Cassandra Lee and Comcare
[2012] AATA 867
•10 December 2012
[2012] AATA 867
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3737
Re
Cassandra Lee
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 10 December 2012 Place Brisbane The decision under review is affirmed.
........................................................................
Deputy President P E Hack SC
CATCHWORDS
COMPENSATION – psychological injury – host employment placement – sudden termination – whether reasonable administrative action taken in a reasonable manner – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Re Webster and Comcare [2011] AATA 330
REASONS FOR DECISION
Deputy President P E Hack SC
10 December 2012
Introduction
By virtue of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee that results in death, incapacity for work or impairment. But the definition of “injury” in s 5A(1) of that Act excludes a condition that would otherwise satisfy the definition if the condition was a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. This case concerns that exclusion.
The applicant in these proceedings, Ms Cassandra Lee, was a long-term employee of the Department of Defence (Defence) but from late 2009 was seconded to work in the Australian Electoral Commission (AEC) office in Cairns. In May 2010, in circumstances described in greater detail below, that secondment came to an abrupt end. Thereafter Defence refused Ms Lee’s application that she be paid miscellaneous leave from 1 July 2010. The undisputed medical evidence is that in October 2010 these two actions caused the onset in Ms Lee of a condition described as chronic adjustment disorder with anxiety and depressed mood. It is common ground between the parties that those actions amount to administrative action taken in respect of Ms Lee’s employment,
Comcare accepts that the condition was contributed to, to a significant degree, by Ms Lee's employment by the Commonwealth, thus satisfying the statutory definition of “disease”. The contest in the present case is whether the two administrative actions that have been identified were “reasonable” and were “taken in a reasonable manner”.
Background
The relationship between Ms Lee and Defence has a long and unfortunate history, not all of which needs to be recited. That history, so far as it is relevant to these proceedings, is not in dispute. What follows is, by and large, taken from the contemporaneous documents. A convenient starting point to the history is the judgement of the Federal Magistrates’ Court of 6 July 2007[1] in proceedings brought by Ms Lee against the Commonwealth of Australia and other employees of the Commonwealth who had discriminated against her in the course of her employment. That conduct caused Ms Lee to suffer a psychiatric illness. One of the terms of the orders made was that,
…when [Ms Lee] initially returns to work she be employed by [the Commonwealth] in a department other than the Department of Defence.
[1] See Lee v Smith (No 2) [2007] FMCA 1092.
Following that judgement arrangements were made by Defence to assist in Ms Lee's rehabilitation back into the workforce. The details are not presently relevant however by February 2008 Ms Lee was regarded by Dr Paul Trott, her treating psychiatrist, as[2],
… medically fit to perform duties associated with APS Level 3 and 4…
Within the Australian Public Service clerical and administrative employment is classified according to an APS scale from Level 1 to Level 6. Dr Trott considered that she[3],
… should be able to return to work on a full-time basis of [sic] approaching 37.5 hours per week...
There was no medical evidence that Ms Lee was not fit to return to full-time work in September 2009 when the arrangements described below were being put in place.
[2] Exhibit 1, page 115.
[3] Exhibit 1, page 115.
During 2009 efforts were made by Defence to obtain employment for Ms Lee in other Commonwealth agencies, an arrangement described as a “host placement”. Those efforts came to fruition in September 2009 when the AEC agreed to Ms Lee being placed at its Cairns office for a period, initially, of seven months. Ms Lee agreed to that placement.
Mr Tony Anderson was the Divisional Returning Officer for the seat of Leichardt and thus the manager, in substance if not in name, of the Cairns office of the AEC. The arrangements between Defence and the AEC contemplated that Mr Anderson would be Ms Lee's supervisor although, given that Defence remained responsible for the payment of her salary, matters of leave, salary and other entitlements were required to be handled through Defence.
Ms Lee was provided with further details of the placement with the AEC by e-mails of 7 October 2009[4] and 13 October 2009[5] from Ms Lyn Ivers (Ms Lee's rehabilitation case manager) and Ms Sondra Carr (the senior case manager) respectively. The e-mail of 7 October 2009 informed Ms Lee that Ms Debra Kapelis, a psychologist and private rehabilitation consultant, had been engaged to provide return to work support during the course of the seven-month anticipated term of the engagement with the AEC. The latter e-mail noted that Ms Lee had been sent the duty statements for the APS2, APS3 and APS6 positions at the AEC to give her an idea “of the type of work AEC undertake.”
[4] Pages 17-18 of the annexures to exhibit 3.
[5] Page 21 of the annexures to exhibit 3.
Ms Lee met Mr Anderson on the morning of 20 October 2009 and an arrangement was made for her to start work the following day (Wednesday). To accommodate Ms Lee's need to establish suitable after school care arrangements, Mr Anderson agreed to allow her to work part-time – 9 am to 3 pm – for the first eight days (Wednesday to the following Friday) with Ms Lee commencing full-time duties on Monday 2 November 2009[6]. Knowledge of that agreement prompted Ms Carr to forward a “part-time work request form" to Ms Lee on 21 October 2009[7]. Ms Lee was seemingly offended by the suggestion that she should receive less than a full-time salary. Her e-mail of 23 October 2009 to Ms Carr read, in part[8],
I am not seeking part-time work so for that reason I will not be completing the application. I did request a graduated return to work in relation to my hours but that is different to requesting part-time work.
Her e-mail referred to the need to see Dr Trott so that he could be informed of the situation and could liaise with Ms Kapelis.
[6] Page 23 of the annexures to exhibit 3.
[7] Page 29 of the annexures to exhibit 3.
[8] Page 31 of the annexures to exhibit 3.
Ms Carr responded by e-mail of 23 October 2009[9] pointing out that, in the absence of medical evidence that Ms Lee was not fit to return to full-time work, there could not be a graduated return to work for medical reasons. The e-mail continued,
Working the part-time hours is a choice you made to suit your family situation and therefore you will only be paid for the hours that you actually work. Beth Keating as your supervisor has approved this arrangement and Defence is willing to support your choice to work school hours for this period of time only.
The other option, rather than to apply for part-time hours is to apply for annual leave for the hours you are not working during this period (i.e. work 9-3 with 1/2 break = 5 1/2 hrs and apply for two hrs annual leave). This way you will still receive a full-time salary.
I note that you are going to see Dr Trott. If Dr Trott advises us that there is a medical reason as to why you can not work full-time hours, similarly to above, you will be required to apply for personal leave for any absence from the workplace that reduces your hours from the standard full time weekly hours of 37.5.
[9] Pages 34-35 of the annexures to exhibit 3.
Ms Beth Keating, referred to in that e-mail, was the Manager of Personnel and Business Services in Defence and the supervisor of Ms Carr and Ms Ivers. She was Ms Lee’s administrative supervisor from May 2006 to August 2010 and had overall responsibility for the management of Ms Lee’s rehabilitation. On 29 October 2009 Ms Keating received from Ms Lee a medical certificate[10] from Dr Trott certifying that Ms Lee was suffering from “a medical disorder (Adjustment Disorder with mixed anxiety and depressed mood)” that rendered her unfit for work from 26 October 2009 to 30 October 2009. Subsequently, further certificates in similar terms were received from Dr Trott in relation to the period from 2 November 2009 to 6 November 2009 and the period from 10 November 2009 to 12 November 2009.
