CESNA and COMCARE

[2011] AATA 673

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 673

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2011/0063

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN CESNA

Applicant

And  COMCARE

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 29 September 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS

COMPENSATION — psychiatric injury — reasonable administrative action — extended performance management process — raised voices and direction language — decision affirmed

Safety Rehabilitation and Compensation Act 1988, ss 5A and 14.

Hart v Comcare [2005] FCAFC 16

REASONS FOR DECISION

29 September 2011 Senior Member Bernard J McCabe

What this case is about

1.Mr John Cesna claims to have developed a psychiatric condition as a result of stressful events that occurred in his former workplace during 2007-2009. He has applied for compensation. Comcare acknowledges events in the workplace during 2009 in particular contributed to the onset of the applicant’s psychiatric symptoms but denies it is liable to compensate the applicant under s 14 of the Safety Rehabilitation and Compensation Act 1988 because the events in question were, or included, reasonable administrative action taken in a reasonable manner within the meaning of s 5A of the Act.

What this case is not about

2.

I should clarify at the outset what claims I have decided are irrelevant to my decision. Mr Cesna was determined to use the proceedings to put Medicare “in the dock” over a wide range of perceived short-comings. As I will explain in my discussion of the evidence below, he also seemed intent on using the hearing to settle scores with managers who had upset him. He wanted to introduce evidence about the “poisonous culture” at Medicare. But this case is not about culture, or whether Medicare is a good or enlightened employer. It is not about wrongs that were allegedly done to others, or whether it was a good idea for

Mr Cesna’s office to be subsumed into Medicare in the first place. It is not about his perceptions of the competence of his supervisors. It is certainly not about Mr Cesna’s belief that Medicare employs too many women in managerial positions, or his doubts over whether women make good managers. Mr Cesna wanted to talk about all of these things, but I ruled that he could not do so.

3.I took that approach to the evidence because the law with respect to reasonable administrative action suggests such evidence is irrelevant. I accept a number of events in the workplace might make a significant contribution to the onset of a condition. But if the condition is found to have occurred “as a result of” reasonable administrative action within the meaning of the legislation, a proper reading of s 5A suggests that injury is not compensable: see Hart v Comcare [2005] FCAFC 16 at [22]-[23] per Branson, Conti and Allsop JJ. It follows there is no point discussing at this stage whether other events might also have made a contribution to the onset of Mr Cesna’s condition. The real issue here is whether the performance management process that I will describe shortly answers the statutory description of reasonable administrative action. If it does, the condition which resulted from that action is not compensable, regardless of what else may have been going on at the time.

The facts

4.In the reasons that follow, I focus on the formal and informal performance management processes that were commenced in 2007 and which concluded in 2009. There is no doubt that a performance management process qualifies as administrative action for the purposes of the Act. Those processes, and the way they were conducted, clearly made a significant contribution to the onset (or perhaps aggravation) of the applicant’s psychiatric condition. In that sense, the condition can properly be said to be a result of that behaviour. There were also a number of other interactions between the applicant and his managers in the period which the applicant says were stressful, and which may have contributed to his condition.

5.The fact-finding process in this case was difficult. Mr Cesna made a number of allegations of a general nature but he was not inclined to particularise his complaints before the hearing despite the efforts of the Tribunal’s conference registrars. He proved an elusive witness, which made the task of divining the facts even more difficult. I will say more of his evidence in due course.

6.Mr Cesna worked at Medicare Australia in a managerial capacity between 2005 and 2009, when his employment there was terminated. He had previously worked at the Department of Health and Ageing but his entire unit was transferred to Medicare. Mr Cesna said in his evidence at the hearing that his experience at Medicare between 2005 and 2008 was essentially positive. He spoke of managers experiencing excellent conditions, and hinted at examples of enjoyable excess and waste. While life was good for managers, he said he thought that staff lower down in the ranks were not treated well. He insisted he was always good at his job and that he was working efficiently and effectively at all times. He said he had a history of receiving good or excellent reviews from his managers. He presented himself at the hearing as a conscientious, efficient and sensitive manager who cared for his staff and got the job done. He referred on a number of occasions to the satisfaction he derived from the important work of paying out millions of dollars in funds to clients.

