Chaudhri and Comcare (Compensation)

[2016] AATA 222

Chaudhri and Comcare (Compensation) [2016] AATA 222 (8 April 2016)

Division	GENERAL DIVISION
File Number	2014/3558
Re	Vikrant Chaudhri
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	8 April 2016
Place	Sydney

1.    The reviewable decision, being the decision of Comcare made 15 May 2014, is set aside.

2.    In substitution it is decided that Comcare is liable to pay compensation to Mr Chaudhri in respect of an injury, being an adjustment reaction with mixed emotional features, which was contributed to by his employment by the Australian Tax Office.

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

J W Constance
Deputy President 

CATCHWORDS

COMPENSATION - Workers Compensation for injuries - adjustment reaction with mixed emotional features - whether injury suffered as a result of reasonable administrative action taken in a reasonable manner in respect of employment - decision set aside and substituted

LEGISLATION

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

CASES

Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21

REASONS FOR DECISION

Deputy President J W Constance

8 April 2016

INTRODUCTION

1. Mr Chaudhri became a permanent member of the staff of the Australian Taxation Office in 2007. He retired from his position in 2015. During the entirety of his employment he worked in the call centre answering telephone enquiries from taxpayers.

2. In July 2012 Mr Chaudhri made a claim for workers’ compensation in respect of a psychiatric condition. He first became aware of the condition on 16 July 2012, following a meeting with his supervisor. Mr Chaudhri has been diagnosed as suffering an adjustment reaction with mixed emotional features.

3. Comcare accepts that Mr Chaudhri's employment in the Tax Office contributed to his condition to a significant degree. However it denies it is liable to pay compensation in respect of the condition as it was “suffered as a result of reasonable administrative action taken in a reasonable manner.” This exclusion is part of the definition of an “injury” which is compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth). This is the Act under which Mr Chaudhri makes his claim.

4. Comcare points to two meetings between Mr Chaudhri and his supervisor as being reasonable administrative action and says that on each occasion the administrative action was taken in a reasonable manner. There is no dispute that, at least in part, events which occurred at these meetings contributed to Mr Chaudhri's illness.

5. In a decision made on 15 May 2014 Comcare denied that it was liable to compensate Mr Chaudhri. He has applied to the Tribunal to review this decision.

6. For the reasons which follow the decision under review will be set aside and it will be decided that Comcare is liable to compensate Mr Chaudhri in respect of the injury he has suffered.

   LEGISLATION

7. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:

   (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8. Injury is defined in subsection 5A(1) of the Act. The relevant part of the definition reads:

   injury means:

   a disease suffered by an employee …

   …

   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.

9. In subsection 5A(2) reasonable administrative action is taken to include:

   (a)a reasonable appraisal of the employee's performance;

   (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;

   (c)a reasonable suspension action in respect of the employee's employment;

   (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;

   (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

   (f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

10. Disease is defined in section 5B to mean:

    (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.

11. In subsection 4(1) ailment is defined:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    BACKGROUND

12. Unless stated otherwise the following findings of fact are based on the evidence of Mr Chaudhri. He impressed me as an honest witness who gave his evidence to the best of his recollection. It may be that at times his perception of events in his workplace was different to that of those he worked with, but I am satisfied that he has honestly related events as he perceived them.

13. After his initial training Mr Chaudhri worked as a member of the team taking business-related enquiries.  When he commenced this work there was no requirement that he take a specified number of calls in any given period.  Management emphasised that the quality of service provided to the enquirer was paramount. It was normal practice for all operators to have their incoming enquiry calls monitored. This practice was ongoing.

14. Management also required that operators adopted a “whole of client approach” by which the operator was required to deal with all issues that were apparent on the file, not just those raised by the taxpayer.  If a call involved more than one issue it was regarded as a “mixed call”. There were no management benchmarks for mixed calls.

15. All staff were appraised twice each year – once at the beginning of the financial year and once mid-year. These appraisals were not always carried out on time. Over the years following his appointment Mr Chaudhri received positive appraisals. The quality of his work was never an issue and he always exceeded the benchmark of at least 90 per cent of calls being rated as meeting requirements or above.

