conversation.

155.Mr Blatchford was asked to attend a meeting with Mr Hingorani and Mr Terry on Wednesday, 10 February. He declined to attend this meeting because he wanted independent advice.

156.The meeting was postponed until Friday, 13 February and Mr Blatchford was told he could have an independent observer present but chose not to.

157.At this meeting Mr Blatchford stated that when he arrived in Newcastle his grandmother was in hospital with complications after knee surgery and denied having said that his grandmother had died or was in intensive care.

158.At the conclusion of the meeting he was told that a decision would be considered over the weekend and that his employment with the bank may be reviewed.

159.On Monday, 16 February Mr Blatchford consulted his GP.

160.On Thursday, 19 February Mr Blatchford was informed that he would be issued with a written first and final warning

Consideration of the issues

161.I must now decide whether the evidence before me supports a conclusion that in February 2009 Mr Blatchford suffered a mental disorder that satisfies the definition of a disease within the meaning of the Act.

162.On the basis of Dr Chan’s report of 4 June 2010, outlined above, I am satisfied that Mr Blatchford suffered with symptoms of acute anxiety and depression as well as having trouble sleeping such that he needed treatment with appropriate medication.

163.I am satisfied that on or about 16 February 2009, Mr Blatchford suffered a mental disorder in the sense that he suffered “a condition that is outside the boundaries of normal mental functioning and behaviour” (see Comcare v Mooi (1996) 69 FCR 439, 444).

164.Furthermore, I am satisfied that the evidence before the Tribunal clearly points to a conclusion that his failure to attend the conference on Saturday, 7 February and its aftermath contributed significantly to Mr Blatchford’s mental disorder.

165.The circumstances of Mr Blatchford’s failure to attend the conference on the Saturday and the series of meetings with management that led to a first and final written warning clearly contributed to the onset of his symptoms and the need for medical treatment.

166.Whether it was the meetings collectively or any one meeting in particular that caused his symptoms is arguable. However, on balance, I am satisfied that the meeting with Mr Hingorani and Mr Terry on Friday, 13 February, which was clearly a formal disciplinary meeting where he was informed that his employment was under review, was likely to have made the most significant contribution. There is a clear temporal relationship between the Friday meeting and the consultation with Dr Chan on the following Monday. There is also no evidence that Mr Blatchford was suffering these symptoms in the preceding months since the commencement of his employment at the CBA.

167.Therefore I am satisfied Mr Blatchford’s mental condition was contributed to a significant degree by his employment, which means that on or about 16 February 2009 Mr Blatchford suffered an injury in the form of a disease in accordance with section 5B of the Act.

168.The next issue I must decide is whether Mr Blatchford suffered his disease as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.

169.It was submitted on behalf of Mr Blatchford that his disease was triggered by the number of meetings he was required to attend and the number of members of management he was required to meet to explain his whereabouts on the weekend of 6/7 February 2009.

170.The Applicant further submitted that his disease was caused by meetings collectively rather than by any meeting in particular and that these meetings were unreasonable because of the sensitivity he exhibited about inquiries into his private life.

171.It was argued that the number of meetings was disproportionate when compared to the number of meetings that the other absentee colleagues were subjected to and that the inconsistencies in his explanations were caused by the unnecessary number of meetings.

172.I have some difficulty accepting Mr Blatchford’s submissions. I accept that he did not want to discuss the events of the weekend with the management team and perhaps with the benefit of hindsight the matter of his failure to attend the work conference on Saturday, 7 February could have been handled differently. However, in my view, the evidence does not support a conclusion that the actions of the management team were unreasonable or conducted in an unreasonable manner.

173.It is quite clear from the evidence that the events unfolded after Mr Blatchford had consumed a significant amount of alcohol on the Friday evening and then failed to attend the work conference the following morning. In the circumstances, Mr Blatchford’s behaviour and the manner in which he notified his management team about his absence can best be described as unprofessional.

174.The inconsistences in his explanations for his absence from the conference were already evident in the messages he had sent during the weekend. The reasons as to why Mr Blatchford was unable to provide a consistent and straight forward explanation for his absence at the conference are still unclear. The evidence does suggest, however, that on his return to work he was angry and defensive about his weekend activities for reasons that also remain unclear. The suggestion that the inconsistencies were caused by the frequency of Mr Blatchford’s meetings with management in my view has no merit.

