Carmen and Comcare
[2003] AATA 384
•28 March 2003
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2003] AATA 384
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/181
GENERAL ADMINISTRATIVE DIVISION ) Re THERESA VALERIE CARMEN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date28 March 2003
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION - whether applicant suffered an “injury” pursuant to the Safety Rehabilitation and Compensation Act 1988 – whether applicant’s employment materially contributed to the causation, aggravation or acceleration of a mild adjustment disorder with anxiety and depression – reasonable disciplinary action – failure to obtain a promotion, transfer or benefit in connection with employment
Safety Rehabilitation and Compensation Act 1988 section 4
ORAL REASONS FOR DECISION
28 March 2003 Senior Member WJF Purcell 1. This is an application for review of a decision of the respondent (Comcare) of 13 May 2002, which affirmed a determination of 22 January 2002, to disallow the applicant’s claim relating to “unspecified acute reaction to stress”, which she alleged she sustained on 29 November 2001.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. The applicant, who appeared on her own behalf, gave oral evidence, and called Ms S Glover as a witness. Mr Cole was counsel for Comcare, which called Ms R Murdoch, the applicant’s former supervisor, as a witness.
3. The applicant, who is 56 years of age, has been employed by the Australian Taxation Office (ATO) since 17 September 1973. Her current classification is Research Officer, ASO4, in the Tax File Number Integrity and Improvement Section. At all relevant times for the purposes of this review, she was employed in the Client Education and Communication Unit (the Unit). She took sick leave from 29 November 2001 until 26 February 2002, when she returned to work in a different unit at the ATO.
4. The applicant maintains that as a result of the stress caused to her by her supervisor, Ms Murdoch's attitude to her, and treatment of her over a 6-month period, she suffered a mental injury, and as a result of that injury was incapacitated for work for the period 29 November 2001 to 26 February 2002.
5. Comcare concedes that the applicant suffered an injury, a disease, namely "a mild adjustment disorder with anxiety and depressed mood", which arose out of or was contributed to in a material degree by the applicant's employment with the ATO; but submits that the condition arose out of a failure to obtain a benefit in connection with her employment, namely unrestricted access to flexi time provisions without regard to the fact that the manager has a duty to ensure that access to flexi time is governed by the operational requirements of the Unit. Comcare argues in the alternative, that the injury was a result of reasonable disciplinary action taken against her, and that the condition does not satisfy the definition of “injury” in section 4 of the Safety and Rehabilitation and Compensation Act 1988 (the Act), which defines “injury” as meaning:
“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;”
6. The applicant gave lengthy oral evidence. She presented as a mature experienced public servant in her field, who had by the year 2001, settled into a routine in accordance with the regime prevailing in the Unit, wherein she had been able to organise her working hours to enable her to anticipate regular flexi leave, by starting work early in the morning (say 7.15am to 7.30am), and building up sufficient flexi time to take three flexi days per month. She impressed me as a person rigid in her attitude, absolutely convinced of the righteousness of her cause and her conduct, and adverse to any change in her "comfort zone". She gave her evidence in a straightforward manner, but I consider that she outlined a selective and slanted history of events from her perspective. This does not mean that I disregard the whole of her testimony, but that I prefer other more reliable evidence in areas of dispute in the evidence.
7. Ms Glover gave oral evidence, and I accept her as a witness of truth. Comcare called Ms Murdoch, the applicant's former supervisor, who gave detailed evidence, and was cross-examined by the applicant. Ms Murdoch impressed me as a committed team leader, who with her background as a social worker, believed in, and relied upon the process of support, negotiation and consultation as a mode of management. She believed genuinely that the applicant would comply with her requests and directions eventually, and that there could be a change in the applicant's behaviour. I prefer Ms Murdoch's evidence to that of the applicant in any area of dispute in the evidence.
8. With that view of the witnesses I turn to the evidence in this matter. A perusal of the documentary evidence discloses that in February 2001 a directive was issued by the National Director of the ATO regarding flexi time. It appears that the directive was announced at a staff meeting in Adelaide, attended by the applicant on 19 February 2001. The applicant says that she does not remember the meeting, nor that she was informed that flexi hours were not to exceed 29 hours, 24 minutes, in any settlement period, ie any 4-week period.