7.Mr Cesna did experience some health problems while he worked at Medicare. He required the implant of a cardiac stent in 2007. He said that was a comparatively minor procedure that did not have a negative impact on his functioning or efficiency. Indeed, he said the insertion of the stent may have made him fitter and more productive. But his cardiac symptoms re-emerged at the beginning of 2008. In March 2008, while he was on long service leave, he had a coronary artery bypass. He agreed that was major surgery. He convalesced until June 2008 when his long service leave concluded and he returned to work. As part of his recovery process, he was required to take a number of drugs. He was still taking a variety of medications after he returned to work. He agreed he did not tell his employer he was going to have the surgery, and he did not tell his supervisors about the full extent of his treatment until his doctor wrote a letter that was supplied to Medicare by his union representative in 2009.

8.Mr Cesna claimed things changed at Medicare after he returned from long service leave in June 2008. Whereas he previously enjoyed his work and said he had a good relationship with his former manager, Ms Daly, new managers had taken charge and budgetary constraints were imposed. He said staff were told a 5.8% budget cut was required, and he noted specifically that one manager had said at a meeting that the ‘coach’ positions occupied by Mr Cesna amongst others would have to go. But Mr Cesna also acknowledged that managers had repeatedly said no jobs would be lost as a result of any changes or cuts. Mr Cesna did not believe them. He said he was certain from that point that management had resolved to get rid of him and his staff, and they were determined to do so without paying redundancies – although Mr Cesna also acknowledged he did not ever ask about a redundancy.

9.I was provided with a copy of an email from Mr McInnes, the senior Medicare manager in Brisbane, who discussed the budget cut Mr Cesna referred to in his evidence and submissions. The email was attached to Mr Cesna’s “statement of claim” filed in these proceedings. The email does not foreshadow job losses. It is dated 9 February 2009 – months after the formal performance management process had commenced in relation to Mr Cesna. Taken at face value, the announcement of a budget cut in February 2009 is inconsistent with Mr Cesna’s central submission, namely that he was being hounded from the organisation in response to budget cuts when the administrative action against him began some time before. That apparent inconsistency was put to Mr Cesna, but he rejected it. He insisted managers would have known of the budget cuts months earlier and began to implement their hidden agenda at that point.

10.Throughout most of the hearing, Mr Cesna insisted he was doing an excellent job in the same way he had always been doing it. He claimed to enjoy the support of all of his staff - apart from a few individuals who had been “planted” in the section as management spies, that is. He denied he experienced difficulty working for female managers, noting he had an excellent and productive relationship with his previous manager who was a female. He spoke several times about just wanting to get on and attend to the important business of disbursing millions of dollars in funding to clients. He denied there was any basis for anyone to be dissatisfied with his performance or attitude. He insisted that criticisms of his performance were motivated by Medicare’s hidden agenda to get rid of him in order to cut costs. He interpreted every event that followed through the prism of his understanding of Medicare’s hidden agenda.

11.The evidence does not support Mr Cesna’s claim that his performance was always of a high standard. He tendered a letter from his general practitioner written early in 2009 referring to the serious effect of the many drugs he was required to take in connection with his cardiac condition. The letter referred to side effects of the various drugs impacting on his cognitive function, motivation, memory and other aspects of his behaviour. Mr Cesna reluctantly agreed during oral submissions that the letter suggested serious problems in his performance. I note performance issues appeared to have arisen in 2007 before the applicant began taking the drugs in connection with his 2008 cardiac surgery. Ms Daly had certainly raised concerns about his performance in 2007. In a report referred to in exhibit one at p 137, Ms Daly is recorded as saying Mr Cesna:

…seems to find carrying out all aspects of his role as Team Coach quite demanding as some of these tasks take considerable time for him to complete and that is after reminders and requests from me more than once on occasion. At times it appears that he has not remembered to do a task or is not managing his time to carry out his duties completely.