175.I do not accept the suggestion that that the meetings with management were an attempt to inquire into Mr Blatchford’s private life or the lives of his family. On my view of the evidence, it would appear that Mr Blatchford volunteered information in an attempt to excuse his behaviour and got caught in his own confused perceptions.

176.Notwithstanding the above, my task now is to apply the legislation in accordance with the decision of the Full Federal Court in Hart v Comcare (2005) 145 FCR 29; [2005] FCAFC 16. I must ask myself whether the disease suffered by Mr Blatchford was as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.

177.I have already decided above that the actions of management in respect of Mr Blatchford’s absence from the conference significantly contributed to his mental disorder. Therefore the issue that must be decided is whether any these actions can be characterised as reasonable administrative action within the meaning of the Act and if so whether these actions were taken in a reasonable manner.

178.The first action was the meeting between Mr Blatchford and his team leader Ms Konstantinou. This meeting can clearly be characterised as an informal counselling action and in the context of Mr Blatchford’s conduct could only be described as reasonable. In my view it would generally be considered reasonable practice for a team leader to have an initial meeting with an employee when any conduct of the employee is in question. There is no persuasive evidence before the Tribunal to suggest that the manner in which Ms Konstantinou conducted this meeting was not reasonable.

179.The second action was the conversation between Mr Hingorani and Mr Blatchford on the Monday morning. In my view the evidence points to a conclusion that this was an informal approach by Mr Hingorani simply to enquire about what happened on the weekend and does constitute reasonable administrative action within the meaning of the Act.

180.The third action was the meeting with Ms James on the Monday afternoon. This meeting can be best characterised as an informal counselling action and in my view was reasonable in the circumstances. All the employees who returned to work on the Monday and were absent from the conference were asked to meet with Ms James. I accept her evidence that she had a significant commitment to the success of the conference and a genuine interest in knowing the reasons for the non-attendance of the four employees when they turned up for work on Monday.

181.In the circumstances, as described in the evidence, I believe Ms James was entitled to an explanation from the absentees and to reflect on their commitment to their employment.

182.There is no persuasive evidence before the Tribunal to suggest that Ms James conducted this meeting in a manner that was not reasonable.

183.The brief conversation that Ms James had with Mr Blatchford to seek some clarification in respect of their earlier meeting I do not consider to be a separate administrative action.

184.The fourth and perhaps most significant action was the meeting with Mr Hingorani and Mr Terry on Friday, 13 February which can be characterised as a formal disciplinary action.

185.Mr Blatchford submits that this action was not reasonable because he had already explained his absence from the conference on several occasions and that an extra meeting was unnecessary. He also submits that the number of meetings he had to endure was disproportionate in comparison to other absentee colleagues.

186.In my view these submissions miss the point in that this meeting was a formal disciplinary action that arose as a result of Mr Blatchford’s own conduct and his apparent inability to provide a consistent and coherent explanation for his absence from the conference. In effect, this meeting was an opportunity for Mr Blatchford to allay the concerns that had arisen in the minds of the management group as a consequence of his behaviour.

187.Therefore, I do not accept Mr Blatchford’s submissions and find that the meeting of 13 February 2009 was reasonable in the circumstances as described in the evidence. There is no persuasive evidence that the meeting was conducted in a manner that was not reasonable.

188.I note that in an email to Mr Hingorani, dated 23 February 2009, Mr Blatchford apologised for his behaviour and any inconvenience he had caused and admitted that he had been “rude and inconsiderate and could have dealt with the whole situation a lot more professionally”.

Decision

189.For the reasons set out above I am satisfied that in February 2009 Mr Blatchford suffered a disease as a result of reasonable administrative action taken in a reasonable manner in respect of his employment which means that it is not a disease within the meaning of the Act and he is not entitled to compensation.

190.As the issue regarding the injury has been resolved to have been as a result of reasonable administrative action taken in a reasonable manner, there is no need to consider the effect of section 7(7) of the Act.

191.The Tribunal affirms the decision under review.

I certify that the 191 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I S Alexander, Member.

Signed:         ........[sgd]........................................................................
           C. Taylor, Associate

Date/s of Hearing  22, 23 and 24 August 2011
Date of Decision  20 October 2011
Counsel for the Applicant         Chris Botsman
Solicitor for the Applicant          David Jones, Carroll & O'Dea Lawyers
Counsel for the Respondent     David Richards
Solicitor for the Respondent     Christine Tsekouras, Turks Legal