16. From 2009 until 26 April 2012 Mr Chaudhri performed “escalation duties” which involved his taking calls referred to him by other operators, less experienced than he. These duties were usually performed by APS4 staff.  Mr Chaudhri was at APS3 level. By 2012 80-90% of Mr Chaudhri's work involved taking escalation calls.

17. From early 2011 until March 2012 Mr Quigg was Mr Chaudhri's supervisor. In Mr Chaudhri's opinion he enjoyed a “near perfect working relationship” with Mr Quigg.[1]

    [1] Mr Chaudhri's evidence 22/02/2016.

18. In March 2012 Ms Fiona Gray commenced as Mr Chaudhri's supervisor. From shortly after Ms Gray’s appointment Mr Chaudhri perceived that his working relationship with her was unsatisfactory.  Incidents which caused him concern included Ms Gray arranging for his belongings to be moved from one workstation to another during his absence and without his consent. On occasions he was distressed by Ms Gray speaking to him while he was dealing with telephone enquiries and by questioning him about the time he was away from his desk, which was necessitated by a medical condition.

19. On 26 April 2012 a discussion took place between Ms Gray and Mr Chaudhri during which Ms Gray repeatedly advised Mr Chaudhri that he needed to reduce the average handling time of his calls. Mr Chaudhri described Ms Gray as “harsh and critical” of him during this conversation. During the discussion Mr Chaudhri advised Ms Gray that he was not prepared to continue taking escalation calls as this was a requirement of an APS4 role and not that of an APS3.  He told Ms Gray that he was being taken advantage of by being asked to perform duties for which he was not paid at the appropriate level.

20. In about mid-May 2012 Mr Chaudhri took leave and returned to work on 2 July 2012.

    THE MEETING BETWEEN MS GRAY AND MR CHAUDHRI ON 4 JULY 2012

21. At this meeting Ms Gray and Mr Chaudhri discussed a new call monitoring framework to be implemented the following August and further training Mr Chaudhri was required to undertake. This training was required of all operators and was not specific to Mr Chaudhri.

22. Ms Gray then advised Mr Chaudhri that monitoring of his calls on 3 May 2012 suggested that he was not completing the after-call work properly.  Mr Chaudhri told Ms Gray that he was not prepared to discuss this issue as she had not provided him with a copy of the report as he had previously requested. He said that he would respond to the issues raised in the report.

23. Mr Chaudhri described the remainder of the meeting as follows:

    This turned argue-mental as Mrs Gray questioned me why I was not willing to discuss things verbally. I told her that there was a trust deficit and no more verbal talks, if she needs to discuss any performance issues, then all be done in writing as I will respond to all false, mischievous allegations in writing. I also reminded her that in our last meeting on the 26^th April, 2012 I had asked her about the AHT benchmark for the mixed calls and I advised her that they were not updated after the implementation of new systems and new procedures in SMART, so they do not reflect the truthful benchmarks, I gave her the example of PAYGI and how the new procedures are lengthy and AHT benchmark was not changed. Mrs Gray again ignored this point but kept repeating that I need to reduce the AHT without any strategy or any recommendations. During this heated discussions, I stated [sic] getting chest pains as this situation became quite distressing and we were going only in circles. First aid was called and after which the meeting resumed and then concluded soon after.[2]

    [2] Exhibit A2.

24. Ms Gray provided a statement made 15 April 2015[3] and gave evidence. She described the meeting in the following terms:

    I arranged a meeting with Mr Chaudhri on 4 July 2012. He had been out of the office for a while leading up to this time and the meeting was intended as a catch up and a review of how he was tracking. It was informal. I had some call observations that I think Mr Quigg had done with some points about whether the calls met the quality criteria at the time. Some of the calls did not. We discussed call control, active listening and techniques Mr Chaudhri should try to use during his calls. I remember Mr Chaudhri did not appear happy about the feedback I gave but he did not say much during our meeting. He told me he thought my feedback was biased. At the end of the meeting he said he felt unwell.