[10] Page 46 of the annexures to exhibit 3.
Ms Lee eventually commenced full-time work at the AEC on 16 November 2009.
Later that month Ms Ivers decided to seek an opinion from an independent psychiatrist, Professor Philip Morris, regarding Ms Lee's fitness for duty. That decision was prompted, according to Ms Keating, by the receipt of the medical certificates of late October 2009 and early November 2009 and the desire to ensure that Ms Lee had a safe and sustainable return to work. The letter of instruction to Professor Morris referred to the fact of Ms Lee having commenced working full time with the AEC on 16 November 2009 and the information available to Ms Ivers that the placement was “progressing well”. The terms of the request to Professor Morris are in issue and are discussed below; it will suffice for present purposes to note that copies of the letter of instruction to Professor Morris were sent to both Ms Lee and to Dr Trott. Ms Lee was seen by Professor Morris on 14 December 2009. He provided a report dated 19 January 2010.
Professor Morris’ report[11] was received by Defence on 11 February 2010. Under the heading “Work Capacity” Professor Morris wrote:
[11] Page 20 of exhibit 1
[Ms Lee] is capable of a return to work in suitable positions in a full-time capacity. Suitable positions would be ones where she would not be placed in situations where she would have to deal with the general public or placed in situations where she is likely to be threatened or would have to deal with conflict. Positions that require high emotional and cognitive demands would not be appropriate for her. She should not be placed in a position of responsibility for other staff.
I think a return to work in Centrelink, or Child Support Agency or situations where she would be dealing with disgruntled clients would not be in her best interests. These situations could cause a relapse of her condition.
Because Ms Ivers was interested in knowing Ms Lee's capacity to undertake work at the APS 4 level she had posed a particular question to Professor Morris in these terms:
Is there any medical condition that would prevent Ms Lee from continuing to work in a full-time 37.5 hour a week capacity?
(a) If no, please provide a brief summary of the reasons for this response.
(b)If yes, is her capacity suited to APS Level 4 duties (Ms Lee’s substantive APS Level)? (Refer to attached APS 4 Work Level Standards).
Professor Morris’ response to that question was as follows:
Ms Lee is capable of returning to work in a full-time capacity but only in selected or suitable positions. Please see the report. The limitation of her work to suitable positions and to work that does not require her to supervise other members of staff suggests that her work capacity may or may not be at the APS 4 level. Please see the Work Capacity section of the report.
Ms Keating was, as she put it, “surprised” by Professor Morris’ opinion however she regarded it as incomplete and equivocal. It was certainly equivocal in relation to Ms Lee's capacity to undertake work at the APS 4 level. The result was that the report of 19 January 2010 was not provided to Ms Lee or Dr Trott at that point, as it might otherwise have been, instead, a decision was taken to seek a further report from Professor Morris. That request for a further report was made by letter of 24 February 2010.
Before dealing with the terms of the request of 24 February 2010 it is necessary to note that on 3 February 2010 Ms Ivers had had a lengthy conversation with Mr Anderson about Ms Lee's progress at the AEC. By that stage Ms Lee had been working full-time for a little over two months. Ms Ivers’ note of that conversation[12] records that Mr Anderson advised that Ms Lee,
[12] Exhibit 7.
1.has demonstrated the capability at the APS4 level and this is measured against AEC capabilities model.
2.is responsive to all work given to her.
3.has good judgement when making decisions.
4.is ticking all the boxes against work level standards
5.is diligent
6.communicates well
7.achieves results – more in line with process based work as she has not had the opportunity to do any project work at this stage
8.is working with the rest of the team using a new program and data base to record enrolments – has a high output
The note otherwise records Mr Anderson’s favourable views about Ms Lee's work performance.
The 24 February 2010 request to Professor Morris for further information was quite lengthy. A considerable history, in excess of eight pages, was provided of Ms Lee's interactions with Defence in connection with her return to work. Much of the information provided was quite neutral but some of the comments were undoubtedly adverse to Ms Lee including one comment where it was observed that a particular decision had not been “accepted by Ms Lee in good grace”. The letter posed eight questions for Professor Morris regarding Ms Lee's capacity for work. It is important, in light of the argument presented by Ms Lee, to note that no information regarding her progress at the AEC was provided. In particular, no reference was made to the quite glowing report from Mr Anderson of that progress.
By mid-April 2010, and shortly prior to the expected end of the original placement, Ms Lee’s performance at the AEC was such that the Commission was requesting that the term of the engagement be extended until, it was envisaged, December 2010[13]. But the situation changed on 22 April 2010 when Defence received Professor Morris’ supplementary report of 10 April 2010[14]. Despite the volume of material provided and the particular questions raised, the report was quite brief. Aside from matters of formality, it read:
Given her ongoing condition of Anxiety Disorder NOS [not otherwise specified] with associated anxiety, sensitivity to threat and conflict, and social avoidance and sensitivity leading to her being anxious, irritable and angry when dealing with staff in conflict situations, I do not feel that she could work at the level of APS Level 4. Work at an APS Level 2 would be in a more appropriate position for her when considering her ongoing psychiatric symptoms.
She should not work in Centrelink or similar departments where she has to deal with the public or customers who are likely to be threatening, abusive or create conflict. This would cause a relapse of her condition. The reason for her not working in Centrelink would be on the basis of her medical condition, not personal preference.
Her ongoing symptoms resulting from her Anxiety Disorder NOS are likely to be permanent. Therefore, the permanent incapacity provisions might be considered for this patient.
[13] Page 88 of the annexures to exhibit 3.
[14] Page 42 of exhibit 1
On 22 April 2010 Ms Keating sent an e-mail to Ms Annette Thomas[15], a rehabilitation case manager at the AEC informing her that,
…Ms Lee cannot work safely at the APS4 level and is better suited to duties at the APS2 level.
Ms Lee was not initially sent copies of the reports of Professor Morris. Ms Keating sought to telephone her but her calls were not returned. The reports were eventually forwarded to her under cover of a letter dated 28 April 2010. It was intended by Defence that copies also be forwarded to Dr Trott however there is controversy as to whether they were received by him. I think, in the result, that it does not matter whether they were received by Dr Trott or not. Ms Lee apparently received the reports on 7 May 2010. On that same day she communicated with Ms Ivers and Ms Keating by e-mail about leave entitlements[16]. Ms Keating responded the same day[17]. Her e-mail read, in part, as follows:
I would like to come up and discuss the new medical report with you Deb Kapelis and Dr Trott. I have asked Lyn [Ivers] to arrange a meeting so that we can talk it through. I will also speak to the Rehab Coordinator at AEC to ensure that they comply with the recommendations of the report as well. I will keep you posted on the meeting but I was thinking at the end of next week…
[15] Page 94 of the annexures to exhibit 3.