9. On 14 May 2001 Ms Murdoch became Manager of the Unit. Ms Murdoch says that at the team meetings on 14 and 15 May 2001, and again on 22 May 2001, the applicant and the other staff were advised that operational requirements would drive flexi time arrangements, including the building up of flexi hours and the granting of flexi days. All staff were required to manage their flexi time, including their start and finish times, due to a concentration of work availability between 9.00am and 5.00pm when clients were most available. A perusal of the applicant's attendance record [Exhibit R2] discloses a pattern of her commencing work at between 7.15am and 7.30am most mornings, and finishing mostly at between 4.30pm and 5.00pm. She was in the habit of building up flexi time so that she could take 3 days flexi leave in each settlement period.
10. Ms Murdoch gave evidence that on 10 July 2001 she counselled the applicant about the building up of flexi time and the expectation that she not work before 8.00am. She advised the applicant also, that no excess flexi time would be approved, and that the applicant would lose any excess carry over that she might accrue. At a later meeting on 26 July 2001, the applicant was again counselled about building up flexi time, particularly starting at around 7.15am and 7.30am each morning. Ms Murdoch pointed out that the current Agency Agreement stated that the flexi time provision was driven by operational requirements, and that the applicant had a carry over of 40 hours 13 minutes as at 18 July 2001, which Ms Murdoch would not approve. It was agreed that the applicant would carry over 32 hours.
11. The applicant made an application for “Review of Action”, against Ms Murdoch's decision, and it was not until 3 December 2001 that she was advised by the Assistant Commissioner, Ms Granger, that her Review of Action had not been successful, and that Ms Murdoch's decision not to allow her to carry over all her flexi credits for the settlement period ending 18 July 2001 had been upheld.
12. On 9 August 2001 the applicant requested 2 flexi days. Ms Murdoch says that she advised the applicant that operational requirements in the Unit dictated that staff needed to be available during the hours of 9.00am and 5.00pm. Ms Murdoch requested the applicant to properly manage her flexi time, and not to commence work before 8.00am. A further meeting at which flexi time issues were discussed with the applicant was held on 5 September 2001. On 2 November 2001, again during the week beginning 12 November 2001, and on 19 November 2001 the applicant made requests for flexi leave.
13. On 21 November 2001 at a team meeting, during which the applicant took the minutes of the meeting, Ms Murdoch advised staff that they were not to commence work before 8.00am unless they were on fixed permanent part-time hours.
14. Ms Murdoch said in evidence that on the following day, 22 November 2001, the applicant forwarded her an e-mail before 8.00am, and Ms Murdoch sent an e-mail back to the applicant advising her that she was not to start work before 8.00am. Ms Murdoch sought advice then from the Manager of the Human Resources Section as what she should do. She was advised to issue a written direction, and provided with a pro forma. She drafted the direction in accordance with the pro forma, and provided it to the applicant on Friday, 23 November 2001. The direction is in the following terms:
“As your Manager, I am formally directing you to not start work before 8am on any day effective immediately.
This formal direction has been issued as a result of numerous attempts to advise you both in writing and verbally not to start work before 8am because there is a lack of work availability before this time. The most recent verbal direction was given to all staff at the WASA team hook up on Wednesday 21 November 2001. This advice has been recorded in the team minutes. A written advice was also sent you via email on Tuesday 20 November 2001.
Please be advised that if you breach this direction I will be seeking the delegate to formally charge you wi6h misconduct under section 13 of the public Service Act, 1999.” [T4/35]
15. Ms Murdoch said in evidence that she informed the applicant that she considered that as numerous attempts at seeking a compromise with her had failed, and that Ms Murdoch's numerous written and verbal requests for compliance had been futile, she felt that the applicant had left her with no other option. Ms Murdoch said also that until she was satisfied of a change in the applicant's attendance pattern the formal direction would apply.
16. At the request of the applicant, the ATO's Harassment Contact Officer, Mr Mark Dawes, requested a meeting with Ms Murdoch to be attended by himself and the applicant, on the afternoon of 23 November 2001. His record of the meeting reads:
“Valerie and I meet Rebecca Murdoch on the third floor. I opened the proceeding by saying Valerie was feeling harassed as she felt Rebecca did not believe she was doing any work before 8am. Valerie usually starts around 7.30am and there had been a CECU directive, I understand from Sandra Mulcahy, that no CECU officers were to start work before 8 as it was not possible to contact their clients before this time. Valerie was very upset by the written directive and her first goal from the meeting was to get it withdrawn.