12.Evidence of Ms Daly’s criticisms was put to Mr Cesna in cross-examination. After earlier praising Ms Daly and citing his relationship with her as an example of his ability to work successfully with female managers, Mr Cesna did not hesitate to describe her as an unreliable person when reference was made to her 2007 complaints. He volunteered that she was forgetful and routinely called meetings that she failed to attend.

13.

I am not in a position to form a view about Ms Daly, but I do not need to do so for the purposes of these proceedings. I note her report prompted a referral to

Dr Buckland, an occupational physician, for an assessment. Dr Buckland opined that Mr Cesna was fit for work but suggested a mediation process might be helpful in resolving some of the attitude and performance issues that had arisen. The subsequent mediation was unsuccessful. Mr Cesna met with his managers on

18 October 2007 to discuss his fitness for duty. There was a discussion of his attitude, which included references to issues about the way in which his team had been integrated into Medicare following the move from the Department of Health and Ageing. The minutes of that meeting (exhibit one at p 311) also record a cryptic note referring to Mr Cesna’s preference for working with Mr Moriarty in the future. I will have more to say about his express preference for working with male managers shortly.

14.Mr Mischke, a senior officer with Medicare’s human resources department, said the meeting in October 2007 was the first step in an informal performance management process that was intended to address the shortcomings in Mr Cesna’s performance. I accept the employer had reasons to believe there were shortcomings in the applicant’s performance, and that a performance management process was appropriate. I note Mr Cesna denied during the course of cross-examination that he was participating in any sort of performance management process during this period. I find that hard to believe: Ms Budd and Ms Moore gave evidence that he was required to attend regular meetings with them where they discussed aspects of his performance. I understand there was extensive discussion of his attitude towards the regular coaching process he was asked to conduct each month.

15.Mr Mischke said the informal performance management process was intended to bring about improvements in an employee’s performance so everyone might be saved from having to resort to a formal process that would be noted on the employee’s record. He explained that if the formal performance management process was unproductive, the employee could be required to participate in a formal efficiency management process. If that process was unsuccessful, the individual’s employment might be terminated.

16.

Mr Mischke said the informal process did not lead to an improvement in

Mr Cesna’s performance. A formal performance management process was commenced in October 2008. Mr Cesna completed a performance support agreement at the outset and commenced regular meetings with his managers who took detailed notes of what transpired. These are found in exhibit one at pp173-193. There are references to a number of shortcomings in Mr Cesna’s performance, especially in relation to the team coaching process. The notes conclude with the observation that Mr Cesna’s performance remained unsatisfactory and recommended he be subject to an inefficiency management process. That process commenced with a formal notice of inefficiency action dated 1 April 2009.

17.The meetings that took place as part of the inefficiency management process are central to Mr Cesna’s complaint about how he was treated. Mr Cesna said he was called to a meeting with his managers. He said the meeting was called out of the blue to discuss the way in which the organisation’s ‘coaching’ process was being implemented (or not implemented) in Mr Cesna’s team. Mr Cesna said he walked into the meeting and was greeted with a barely coherent tirade of shouted abuse. He said he was shocked and dismayed at the conduct of Ms Budd, in particular. He claimed she yelled at him on several occasions, demanding to know “Who do you think you are?” and exclaiming “How dare you say…?” and “I beg your pardon!” in an aggressive tone. He also recalls being told to “Look at me!” and “Sit up straight!”

18.It took some time to work out when the meeting (or meetings) in question occurred. Mr Cesna was not inclined to be precise about dates and he did not give a consistent account of events. I was initially under the impression from Mr Cesna that the objectionable behaviour occurred at the first meeting in the formal performance management process in October 2008. He conveyed the impression that almost all of the meetings in which he participated thereafter (and perhaps some of the meetings that occurred before) were conducted in the same aggressive fashion. But a letter from the Community and Public Sector Union (the CPSU) enclosing correspondence from Ms Williamson, the CPSU officer, makes it clear the raised voices to which Mr Cesna referred occurred during a meeting or meetings held as part of the formal inefficiency management process after April 2009.