[16] Page 99 of the annexures to exhibit 3.
[17] Page 101 of the annexures to exhibit 3.
On 11 May 2010 there were some discussions between Ms Keating and Ms Thomas from the AEC. Following those discussions Ms Keating sent a letter[18] to Ms Thomas describing the conclusions of Professor Morris in these terms:
The health assessment from Professor Morris indicates the following restrictions:
1.Ms Lee cannot work at the APS4 level and is more suited to work at the APS2 level
2.Ms Lee cannot work in any situation where she may be subject to abusive or disgruntled clients or in a situation of conflict
3.She cannot undertake supervisory duties
One of the criticisms of Mr Black, counsel for Ms Lee, is that that is not an accurate paraphrase of the conclusions reached by Professor Morris. Those matters aside, Ms Keating's letter sought a long-term position for Ms Lee with the AEC.
[18] Pages 29-30 of the annexures to exhibit 8.
Ms Kathleen Carnell was, at the relevant time, the Health, Safety and Wellbeing Manager of the AEC. She gave evidence of the response of the AEC to the letter of 11 May 2010. The letter was referred to Ms Anne Bright, the State Manager of the AEC, who decided that the AEC did not have an ongoing position for Ms Lee at the AEC Cairns office[19]. Ms Carnell's view was that the AEC could not provide suitable duties to Ms Lee that complied with the restrictions imposed by Professor Morris. There was no evidence from Ms Bright but I infer that she was of the same view. On 13 May 2010 Ms Thomas sent Ms Keating an e-mail in the following terms[20]:
The State manager has advised that the AEC does not have an ongoing position for [Ms Lee] and that we cannot accommodate the restrictions you indicated in your letter of 11 May 2010.
[19] Page 34 of the annexures to exhibit 8.
[20] Page 122 of the annexures to exhibit 3.
By 18 May 2010 Ms Lee had obtained Dr Trott’s views about the conclusions of Professor Morris and Ms Lee's capacity for full-time work. In a report dated 13 May 2010[21], addressed to Ms Lee, and forwarded to Ms Keating on 18 May 2010 he said, in part,
It is my clinical opinion that you, Ms Lee have demonstrated capability over the past six months in your present designated position with the Australian Electoral Office including complying with various job requirements, and have not manifested any disturbance or deterioration of mental health. Additionally, there have been no incidents, reports or complaints concerning problems regarding workplace relationships (with staff and clients).
As such, it would seem that you, Ms Lee are currently suited to this position. It is also important for your continuing mental health that you maintain this current role and any diminishment of expected duties would act as a serious setback and impediment to your realisation of full-time employment to the level of your pre-injury capacity.
[21] Exhibit 1, page 122.
Following receipt of the AEC e-mail of 13 May 2010 Ms Keating continued in her attempts to arrange a meeting between Ms Lee, Dr Trott and Ms Kapelis however she had difficulty in finding time in Ms Kapelis’ schedule. On 19 May 2010, having received Dr Trott’s report of 13 May 2010 she sent an e-mail to Ms Lee advising of the position in the following terms[22]:
I have received the letter from Dr Trott. I appreciate your need to see me in the presence of Dr Trott and perhaps we can do that next week or at a suitable time but there is an urgent matter I need to let you know about.
I had hoped to do this face to face but I have not been able to get your agreement to meet or to ring me and I'm afraid it can't wait. AEC has informed me that they wish to conclude the placement as they can no longer provide suitable duties which conform to the terms of Professor Morris' report. Their State manager Anne Bright informed Annette Thomas on Monday that she does not have an ongoing position in AEC and that they can't host the placement any longer. She said that this should not be prolonged after the end of this week.
…
I phoned AEC this morning and their view is not altered by Dr Trott's letter as their decision is about the ongoing availability of suitable duties. I’m sorry this has to conclude so abruptly but I was hoping to see you in person to do this.
[22] Page 131 of the annexures to exhibit 3.
Ms Lee left the AEC in the afternoon of 19 May 2010. Defence continued to pay the salary up to and including 24 June 2010.
Dr Trott forwarded a more fulsome report of 21 May 2010[23] to Ms Keating. Given the difference of opinion between Dr Trott and Professor Morris, Defence made the decision to seek a further report, this time from Dr Nicholas Jetnikoff, however Ms Lee's trade union took issue at some of the material that had been forwarded to that doctor. Ultimately a further report was sought from Dr Curtis Gray, consultant psychiatrist, by letter of request dated 12 July 2010[24]. Copies of the reports of Professor Morris and Dr Trott were provided to Dr Gray.
[23] Pages 137-138 of the annexures to exhibit 3.
[24] Page 140-142 of the annexures to exhibit 3.
In the meantime discussion and correspondence continued between Ms Lee and Ms Keating. By letter of 15 June 2010[25] Ms Keating informed Ms Lee that Defence would not approve further periods of miscellaneous leave. In an e-mail of 24 June 2010[26] Ms Keating advised Ms Lee that she would need to submit a leave application for the period after 1 July 2010 “as you will no longer be covered by salary or able to access miscellaneous leave”. On 23 July 2010 Ms Lee lodged a written application[27] for paid miscellaneous leave expressed to be from 1 July 2010 “ongoing”. Ms Keating prepared a report[28] regarding that application for the authorised delegate to approve such leave and recommended, for the reasons set out in her report, that it not be approved or that another more reasonable period be determined by the delegate. At that time Ms Lee had accrued just under 12 months of long service leave, annual leave and personal leave which was available for her to take if she so chose. Mention was made in the report of the fact that Ms Lee was to be seen by another psychiatrist for assessment on 28 July 2010.
[25] Pages 178 – 179 of the annexures to exhibit 3.
[26] Page 181 of the annexures to exhibit 3.
[27] Page 241 of the annexures to exhibit 3.
[28] Pages 245-247 of the annexures to exhibit 3. The pages have been reproduced in reverse order.
Dr Gray's report of 12 August 2010[29] was received by Defence on that date and by Ms Keating the following day. Dr Gray's opinion differed significantly from that of Professor Morris. In particular, he said,
Whilst I would consider that Prof Morris' recommendations about Ms Lee not working with the Department of Defence, with Centrelink or Child Support, or being placed in a position where she is likely to be threatened or would have to deal with conflict, are entirely reasonable, I would not support the recommendation that she should not have any staff supervisory duties, deal with the general public, or be placed in a position that requires high emotional or cognitive demand. The recommendation that she should not deal with disgruntled staff is, in my opinion, far too non-specific to be practical and should be disregarded.
Overall, I would support Ms Lee being given the opportunity to return to work as an APS4 level, but support the recommendations 3, 6, and 7, as noted on the first page of your commissioning letter.
Recommendation 3 in that commissioning letter was that Ms Lee should not be placed in a position where she would be likely to be threatened or would have to deal with conflict; recommendation 6 was that she not work in a position at either Centrelink or Child Support and recommendation 7 was that she should not work for Defence.
[29] Pages 153-161 of the annexures to exhibit 3.