Rebecca’s response to this was there was no question about the quality of work Valerie was providing at this time. The issue was the amount of flexi time Valerie was accruing by starting at this time. Valerie likes to take 3 flexis a month as this is what the Agency Agreement says ATO employees are allowed to take. Valerie therefore likes to organise her worklife as 3 four day weeks at the start of the month and a full week in the last week. Valerie gets a lift to work in the morning with her husband, I think he is, who works at Centrelink, so she gets here quite early and has done so for years. Her second goal from the meeting was to continue to be able to work in the pattern she had established in the past.
Following discussion Rebecca indicated that she was unwilling to remove the written directive at that time and she would consider the proposals raised in the meeting over the weekend. These proposals included being able to start work at 7.30 if Rebecca was convinced of the value of the work and using methods such as hour lunches to control the accrual of flexi time as alternatives to taking full flexis. Rebecca’s concern was 3 flexis a month limited the time Valerie was available to her clients. Rebecca’s goal was to limit the flexi time and reduce the 3 flexis a month and induce a change in Valerie’s work pattern and behaviour which she believed would be to the benefit of the section and also Valerie’s clients. The propsal [sic] of a review date was raised and Rebecca agreed it was appropriate to have a review date but she would also further consider that over the weekend.
My recollection is the consequences of a written directive were not discussed at this meeting. Valerie informed me she had asked Jane Hamilton in HR about what the notice meant. [T4/37]
17. Mr Dawes' notes of the follow-up meeting on Monday 26 November read as follows:
Meeting 26/11/01
This later meeting continued the discussion initiated at the first meeting. A major point was that there was the possibility of starting work before 8 if Rebecca was convinced of the value to the organisation, possibly through a work diary.
It was at this meeting that I asked what the consequences of a written directive might be as I didn’t know. I was told by Rebecca and Valerie that there was a range of possible outcomes, ranging from reduction in pay, suspension from work, transfer to another section up to reduction in APS level and ultimately dismissal. Valerie raised the concern that she would be “out the door” as a result of the written directive as she had observed this during her time in the ATO. Rebecca stated clearly that it was certainly not her aim or intention to remove Valerie from her position or reduce her APS level, she would be looking at a change in behaviour and if breached would be seeking to place Valerie on standard hours. There seemed to be an agreement that a transfer out of the section would also be a viable solution if that is what Valerie wanted.
Rebecca restated her position that she was unwilling to remove the written directive at this time, but she agreed to a review date later in December. During this review period Valerie was not to start work before 8. She could be in the office, working at her desk, but she was not to enter into her flex sheet a start time before 8. If she did this the consequences of disregarding a written directive would have to take place. Valerie agreed to this and was relieved that being “shown the door” was not being contemplated as a concequence [sic] of the written directive.” [T4/37-38]
18. Ms Murdoch said in evidence that at this meeting she informed the applicant that she was looking for a change in behaviour, she envisaged that the formal direction would be lifted on 17 December 2001.
19. The applicant gave evidence that when she received the written direction, she thought that she was facing instant dismissal. At the meeting on 23 November 2001, she wanted the direction removed, because she was complying now with Ms Murdoch's direction, in that on 22 November 2001 and 23 November 2001 her attendance record shows that she commenced work at 8.00am, even though she had forwarded an e-mail to Ms Murdoch before 8.00am on 22 November 2001. The applicant said in evidence that having the threat of instant dismissal hanging over her head, and that Ms Murdoch did not trust her when she said that she was complying with the direction, caused her distress. In her view, a written direction was not necessary or appropriate.
20. The applicant said in evidence that Ms Murdoch had told her at the meeting on 26 November 2001, in Mr Dawes' presence, that dismissal or reduction in classification was not contemplated. The applicant said in evidence that she had nothing in writing, and did not believe Ms Murdoch. She said that she was so upset that on the morning of 28 November 2001 she knew that she was not capable of working on that day, she was a "mess". Her husband rang the ATO and left a message that the applicant was not well and would not be at work that day.
21. The applicant gave evidence that her friend, Ms Janet Hughes, visited her during the morning, and drove her to Hahndorf, as Ms Hughes was to meet friends. The applicant and Ms Hughes went into the Hillstowe Winery, which is in the main street, to go to the toilet. They saw 3 of the applicant's colleagues from the ATO, including Ms Glover, who were in the wine tasting area prior to having lunch.