19.It would have been useful to hear from Ms Williamson, but she was not available to give evidence. I was told she was on leave. Mr Cesna asked for an adjournment so we could hear from her when she returned to her workplace, but I did not think it was appropriate to accede to that request – one of several requests for an adjournment that he made during the hearing. Mr Cesna has had ample time to organise for the witness to attend. He knew her evidence was likely to be important to his case: that is why he introduced the evidence, albeit late in the day. He complained that he did not know Ms Budd in particular would give evidence, but I accept the respondent was unclear about precisely who it should call as a witness until just before the hearing because Mr Cesna was reluctant to particularise his own case. I am satisfied it was appropriate to proceed without further adjournment because the applicant has had a reasonable opportunity to prepare and present his case.

20.The letter from the CPSU dated 21 July 2011 is uninformative. But the correspondence between Ms Williamson and the relevant officer at Medicare dated 6 November 2009 is more revealing. In that letter, Ms Williamson expressed concern over the conduct of two of the managers which was “overly demeaning and hostile”. Ms Williamson confirmed in the letter that she was present for at least one of the meetings in question where this behaviour was on display.

21.

It is not clear how much of Ms Williamson’s report was based on her first-hand observation and how much was based on Mr Cesna’s account of what occurred. Exhibit 7 is a draft of the letter from Ms Williamson. It bears handwritten notes made by Mr Cesna who apparently suggested additions to the letter that were subsequently included in the final version. The phrase “Who do you think you are?” did not appear in the draft, for example; it appears in the hand-written notes. 

Mr Cesna denied in cross-examination that he marked up the draft with a view to having Ms Williamson make changes in her final letter. He suggested the remarks were merely an aide memoire for him. That seems unlikely given at least some of the suggestions or comments contained in the handwritten notes were taken up in the final version of the document. I am satisfied Mr Cesna had a hand in the drafting of the document despite his denials.

22.As it happens, Ms Budd agreed she did use the expressions “Who do you think you are?”, “How dare you say…?” and “I beg your pardon!” during the course of one or more of the meetings. She also accepted Mr Cesna may have been told to “Look at me!”. Ms Budd insisted she did not yell or shout or even raise her voice “to an unacceptable level”, although she agreed she used a tone that was “authoritative and directive”. Ms Moore, Mr Cesna’s immediate supervisor who was also present at the meetings, said in evidence that she did not recall the specific phrases but agreed Ms Budd had used a tone that was “authoritative and directive”. She also specifically denied there was shouting or raised voices.

23.I am not sure of the difference between a tone that was “authoritative and directive” and a raised voice. I had the opportunity to reflect on that issue in a practical sense when I found myself using a raised voice and a tone that might be characterised as “authoritative and directive” during the course of the hearing in response to Mr Cesna’s insistence on putting a gratuitously offensive and irrelevant question to a witness in cross-examination.

24.I accept Ms Budd did use the phrases. I am also satisfied she did raise her voice, at least on some occasions. Phrases like “Who do you think you are?” are redolent of outrage and exasperation and are more likely to be expressed in a raised voice.

25.Evidence that a manager raised her voice at an employee during a performance management process needs to be scrutinised carefully. That sort of behaviour is always a matter of real concern. But all of the circumstances of the case must be considered, and the conduct of the employer must be seen in its proper context before a judgement is made over whether the conduct is, in truth, reasonable. The respondent says the employer’s conduct was reasonable if one has regard to Mr Cesna’s exasperating and dysfunctional behaviour. I was effectively being told: “You had to be there. If you were, you would see the response was entirely understandable and, in the circumstances, reasonable.”

26.I am satisfied the manager’s conduct at the meetings where voices were raised was reasonable in light of Mr Cesna’s bad behaviour. Examples of that behaviour were provided by Ms Budd in her evidence. She explained how Mr Cesna refused to look at her during meetings, and would address his comments to male colleagues. She took this to be an unsubtle demonstration of his contempt for female managers. Her demand that he “Look at me!” should be understood in this context. She said questions including “Who do you think you are?”, “How dare you say…?” and “I beg your pardon!” were all responses to Mr Cesna’s own aggressive or inappropriate or insensitive remarks. She also explained her reactions were driven by frustration with Mr Cesna’s uncooperative behaviour in the meetings. She said he had a habit of avoiding questions by changing the subject or embarking on definitional disputes. She said meetings were difficult to manage because Mr Cesna would insist on avoiding the issues.