Dr Gray’s report was not provided to the delegate who was considering Ms Lee's request for miscellaneous leave and Ms Keating's report on that request. That delegate was Major-General Elisabeth Cosson. On 17 August 2010 MAJGEN Cosson refused the application for miscellaneous leave and advised that Ms Lee should access her recreation leave.
After the termination of Ms Lee's placement with the AEC Defence made continuing efforts to obtain a further placement for her with the AEC. At least by 21 September 2010 the AEC was of the view,
… that there would be no medical restrictions to [Ms Lee] being placed into a position in the AEC based on the information provided in the medical report.[30]
In the result, by e-mail of 2 November 2010[31], Defence advised Ms Lee of the possibility of employment with the AEC as follows,
Dr Trott has ok’d me contacting you directly regarding the possibility of an AEC offer of employment for you.
I’m sure you will have a lot of questions so thought if I give you an outline of the possibility you can then come back to me with any questions. I hope this is ok with you.
We approached AEC following the receipt of the most recent medical from [Dr Gray]. As this medical mentioned that AEC had provided you with a positive work report following your host placement there we thought it may be possible to negotiate a permanent placement with AEC for you. This request was sent firstly to the Qld State Manager for AEC then to the National Manager. It was agreed that AEC would be interested in discussing a possible position with you.
AEC are aware that there is a medically supported reason that you are unable to return to work in Defence but have no details as this is medical in confidence information.
Currently, AEC would be interested in meeting with you in their Brisbane office to discuss a possible role. Defence have offered a transfer of salary dollars to AEC to facilitate your permanent transfer; this would then remove any further requirement for you to have contact with Defence. Dr Trott has advised me he is of the opinion that this would be advantageous to you.
If you are interested in this [sic] pursuing this offer, the meeting can be any day you choose except a Thursday as the National Manager cannot be available to travel to Brisbane on a Thursday. I will book your airfares and have cab charge vouchers sent to you. AEC are keen for the meeting to proceed as soon as possible for you.
Ms Lee was invited to telephone or e-mail the author, Ms Anne Morris an Assistant Director in the Defence Support Group, if she had any questions.
[30] Pages 168-169 of the annexures to exhibit 3, an e-mail from Ms Carnell to Ms Keating.
[31] Page 173 of the annexures to exhibit 3.
There was no response by Ms Lee to this e-mail; on 24 November 2010 Defence received a direction from Ms Lee that any contact or correspondence from it to her be sent through her trade union.
Ms Lee’s health began to decline around October 2010.
Ms Lee lodged a claim for compensation on 31 January 2011. The claim gave 7 October 2010 as the date of onset of conditions described as “mixed anxiety and depressed mood” and “adjustment disorder with mixed anxiety and depressed mood”. On 3 May 2011, Comcare determined that it was not liable to pay compensation to Ms Lee. Comcare was satisfied that Ms Lee suffered from a psychological injury, adjustment disorder with mixed anxiety and depressed mood, and that that injury had been significantly contributed to by her employment, but concluded that the actions of Defence and the AEC amounted to reasonable administrative action undertaken in a reasonable manner.
That decision was affirmed on reconsideration on 7 July 2011. These proceedings were commenced on 5 September 2011.
The medical evidence
There is agreement between the psychiatrists, Dr Trott and Dr Jetnikoff, that Ms Lee suffered from chronic adjustment disorder with anxiety and depressed mood, that that condition arose in October 2010 and that it was contributed to, to a significant degree, by Ms Lee's employment by the Commonwealth. They also agree[32] that the adjustment disorder arose as a result of the cessation of Ms Lee's employment with the AEC and the refusal of miscellaneous leave with pay.
[32] As do the parties: see exhibit 14, paragraph 4 and exhibit 13, paragraph 8.
Dr Trott, in his report of 2 June 2011[33], says:
However, with the unfortunate sudden termination of her employment with the Australian Electoral Office, as well as ongoing tensions with the Department of Defence (Townsville Office), and with the withholding of her pay that has placed Ms Lee under financial hardship; Ms Lee has since suffered an illness relapse. That is, there has been a separate culmination of stressors that has exacerbated the former complex conflict relating to the original work injury; whereby she had been the unfortunate victim of sexual assault, as well as sexual harassment and bullying in the workplace; and that she had felt unsupported by her employer. Ms Lee has developed a second Adjustment Disorder with Mixed Anxiety and Depressed Mood as defined in the DSM IV, which is still connected to the original workplace injuries given the complexity of the conflict with the Department of Defence (and especially the Townsville Office); whereby there has been a sensitisation, if not a re-traumatisation.
Dr Jetnikoff's evidence is to similar effect. He says[34],
Ms Lee developed the condition out of a psychologically reasonable functioning state when working at the AEC after a five month period of trying to negotiate a suitable employment alternative and having financial hardship. It was after being removed from the AEC host placement and suffering from financial hardship with the subsequent negotiations regarding alternative employment and accessing leave to her satisfaction that she developed increased frustration and ultimately the Adjustment Disorder that she is now suffering.
…
The significant contributing factors were the sudden, abrupt removal from host employment based on the medical opinion of Professor Morris as communicated through the Department of Defence with the host employer, the subsequent financial hardship and the inability to negotiate a successful alternative employment placement, although I note an employment option was provided by November 2011 after she had become unwell.
[33] Exhibit 6 at page 6.
[34] Exhibit 11 at pages 9 – 10.
The legislation
Brief reference only is needed to the legislation. As has already been noted, Comcare is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act in respect of an injury suffered by an employee. The term “injury” is defined in s 5A(1) of that Act to mean:
(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.
And “disease” was defined by s 5B(1) as,
(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.
Here, the contribution, to a significant degree, is conceded.
Consideration
Ms Lee conceded that the two actions – the termination of the AEC placement and the refusal of miscellaneous leave – amount to administrative action taken in respect of her employment. Having regard to the conclusions of the Full Federal Court in Commonwealth Bank of Australia v Reeve[35] I do not doubt that the concession was rightly made. The issue is whether the actions identified were reasonable and were undertaken in a reasonable manner.
[35] [2012] FCAFC 21; (2012) 199 FCR 463.
Ms Lee’s case was that the cessation of her host placement with the AEC and the decision to decline her application for miscellaneous leave with pay were neither reasonable, nor taken in a reasonable manner because various steps, identified in particulars provided by her[36], leading up to, or forming part of those actions were unreasonable. Those particulars provide a convenient means of dealing with the arguments presented. Before doing so I should deal with some preliminary matters.
[36] Exhibit 10.
There was some discussion during the course of submissions about the identity of the employer: was it Defence or the AEC or both. On reflection, the answer is that it is Ms Lee's employment by the Commonwealth that must be examined; the ailment was contributed to, to a significant degree, by that employment. Thus it matters not which emanation of the Commonwealth was paying Ms Lee's salary nor which emanation was responsible for the various acts or omissions put in issue in the proceedings. Whichever emanation was directly responsible, ultimately the Commonwealth was her employer.