22. On the following morning, Ms Murdoch had a conversation with Ms Glover, in the course of which she mentioned seeing the applicant at the winery. In the afternoon Ms Murdoch had a meeting with the applicant, which Ms Murdoch recorded in the following terms:
“29 November 2001
During a conversation with Sue Glover manager of the Tax Practitioner Group in Waymouth at approximately 9.05am I asked her how she enjoyed her flex day on 28 Nov 2001. Sue went on to describe her day including bumping into Ms Carmen Carmen [sic] at the Hillstowe Winery in Hahndorf at approximately 1 – 1.30pm. Sue stated that herself, Anne Heath, Manager of Client Contact Unit in Waymouth and another CECU staff member, Nina Campbell who were both on rec leave saw Ms Carmen inside Hillstowe Winery gathered at the restaurant food ordering counter chatting and perusing the menu board with a group of people. Sue stated that she said Ms Carmen’s name loudly at which point Ms Carmen turned around to face all three staff members. On recognising the staff members Ms Carmen said hello in a very stressed manner and proceeded to leave the premises very quickly. The other people also left cementing the strong impression that Ms Carmen was out with the group of people they had seen her interacting with at the counter.
Sue stated that they probably wouldn’t have given Ms Carmen’s presence at the winery on a work day a second thought except for her behaviour and disappearing immediately upon seeing them.
I spoke to Jane Hamilton A/g Manager of HR services in Waymouth for advice on how to respond appropriately. Jane advised in writing that Ms Carmen could be considered to be on unauthorised leave. Contents of email in Attachment 1.
Formal Counselling Session – 2pm 29 November 2001
I decided to wait for Ms Carmen to come to me with an explanation for her activities whilst on sick leave. I continued to interact with Ms Carmen during the day, including checking some minutes she had written and praising her for the comprehensive manner in which she had recorded the meeting. Ms Carmen was very pleased about this and appeared to be in a very happy, relaxed mood.
I waited until 2pm at which point I asked to speak to Ms Carmen in the context of a formal counselling session. This was held in the privacy of one of the meeting rooms. The contents of the discussion is described as follows:
I asked Ms Carmen to explain her whereabouts yesterday 28 November 2001. Ms Carmen replied that she was on sick leave.
I advised Ms Carmen that she had been seen in a social situation with other people whilst on sick leave.
Ms Carmen confirmed that she had seen Sue, Anne and Nina in the street on [sic] Hahndorf and for all they knew she could have been on her way to see her doctors and that she would like the opportunity to give her side of the story.
I told Ms Carmen that I would appreciate that and had in fact been waiting most of the day for her to do so.
Ms Carmen stated that she had been so stressed with everything going on at work, including experiencing sleepless nights, crying continuously and not eating that she felt emotionally not well enough to cope with work yesterday. Ms Carmen continued to state that her best friend, who was already on a planned day off from work decided to visit her and take her out to lunch to make her feel better.
I advised Ms Carmen that she had not been observed on the street in Hahndorf but in a winery located in Hahndorf with a group of people.
Ms Carmen said that’s right she now recalled that it was in the winery not on the street but refuted the observation made by Sue and other staff that she was with a group of people. Ms Carmen stated that she was only with her friend and that she had only walked through Hillstowe Winery to use their toilet.
I advised Ms Carmen that this was not the observation made by the other staff.
I asked Ms Carmen why she hadn’t obtained a medical certificate given her claim that she was stressed.
Ms Carmen stated that she was allowed 5 days of sick leave without the medical certificate and would not spend the $30 each time she was sick to obtain one.
I advised Ms Carmen that given the circumstances and the fact that neither of us had medical qualifications that it was difficult to determine her as not being fit for work.
Ms Carmen stated that her friend Janet who took her out for the day was medically qualified to assess her mental health.
I asked Ms Carmen what her medical qualifications were and she advised that Janet was a First Aid Officer.
I stated that this did not qualify Janet to assess Ms Carmen’s psychological well being.
I asked Ms Carmen if she would give me more information about the stress she was feeling and what was contributing to this in the workplace.
Ms Carmen stated that it was my management style.
I advised Ms Carmen that besides her difficulty managing flex time and the struggle to get her to start at a time more reflective of work availability that I did not have any problems with her and that she was praised for good work and thanked for completing tasks on a regular basis.
Ms Carmen nodded to this indicating agreement.
I asked [sic] Ms Carmen without a medical certificate and the fact that she had been observed on a social situation whilst on sick leave that I would have to put her on unauthorised leave for the 28 November 2001.
Ms Carmen got very upset, and in an aggressive manner accused me of harassing her and believing the other staff members over her.
I reconfirmed with Ms Carmen that it was not a case of one person’s word against another that in fact she was observed in a social situation whilst on sick leave and did not have any medical evidence to prove that she was not fit for work that day – 28 Nov.