27.Mr Cesna disputed all of this. He said he behaved professionally and calmly throughout the meetings at all times, although he was shaken by the bad behaviour of the managers. But his performance during the hearing suggests Ms Budd’s account of what occurred is more credible. All of the behaviour that Ms Budd described was on show in the hearing. Mr Cesna refused to answer many questions directly. He was evasive and argumentative. When he did not like the focus of a question, he would respond by making generalised complaints about the conduct of his employer and refer to evidence from unproduced documents and unnamed sources. He conflated events and jumped from allegation to allegation. He was occasionally belligerent. He made a number of startlingly offensive remarks and appeared to enjoy the offence and upset he caused. The clearest example of that behaviour came when he was questioning one of the witnesses. He prefaced the question by saying his doctor had opined that a woman who raised her voice in a meeting obviously had health issues – and then proceeded to ask the witness if she had a thyroid problem. The smirk on his face as he asked the question confirmed this was not an instance where a self-represented applicant unwittingly asked an improper question in the unfamiliar environment of the Tribunal. Mr Cesna’s behaviour was intentionally offensive.

28.Some of Mr Cesna’s offensive behaviour was unintentional, which suggests he was also capable of causing offence and frustration without realising what he was doing. He tendered a statement which included the following paragraph, for example:

The culture of Medicare is Matriarchal society, women greatly outnumber men, meetings I have attended with conference roomful of people and I was the only male, large no of homosexuals esp in personnel, transvestites – he was on our floor ie Xmas fairy, but overall an aggressive and bullying culture of lower level staff.

29.I drew that paragraph to Mr Cesna’s attention during the course of his submissions. He seemed nonplussed that I would draw any adverse inference from what he had said. I formed the impression from that extract and from his oral evidence that he was someone who had strong negative views on the role of women (amongst others) in the workplace, and that he was not slow to express those views in the course of his relationships with his managers. He also let his negative views of his superiors be known to his own staff. He recounted in his evidence that he and his staff referred to two of his managers as “Dumb and Dumber”. When I asked whether he thought it was appropriate to refer to his superior colleagues in that way in front of staff, Mr Cesna shrugged and said he thought it was justified because of the way his managers treated him.

30.Given my observations of Mr Cesna’s performance at the hearing, I have no difficulty accepting the truth of Ms Budd’s account of his behaviour. I certainly prefer it to Mr Cesna’s account given he demonstrated the offensive and exasperating behaviour in question at the hearing. I accept that behaviour would have engendered real frustration and even a sense of outrage from his managers. Ms Budd’s raised voice was understandable and probably inevitable in the face of Mr Cesna’s behaviour. It was unfortunate that relations had reached that point but I accept the management behaviour at the meetings was not unreasonable in all the circumstances.

31.I am concerned about the length of time it took to complete the extended performance management process. Mr Cesna suggested he was persecuted for around 400 days, adding that even Christ himself was not persecuted for that long. Mr Mischke said the performance management process occurred over a longer time frame for several reasons. To begin with, there were several steps. There was an informal management process. Then there was a formal performance improvement action program, followed by formal inefficiency action. He pointed out the process was broken up and delayed when Mr Cesna’s union representative provided information about Mr Cesna’s medical condition. He went on extended leave and medical reports were obtained. The process was not resumed until he returned. Mr Mischke also said a number of the scheduled meetings in the extended performance management process were cancelled or rescheduled at Mr Cesna’s request. Mr Mischke suggested the painfully slow process in the meetings occurred because Mr Cesna did not appear to understand or accept the magnitude of the problems.

32.The process did take longer than was desirable, but there was a variety of reasons for the delay. The formal nature of the proceedings was appropriate given the gravity of the potential consequences that could flow from an adverse assessment of the employee’s progress, but it also meant the process was cumbersome. A number of people had to be present for the inefficiency action meetings, for example, which meant they were hard to organise. Goals had to be set and performance had to be assessed and discussed at each step of the way. I also accept the problems with Mr Cesna’s health – most obviously the need for an extended break following the evidence from his treating doctor in May 2010 – contributed to the delay. In all the circumstances, I am not persuaded the process was carried on unreasonably.