Next, I note that I do not consider the expressions “reasonable administrative action” and “taken in a reasonable manner” to be susceptible of any detailed analysis. I agree, with respect, with the following observations of Senior Member McCabe and Brigadier Maynard, Member, in Re Webster and Comcare[37],
A good deal has already been written about the meaning of the expression "reasonable administrative action taken in a reasonable manner". For our part, we doubt it is helpful to paraphrase or illustrate the words of the statute. We would rather just apply the plain words to the facts we have identified.
[37] [2011] AATA 330 at [17].
The applicant's particulars identified distinct steps leading up to, or forming part of, the two identified administrative actions. The combination of these acts or omissions, it was contended, meant that the actions were neither reasonable nor taken in a reasonable manner[38]. The steps were grouped under seven headings which I will adopt for the purposes of considering the arguments of the parties.
[38] Exhibit 10 at [3].
Obtaining Professor Morris’ first report
Three errors of omission are identified under this heading,
(a)the failure to provide Professor Morris with copies of medical reports earlier obtained from Dr Trott;
(b)the failure to provide Professor Morris with a specific statement or description of the duties that Ms Lee was or would be undertaking at the AEC;
(c)the failure to provide Professor Morris with relevant information about Ms Lee's work history.
I do not consider that there is substance in any of these criticisms. Professor Morris was informed that Ms Lee had a long-term psychological disorder, and that her treating psychiatrist was Dr Trott. He was informed of the, then, recent medical certificates that Dr Trott had issued. He was expressly requested to make contact with Dr Trott “to qualify the medical history provided by Ms Lee during the assessment process”. At that time, the most recent reports from Dr Trott, those of February 2008 and April 2008, were considerably dated, all the more so having regard to the inconsistency between the opinions expressed in them about Ms Lee's capacity for employment and the more recent medical certificates. There was no need to provide him with the dated reports from Dr Trott and I do not consider it open to Ms Lee to criticize Defence for not doing so.
At the time of engagement of Professor Morris neither Defence nor the AEC had any clear understanding of the work that Ms Lee would be undertaking at the AEC. She had been provided with position description statements at three levels but, as the letter of request makes plain, the particular enquiry was to ascertain Ms Lee's capacity to undertake work at her substantive position level. It is said that the failure to provide the position description was contrary to the written policy of Defence. So much may be accepted. The policy[39] document, under the heading “Information to the medical practitioner”, obliged the case manager to provide the medical practitioner “with any information relevant to the case”. One of the items of information thereafter listed is described as,
details of the employee's duties (including an up to date statement and job description) and factors associated with the duties or physical working environment which are considered relevant
But policy must yield to the particular circumstances of the case. Here it was simply not known what Ms Lee would be doing; the tasks she was expected to perform at the AEC were a matter of discussion between her and Mr Anderson. There were no details of her duties known or able to be provided. Necessarily, it was not wrong for Defence to not provide the type of details contemplated by the policy and to provide instead the generic APS 4 Work Level Standards.
[39] Exhibit 1 at page 217.
The final complaint, the failure to provide relevant information about Ms Lee's work history, was not pressed in oral argument. No matters were identified which ought to have been, but were not, conveyed to Professor Morris nor is there any matter that I regard as being relevant which ought to have been conveyed but which was not.
There was then nothing unreasonable about the information provided to Professor Morris. It was reasonable to inform him of the matters set out in the letter of 30 November 2009.
The decision to obtain the second report
The first matter raised by Ms Lee is that Defence concluded that a further report was required “for reasons including that the Applicant was a possible candidate for invalidity.” It is said that there is nothing in the report of 19 January 2010 to suggest that that was the case and thus it was unreasonable for Defence to infer this from that report. Ms Keating's oral evidence in the course of the hearing was that Professor Morris' first report raised “the prospect of invalidity”. She was, in my view, mistaken in thinking that. I suspect that she has elided the two reports in her mind. But even if it be the case that Defence wrongly inferred that Professor Morris' first report raised the prospect of invalidity I find it impossible to see how that could be of any consequence.
Each of the three remaining complaints under this head refers to an alleged failure to comply with the written policy of Defence in dealing with health assessment reports. It is said that Defence ought to have provided, but did not provide, a copy of the report to Ms Lee and to Dr Trott, that it failed to inform Ms Lee that it was proposing to obtain a second report and that it failed to ensure that Professor Morris was provided with any supporting material which Ms Lee wished to be provided. Again, in my view, there is no substance in these assertions.
When Professor Morris' first report was received the view was taken that it was incomplete and equivocal. It was perfectly reasonable, notwithstanding departmental policy, not to provide such a report to the subject of the report or to the subject’s treating doctor, given that it was regarded as incomplete and that a further, hopefully more complete, report was being obtained. The departmental policy did not require the provision to the applicant of a report in such circumstances.
The written policy required that “[a]n employee will be informed in writing of … any action Defence proposes to take arising from the report including, if appropriate, a direction to return to work”. In its context, the “action” spoken of cannot be regarded as the action of seeking a supplementary or clarifying report. The action spoken of in the policy must necessarily be action concerning the employee's employment. It was unnecessary for Defence to inform Ms Lee of the intention to seek a supplementary report.
The written policy required the case manager to include in the letter of request “any supporting material which the employee wishes to be provided” to the reporting medical practitioner. Ms Lee (and Dr Trott) was provided with the original letter of request. She did not seek to provide any further information to Professor Morris. There was no suggestion by Ms Lee that she wished to provide information to Professor Morris and thus there was no supporting material that Defence failed to provide to Professor Morris. It may well be the case that Ms Lee, having now seen some of the information provided to Professor Morris, might wish to comment upon the accuracy of that information. But that misses the point. Professor Morris was not being informed of those matters for the purposes of him making a judgement about Ms Lee's qualities as an employee, he was being asked to consider her capacity. I accept, as Ms Keating said, that the purpose of that somewhat detailed history was to inform Professor Morris of other rehabilitation opportunities that had been used with Ms Lee. As it seems to me, such comments as might be thought to be adverse to Ms Lee were not to the point of the report requested. They were of no moment and no consequence. That view is confirmed by the absence from Professor Morris' report of any reference to those matters.
The second letter of instruction
Ms Lee has, in essence, three complaints about the second letter of instruction to Professor Morris. The first is that Defence did not provide Professor Morris with details of her performance at the AEC to that point. The second is that it denied her the opportunity to review the briefing letter and thus failed to provide an opportunity to review or comment on the factual assertions in that letter. The third is that it failed to request Professor Morris to consult with Dr Trott in the preparation of his second report. I will deal with those in reverse order.
In my view it was unnecessary for Defence to again request that Professor Morris consult with Dr Trott. He had been instructed, in the first letter of request, in these terms,
It is requested that contact is made with Ms Lee's treating practitioner, Dr Paul Trott, Consultant Psychiatrist, telephone…, to qualify the medical history provided by Ms Lee during the assessment process. Could you please confirm that you have contacted Dr Trott to corroborate details relating to Ms Lee's medical condition(s), treatment and/or discuss the findings of the assessment.