I asked Ms Carmen to give me some information about what her doctor had been advising her to do about the stress she stated she was feeling however she advised that she did not wish to discuss this with me.
Ms Carmen stated that I should just believe what she is saying and accept that she was too sick to come to work yesterday (28 Nov).
I reaffirmed that I could not do this and that I could not as her manager approve her leave for the day before.
Ms Carmen started crying, stating that this is one day she has off and she has over a years worth of sick leave owing. She also stated that it wasn’t fair because she knows lots of people who have sickies and get away with it. She asked me how much time I had owing to me in sick leave.
I advised Ms Carmen that regardless of which of my staff had been observed in this situation that [sic] would be facing the same outcome.
Ms Carmen claimed that she could not believe that I was doing this to her and that my actions would only make her situation worse.
I advised Ms Carmen that she needed to accept responsibility for her own actions, including openly socialising whilst on sick leave.
Ms Carmen stated that she was going to her doctor immediately to get medical evidence that she was not well.
Ms Carmen left the office at 3pm to seek medical advice.” [T4/ 29-31]
23. On the evening of 29 November 2001, the applicant attended her treating general practitioner, Dr M Cacas, whose notes of the consultation read in part:
“… sent here by work personnel as has been “harassed” at Tax Office Waymouth Street. May 01 new manager who “picked” on her. Other worker harassed left work (6/7/01) - extra hrs not paid for no days off in lieu either … Patient threatened with instant dismissal pay day, drop in classification, has appealed to a director …” [Exhibit R3]
24. The applicant did not return to work in the Unit, and on 5 December 2001 she completed a claim for compensation for stress, on the basis that she had been victimised and harassed by her supervisor for over 6 months, and the continuation of this at 2.30pm on 29 November 2001, was the last straw. Over the period between 29 November 2001 and her return to work on 26 February 2002, she attended various meetings, crisis counselling, a mediation session with a rehabilitation provider, Ms Boravos, a mediator, Ms Belperio, and Ms Murdoch. On Friday 22 February 2002, she was informed by a Mr Dixon that there was a possible position available. She was interviewed that same day, and commenced work on Tuesday 26 February 2002, in the Tax Tile Number Integrity and Improvement section. She said in evidence that in this position she was able to commence work at 7.30am and in her own words “I can do as I like”.
25. I have examined the whole of the evidence carefully and in detail, and taken into account the parties’ submissions. It is not possible in these Oral Reasons for Decision to outline each and every aspect of the evidence, nor every detail of the parties’ submissions, but I have taken them all into account in the course of my deliberations.
26. On the applicant's evidence it was not until 21 November 2001 that Ms Murdoch gave a formal advice, a direction regarding the applicant not coming to work before 8.00am. She says that until that date it was simply "comment" by Ms Murdoch. There was nothing formal; and as soon as the direction was given on 21 November 2001, she complied.
27. I do not accept the applicant's evidence. I prefer Ms Murdoch's evidence that she informed the applicant, and other staff, upon her arrival at the Unit on 14 May 2001, that the direction of February 2001 would be implemented strictly. The other staff complied, but the applicant did not. By 26 July 2001, Ms Murdoch had refused to allow the applicant to carry over more than 40 hours flexi time, and the applicant had applied for review of that decision.
28. I am satisfied on the evidence that the applicant knew of the direction and request, but that she steadfastly, and resolutely continued in her determination to pursue the lifestyle to which she had become accustomed. I accept Ms Murdoch's evidence that despite her repeated oral and written requests, the applicant did not comply, and eventually by 22 November 2001, Ms Murdoch sought advice from the Human Resources Manager, and as, in effect, a “last resort" issued the written direction on 23 November 2001. I consider that this was an appropriate management decision in all the circumstances, and could be regarded as "reasonable disciplinary action", in accordance with section 4 of the Act. I am satisfied on the evidence, and find as a fact, that the applicant's injury resulted from reasonable disciplinary action, and is not within the definition of injury, therefore, in section 4 of the Act.
29. I am satisfied on the evidence also, that the applicant failed to obtain a benefit, namely, unrestricted access to flexi leave. I am satisfied on the evidence, and find as a fact, that any injury the applicant suffered arising out of, or in the course of, her employment with the ATO, resulted from her failure to obtain a benefit in connection with her employment, and her injury does not satisfy section 4 of the Act. She is not entitled to payment of compensation in relation to the period 29 November 2001 to 26 February 2002.
30. For these reasons the Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDate/s of Hearing 25/26/28 March 2003
Date of Decision 28 March 2003
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Sparke Helmore
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