33.Mr Cesna referred to several other examples of managerial behaviour that he claimed were unreasonable. He says these interactions with management also made a significant contribution to the onset of his condition. The extent of the contribution in each case is unclear. For example, he cited his belief that management had planted ‘informers’ within his team who would report back to them about his conduct. He identified a number of these individuals whom he said were regarded as being immune from action because they enjoyed management protection and favour. He said it was inappropriate that managers would be having conversations with his staff behind his back. He also referred to being subject to covert surveillance. By way of example, he noted he had been counselled about failing to complete a time sheet correctly when he was seen leaving work at a time when his time sheet indicated he was still in the office. He also said emails he received were rude and patronising.

34.Ms Moore agreed she had meetings from time to time with staff that reported to Mr Cesna. She insisted there was nothing unusual about that. In the circumstances, I am inclined to agree. Ms Moore was entitled to talk to Mr Cesna’s staff. I am satisfied these interactions between staff and their manager are properly characterised as administrative action, and that it was reasonable. It was Mr Cesna’s stringent reaction to Ms Moore’s behaviour that was unreasonable.

35.Mr Cesna appeared to resile from the suggestion that he was the subject of covert surveillance outside the office. I took his complaint to be simply that he was being monitored and that managers took every opportunity to complain about his behaviour. Monitoring an employee’s performance (including his attendance) is clearly administrative action. And it is difficult to dispute that he was being monitored: he was subject to a performance management process, after all. I am not satisfied the evidence establishes that managers were behaving unreasonably in this regard. They were entitled to keep a close eye on his performance given the behaviour his own doctor referred to in exhibit 2.

36.I saw at least one email regarding a tea-room roster which had been sent by Ms Moore. I accept that sort of interaction between an employee and his supervisor was properly characterised as administrative action. The language in the email is brisk. But I accept the email should be read in the context of a larger exchange that had apparently been going on in relation to a dispute over the tea-room roster. Read in isolation, the tone of the email might raise eyebrows; but given the context of a larger dispute, the tone is less surprising. I am not persuaded the email communications were unreasonable in the circumstances.

37.There were also concerns expressed about the requirement that Mr Cesna “coach” his staff. One of the principal criticisms of his performance as a manager was that he failed to adopt and implement the coaching strategy. Mr Cesna said he did not think the coaching process was helpful or necessary and objected to doing it as intensively as he was required to do. He said his staff reacted negatively. I have no idea whether coaching is a good idea, or whether Medicare was ultimately right to insist that its managers undertake coaching. But it is clearly open to management of an organisation like Medicare to adopt coaching as a management tool. Mr Cesna says he was singled out and that other managers were not required to implement the coaching program to the same extent as him, but Mr Mischke and the other management witnesses explained that coaching was a priority and Mr Cesna was conspicuously reluctant to conform. They said it was necessary for managers to demonstrate proficiency in coaching; once they had done so, they were allowed to coach their staff at a lower level of intensity. It seems from Mr Mischke’s evidence that Mr Cesna never graduated to this point. In any event, I am not persuaded Medicare’s emphasis on coaching and focus on Mr Cesna to this end was unreasonable in the circumstances.

Summary

38.Mr Cesna’s main complaint against his employer arose out of the conduct of the formal performance management process. It is clear his experience of that process on its own made a significant contribution to the onset of his conditions, even if other events in the workplace might also have played a part in the deterioration of his health. I accept the extended performance management process which involved meetings where Mr Cesna says he was abused was reasonable administrative action that was justified by evidence of his poor performance (especially his reluctance to comply with management’s expectations over coaching) over a long period. Mr Cesna came to the attention of his managers because he was not doing his job as they wished. I am also satisfied the administrative action they took against him was carried out reasonably in the circumstances, even where that management action involved raised voices and direct language.

39.The decision under review must therefore be affirmed.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: .....................................................................................
  Associate

Dates of Hearing   28-29 July 2011
Date of Decision   29 September 2011
Applicant   Self-Represented
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent      Dibbs Barker