Professor Morris was an experienced consultant psychiatrist. No doubt, if he felt that there was a need to consult again with Dr Trott, he would have regarded himself at liberty to do so. There is nothing in this complaint.
For the reasons I have already discussed in paragraph 51 above there is nothing in Ms Lee's second complaint.
The failure on the part of Defence, and Ms Ivers in particular, to include with the request for a further report from Professor Morris, details of Ms Lee's favourable work performance at the AEC, is most troubling. The letter was sent on 24 February 2010. Only three weeks earlier Ms Ivers had been given a glowing report of Ms Lee's performance by Mr Anderson. If it was relevant to inform Professor Morris that Ms Lee had not accepted the decision about her leave entitlement “in good grace” why then was it not relevant to inform him of her good progress at the AEC. The answer, in my view, lies in a close examination of the letter of request.
The pages of detail about Ms Lee's rehabilitation, which included some comments adverse to her, were summarised in this way:
Ms Lee has been provided with intensive rehabilitation assistance and support during the past several years. In the main the communication has been one sided with Defence Managers and Case Managers remaining constant in their endeavours towards a successful return to work. During this time Ms Lee has shown little active participation in the return to work process by lack of mutual responsibility when looking and applying for suitable work opportunities. Ms Lee has remained adamant that it is entirely the responsibility of Defence to find and place her in a permanent position of work that she considers suitable, not her responsibility to apply for positions.
The letter then sought additional information about Ms Lee's capacity to undertake work of a particular type with particular characteristics. The letter was concerned with capacity, not performance. It was not concerned about Ms Lee's performance of the particular duties of a given task at the AEC; rather it was concerned to ascertain the precise nature of the restrictions that her condition imposed on her capacity to undertake work with particular characteristics.
Perhaps others may have included information about current work performance when making a request for the type of information being sought from Professor Morris; perhaps others might have provided less detail about the past history. Ideally, the information ought to have been provided. Defence can fairly be criticised for this omission although Professor Morris was certainly made aware of Ms Lee's placement at the AEC. It seems likely that he would have sought further information about the placement had he regarded it as germane to the subject matter of his report.
Decision about work restrictions
Once Ms Keating received Professor Morris' supplementary report she set out to summarise what she understood to be its import in her letter of 11 May 2010 to the AEC. Her letter spoke of “restrictions” that were said to be indicated by Professor Morris[40].
[40] See at paragraph [20] above.
Ms Lee says that the letter of 11 May 2010 was an inaccurate interpretation of Professor Morris' recommendations. Moreover, she says, she was not informed that Defence was proposing to apply the restrictions, that Defence failed to consult with either Professor Morris or Dr Trott about the restrictions and that Defence failed to notify her of her right to provide further medical evidence. Each of these latter matters were said to be contrary to the written policy of Defence in such circumstances.
A comparison of the report and the letter to the AEC makes good the contention that the latter was an inaccurate paraphrase of the former at least in one respect. The report suggested that Ms Lee should not work in situations where there were customers who were likely to be threatening, abusive or to create conflict. The letter reduced that to situations where Ms Lee might be subject to such clients. It was, to that extent, inaccurate however I do not accept that it was otherwise inaccurate. The letter was, in other respects, an accurate interpretation of the opinions expressed by Professor Morris in his two reports. The second report qualified some of the conclusions in the earlier one, it did not render them otiose.
It will aid understanding of the balance of Ms Lee's complaints if I set out in its entirety that part of the policy of Defence that is relied upon, clause 14.4.1.31[41]. It is in these terms,
[41] Exhibit 1, page 218.
When a Case Manager receives a health assessment report, they will provide a copy of the health assessment report to the employee unless the medical practitioner providing the report advises that the information should be withheld because it might be prejudicial to the employee's health or well-being. The information may be provided to the employee’s nominated medical practitioner. To gain access to all or part of this information the employee will need to contact their medical practitioner.
An employee will be informed in writing of:
- any action Defence proposes to take arising from the report including, if appropriate, a direction to return to work
- their right to discuss the report, and any proposed action with the Case Manager
- any decision to consult a Case Manager;
- their capacity to provide new or more detailed medical evidence if they dispute the decision about their fitness for duty
See: Section 5 – Disputed Medical Evidence
- their right to submit written comments of these matters within 14 days.
Note: the employee’s Group HR Director is the point of contact for any matters relating to conflicting or disputed medical evidence.
Where appropriate, the Case Manager will consult other relevant parties on the report and on the action the Department proposes to take. Interested parties may include:
- the employee's supervisor
- the employee’s Group HR Director
- the treating doctor
- the medical practitioner who undertook the health assessment
- Health Services Australia (HSA)
- the relevant superannuation board.
- …
It is to be borne in mind that a policy is not to be treated as if it had the force of legislation. A policy sets out procedures that will ordinarily be followed but it must yield to particular circumstances. Here, Defence had received a report from an independent psychiatrist. That psychiatrist had expressed the opinion that Ms Lee was not capable of working at the level, and with the responsibilities, that Defence had arranged for her. Whilst Ms Keating may have been surprised at that conclusion, and whilst subsequent opinions may cast doubt on the accuracy of it, Ms Keating was not at liberty to ignore it. I accept her evidence that, having received the second report of Professor Morris, she was motivated by a desire to ensure that Ms Lee was not kept in a workplace that might aggravate her condition. That being so, her decision to inform the AEC of what she regarded as being restrictions on Ms Lee's capacity rather than following slavishly the written policy of Defence is perfectly explicable. In the somewhat unusual circumstances that confronted Ms Keating it was entirely appropriate for her to inform the AEC at the earliest opportunity of the views of Professor Morris as conveyed in his reports and to attempt to meet with Ms Lee to discuss the contents of those reports in greater detail. That she was unsuccessful in arranging that meeting is not to the point.
In these circumstances I regard Ms Lee's criticism of Defence for not following its policy as being without substance.
Decision to cease work placement
By 14 May 2010 the AEC had determined that it wished to cease Ms Lee's host employment on the basis that it could not accommodate the medical recommendations imposed by Professor Morris and that it could not provide suitable duties for Ms Lee at the level of employment which he regarded her as capable of undertaking. Ms Lee is critical of that decision because, she submits, the restrictions in the letter from Defence to the AEC of 11 May 2010 could not be met where,
(a)the restrictions in the letter of 11 May 2010 were not an accurate reflection of the recommendations made by Professor Morris,
(b)the reports from Professor Morris were unreliable because they were prepared without all relevant information being provided to him, and
(c)by the time of the decisions the reports from Professor Morris were out of date because they expressly stated that they were based on an assessment date of 14 December 2009.
Additionally, Ms Lee criticises Defence for failing to act in accordance with its policy in this respect.
The issue of the currency of Professor Morris' assessment may be dealt with shortly. Professor Morris saw Ms Lee in December 2009 and expressed his opinions in reports dated 19 January 2010 and 10 April 2010. The provision of those reports carries with it the implication that the opinions expressed in them remained current; had Professor Morris been of the view that the period of time that had elapsed between the assessment and his reports was too great I would assume that he would have expressed that qualification within the body of the report or, at least, suggested that a further assessment was required.
In my view the balance of Ms Lee’s complaints about the decision to cease the AEC placement are best considered by reference to the consequence of the decision, that is, the communication of that decision to Ms Lee. It is that latter action which had the consequence so far as Ms Lee was concerned.
Notice to Ms Lee to cease the placement
The first of Ms Lee's many criticisms under this head is that Defence, despite promising to do so in e-mails of 10 and 11 May 2010, did not arrange the meeting with Ms Lee (including Dr Trott), nor had it, by 17 May 2010, arranged, or attempted to arrange, for the meeting to be scheduled. I do not accept that the criticism is valid. Ms Keating's e-mails and her evidence explain the difficulties that she experienced in seeking to set up the meeting. Ms Kapelis, the rehabilitation consultant, was then planning to travel overseas and securing her attendance presented particular difficulties for Ms Keating[42]. Ms Keating was based in Townsville, Ms Lee, Dr Trott and Ms Kapelis were all in Cairns. Ms Keating was required to travel by plane to attend a meeting in Cairns. Moreover, Ms Keating had experienced difficulty in contacting Ms Lee[43].
[42] See, for example, page 124 of the annexures to exhibit 3.
[43] See page 131 of the annexures to exhibit 3.
Next, Ms Lee criticises the e-mail of 17 May 2010 which proposed a meeting but which dealt with the possibility of Dr Trott not being able to attend in this way:
Hi Cassandra
Sorry it has taken time to sort this out. Deb has very limited availability over the next 10 days and I would like to suggest that we look at a meeting at her office next Thursday at 12 noon. Her office manager indicated that you were due to see her on Thursday afternoon anyway so it should be possible to have the meeting at 12 which is her first available time or if it doesn't suit to have the meeting at 245 as arranged.
If Dr Trott can't make this meeting then I can come back later but as he was consulted by Professor Morris in the preparation of the report I'm not so worried on that point. I am very keen to speak with both you and Deb as the repot [sic] has some implications return to work action. Can you please let me know which time suits you on Thursday?
Ms Lee's response to that communication appears to be an e-mail in the afternoon of 18 May 2010[44] which was in these terms,
With due respect, if I may, I would like to make reference to your e-mail of last Monday (10th May) morning in which you first notified of your intention to organise a meeting with all parties (including Dr Trott) involved in my Workplace Rehabilitation. As previously stated, I believe to propose such a meeting, as you have described in your previous e-mails without Dr Trott would be counterproductive and I have his agreement on this issue.
Up until yesterday afternoon (reference your e-mail below) I hadn't received any communication from you on the matter. I am confused, as the last communication I received from you, last Tuesday, stated that you would call all parties, including Dr Trott, to organise the meeting. However, to date, Dr Trott states that [neither] he nor his receptionist has heard from yourself or your office.
As a proactive participant in my Workplace Rehabilitation program I called and made this appointment (Thursday 20th) for Debra and I, as I wanted to discuss further some matters we had previously touched on. However, considering the increasing office workload here at AEC and Debra's busy schedule it would actually be more efficient if I sent her something in writing on the matter and she can reply in kind.
[44] See page 129 of the annexures to exhibit 3.
Ms Lee says, and it is undoubtedly correct, that Ms Keating's e-mail was sent, and the proposed meeting suggested, when Defence knew that Ms Lee had a preference for Dr Trott to be involved, knew that Dr Trott had a long history of involvement in Ms Lee's treatment and knew that Ms Lee had experienced difficulty in interacting with officers from Defence.
I do not regard Ms Lee's criticisms as being valid; they proceed on the footing that it is only the interests of Ms Lee which need to be considered, not the interest of anyone else, and because they are very much informed by hindsight. I am satisfied that Ms Keating was attempting to find an arrangement that was suitable to all and that had regard to the interests of all. In my view Ms Lee's demands of the time were unreasonable; she seemed to be of the view that Defence was required to meet all of her demands regardless of the needs or interests of others. The criticism does not take into account the other demands upon Ms Keating nor the particular need for Ms Kapelis to attend the meeting. Ms Keating had the view, not unreasonably, that Ms Kapelis, as the rehabilitation consultant, was vital to the meeting. Her efforts at this time were directed to ensuring that Ms Kapelis could attend.
Early on the afternoon of 18 May 2010, and presumably in response to Ms Lee's e-mail set out in paragraph 68 above, Ms Keating sent a further e-mail to Ms Lee in these terms,
Hello again Cassandra
I haven't forgotten the meeting with Dr Trott and will go ahead with it in due course.
I need to speak with you as soon as possible regarding your work placement. The report states certain work restrictions are to be adhered to so I have spoken with AEC about this. AEC must comply with our requirements to speak with you given reasonable notice and they have already been informed about this meeting and are in full agreement.
I would like to meet with you and Deb this Thursday at Deb's office at 12 o'clock. It is important that we discuss these work restrictions and the AEC reply regarding the restrictions. I can see yourself and Dr Trott to update him of our discussion next week but this is urgent and I have matters to discuss that can't wait that are administrative not medical in nature.
Please make yourself available for our meeting at 12 o'clock this Thursday as I am flying to Cairns to attend the meeting. I have let Deb know that this meeting must be a face to face and that an e-mail catch up is not suitable.
Ms Lee did not respond to this e-mail.
Ms Lee repeats the criticism of the 17 May 2010 e-mail in relation to this e-mail but adds that at the time of the e-mail Defence knew that the matters to be discussed were of a medical nature. Again, and for reasons similar to those I gave in relation to the 17 May 2010 e-mail, I reject the criticism. By this time Ms Keating was aware of the view of the AEC; its officers had made it abundantly clear to Ms Keating that there were no suitable duties available to Ms Lee that could accommodate the restrictions referred to by Professor Morris. Ms Keating had been unable to arrange an appointment with Ms Kapelis other than at the time she proposed. And what she wanted to discuss was not medical in nature, she wanted to discuss the imminent cessation of the AEC placement.
The next matter raised by Ms Lee is the receipt by Defence on 18 May 2010 of the opinion of Dr Trott that Ms Lee was “currently suited” to her position with the AEC and that “any diminishment of expected duties would act as a serious setback”. Having received that letter, Ms Lee says, Defence,
(a)failed to consult with Dr Trott about the matters raised in his letter,
(b)failed to consult Professor Morris about the matters raised by Dr Trott, and
(c)failed to refer the conflict in the disputed medical evidence to the Group HR Director, contrary to its own policy.
The last point takes an extract of the Defence policy out of its context. A note appended to clause 14.4.1.32, titled “Further health assessments”, reads as follows:
Note: In the circumstances where a medical certificate provided by an employee’s treating medical practitioner or specialist conflicts with that obtained from a Defence appointed medical practitioner, the latter will prevail. The Group HR Director is the point of contact for any matters relating to conflicting or disputed medical evidence.
That policy did not require Ms Keating to refer the dispute to anyone, rather, as Ms Keating said, it required her to prefer the opinion of Professor Morris over that of Dr Trott. There is no substance in this criticism.
And Ms Keating's reference to the policy provides at least a partial answer to the complaint that Professor Morris was not consulted about the matters raised by Dr Trott. It is only a partial answer because it would have been desirable for Professor Morris to have been asked to comment on the views that had been expressed by Dr Trott given the wide divergence in those views. I discuss that failing in greater detail below.
I do not consider Defence to have been at fault by not consulting with Dr Trott after receipt on 18 May 2010 of his report of 13 May 2010. There was nothing to be gained from any consultation with Dr Trott; he had made his views perfectly clear.
The final matter of complaint relates to the fact that Ms Lee was notified of the cessation of the AEC placement by e-mail at 10:30 on the morning of 19 May 2010 rather than by a face-to-face meeting as had been notified to her by the e-mail of the previous day. But that change was brought about, as the 19 May 2010 e-mail makes clear, because Ms Keating had been unable to obtain Ms Lee's agreement to participate in the meeting. In circumstances where attendance at the meeting would require Ms Keating to fly from Townsville to Cairns, Defence can hardly be criticised for her wanting an assurance from Ms Lee that she would attend the meeting.
Conclusion – cessation of the AEC placement
Despite the foregoing analysis of the events leading up to and forming part of the termination of Ms Lee's placement with the AEC it is that administrative action which must be considered – was it reasonable and was it taken in a reasonable manner? The analysis, informed by Ms Lee's helpful particulars, permits conclusions to be reached on those questions.
In the array of administrative actions some will be inherently unreasonable, others will be quite reasonable but not taken in a reasonable manner. There was, to my mind, nothing inherently unreasonable about the cessation of Ms Lee's placement. It had been made for a finite term and, as it happened, that term had expired. But, absent that, the mere cessation of a temporary placement was not, of itself, unreasonable.
Ms Lee's case falls to be considered by reference to the second question – was the cessation of the placement undertaken in a reasonable manner. Despite the criticisms that may fairly be made of the actions of Defence, and, to a lesser extent, the AEC, I am of the view that it was.
It is clear that the matter could have been handled differently and, probably, better. But the administrative actions must be undertaken in a reasonable manner, not in a perfect manner It would have been preferable to have provided Professor Morris with details of Ms Lee's performance to that time at the AEC. And Ms Keating seemed to accept, as I do, that the letter of 11 May 2010 was inaccurate in one respect. It would, as well, have been preferable had Professor Morris being given Dr Trott's report of 13 May 2010 before the decision to terminate the placement was conveyed to Ms Lee. But a conclusion that, objectively viewed, a matter might be undertaken in a better way does not necessarily lead to the conclusion that the way in which an action was undertaken was not reasonable. There will frequently be a range of ways in which administrative action might be taken reasonably as well as a range of ways that are unreasonable. Here, I consider, the action was taken in a reasonable manner even though, with the benefit of hindsight, it may now be said that the actions could have been done better.
There is no suggestion that the persons in Defence who took these actions did so in bad faith and there is certainly no evidence that could lead to such a conclusion. To the contrary, I am satisfied, by the evidence of Ms Keating and by the contemporaneous documents, that the actions undertaken were undertaken in good faith and in accordance with what was perceived to be the best interests of Ms Lee's health. Ms Keating was presented with a dilemma. She was at pains to ensure that the AEC placement did not aggravate Ms Lee’s situation. She was presented with reports from an independent consultant psychiatrist that suggested that the placement that had been arranged for Ms Lee was outside her range of capacity and that work in “Centrelink or similar departments where she has to deal with the public or customers who are likely to be threatening, abusive or create conflict” might cause a relapse of her condition. The AEC position was one which involved Ms Lee in dealing with the public. And, it must be said, Ms Lee was not an easy person to deal with. So much is evident from the e-mails sent by her to Ms Keating and Ms Ivers.
Moreover, much of Ms Lee's criticism proceeds on the footing that the opinions expressed by Professor Morris were erroneous and that those of Dr Trott were to be preferred. Ms Keating had no reason to reject the opinions of Professor Morris and the policy of Defence obliged her to give that opinion preference over that of Dr Trott. Informed now by the views of Dr Gray it might be concluded that, on balance, Professor Morris’ opinions were extreme. But Ms Keating did not have the benefit of that report and was obliged to make a decision which she did, I am satisfied, in the best interests of Ms Lee. As I have said, I am satisfied that the cessation of the AEC placement was taken in a reasonable manner.
The refusal of miscellaneous leave with pay
Ms Lee's particulars make, in essence, two complaints about the decision, taken on about 17 August 2010, to refuse miscellaneous leave to Ms Lee. First it is said that Defence, having received a report from Dr Gray which assessed Ms Lee as having demonstrated a capacity for APS2, APS3 and APS4 level work with the AEC, did not take that report into account in refusing Ms Lee's application. And it is said that Defence had not offered or provided Ms Lee with any work duties which would have enabled her to earn a salary (either before or after the receipt of Dr Gray's report).
Again, in my view, the decision to refuse miscellaneous leave was not a decision that was inherently unreasonable. Nor, in my view, could it be said to have been taken in an unreasonable manner for the reasons advanced by Ms Lee.
The argument advanced on behalf of Ms Lee seemed not to articulate why it was necessary for MAJGEN Cossen to be informed of the conclusions reached by Dr Gray nor is it apparent to me why that ought to have been so. The fact that the original report made mention of the request for a report from Dr Gray does not require that the resulting opinion be considered by the decision-maker. In the context of the decision that was being made, the fact that a report had been sought from Dr Gray in order to resolve the apparent conflict between the opinions of Professor Morris and Dr Gray was likely irrelevant. It was not necessary to inform the decision-maker of the fact of the request, a fortiori it was unnecessary to inform the decision-maker of the opinion expressed.
Equally, Ms Lee's second criticism is unfounded. Ms Lee did not identify any basis that would have obliged Defence to offer to her, or provide her with, work duties. I can see no basis upon which it was obliged to do so. The decision to grant or refuse miscellaneous leave was discretionary. It was not bound to do so by the terms of the order of the Federal Magistrate and no other obligation was identified. Ms Lee had available to her considerable annual and long service leave entitlements. It was her choice to refuse to avail herself of those entitlements. She chose, instead, to seek indefinite paid leave which was refused.
In the result I am satisfied that the decision to refuse Ms Lee’s request for paid miscellaneous leave was both reasonable and was taken in a reasonable manner.
Conclusion
In light of these conclusions I am satisfied that each of the administrative actions which have been identified as causing Ms Lee's condition was a reasonable administrative action taken in a reasonable manner in respect of Ms Lee’s employment. That being so the condition suffered by Ms Lee, although satisfying the definition of “disease” in the SRC Act, does not satisfy the definition of “injury”.
It follows that the decision under review will be affirmed.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC ........................................................................
Associate
Dated 10 December 2012
Date(s) of hearing 16, 17 & 18 October 2012 Counsel for the Applicant Mr M Black Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Mr A Harding Solicitors for the Respondent Australian Government Solicitor
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