    During our meeting on 4 July 2012, I do not recall insisting that Mr Chaudhri reduce his average call handling time. The telephony team was always focused on calls being of an appropriate length. As long as the time spent on a called [sic] was justified, I did not take issue with the length of calls. I may have said we needed to identify opportunities to improve average call handling time, and look at what is causing calls to take longer than they should. [4]

    [3] Exhibit R6.

    [4] Exhibit R6 paras 18-19.

25. Ms Gray did not recall Mr Chaudhri asking for a copy of the report of the monitoring of his calls carried out in May 2012.

    THE MEETING BETWEEN MS GRAY AND MR CHAUDHRI ON 16 JULY 2012

26. Mr Chaudhri became ill a few days after the meeting on 4 July 2012 and was absent from work on sick leave until 16 July 2012.

27. On 16 July 2012, as Mr Chaudhri was about to take a break from his work following a lengthy telephone discussion, Ms Gray called him to meet with her immediately, which he did.

28. Mr Chaudhri's recollection of the meeting is that Ms Gray advised him that while he had been on sick leave more of his calls had been monitored and that they were all “red  calls.”  By this he understood that his conduct of the calls was unsatisfactory as each call had been too long. He was unaware of the calls to which Ms Gray was referring and she did not give him a copy of a report of the monitoring process. He believed that she was assessing the calls against the new monitoring framework which, at the time, had not been introduced. He told Ms Gray that although she continued to monitor his calls she had not provided to him a copy of the report of the previous monitoring.

29. In a statement provided to Comcare in September 2012 Mr Chaudhri described the meeting as follows:

    After this incident on 04/07/12, I tried to work normally for the next two days, even though my body was stressed out and was developing cramps in muscles. I fell sick after this. My GP not aware of these incidents at the workplace thought the pains in the muscles may be due to a viral infection and treated with antibiotics and was off work till 16^th July, 2012.

    On returning back to work on 16/0712 [sic] during the day while I was on my morning tea break, when my manager called me up for discussion. This time she said, in my absence, she had some old calls monitored by another work colleague based on the new quality monitoring framework. She advised if these calls are assessed, under the new quality framework, they will be marked fail calls, due to excessive time spent on them. I reminded her of our pervious [sic] conversation, in which I had requested written feedback from the previous assessment and that I still haven’t received it.

    She ignored it again and advised why I would not reduce the AHT? I said I’m not willing to discuss the issues verbally anymore and again requested written feedback, which she seemed hesitant. I advised her I will send my responses back in writing.

    In her interrogating style she asked me why I would not respond her verbally [sic], that was the time I told her I will call up an urgent meeting with the Director. After this we left the room, I encountered severe chest pains, and sent an email to the first aid officer on the same floor and to my manager as she was not on her desk. When she came back, I advised of the email I sent. She replied she will read it after she comes back from the meeting.

    This was the time when I advised her of the chest pains. She called for the first aid coordinator, till then my condition had worsened, my body started turning cold, hands and arms were cramped.[5]

    Shortly after this meeting Mr Chaudhri was taken to hospital by ambulance.

    [5] Exhibit R1 pp112-113.

30. Ms Gray described the meeting in her statement of 15 May 2015:

    I do not recall Mr Chaudhri asking for a call monitoring report during our meeting. I think Magi Valencia, who had undertaken some informal monitoring of Mr Chaudhri’s calls, sent it to me in May 2012 and it was not immediately provided to Mr Chaudhri as he was frequently off work for prolonged periods. I remember finding it and sending it to the director Kathy McDonald, which I think happened after I left the team. I presume Ms McDonald provided it to Mr Chaudhri.

    Mr Chaudhri had time off work after our meeting on 4 July 2012 and I think he returned on 16 July 2012, which is why I held a meeting with him on that day. It was another informal routine work meeting. The purpose of the meeting, like the one on 4 July, was to encourage him and help him to improve and to finalise the notes of our discussions on 4 July. I recall that I reiterated to Mr Chaudhri that there was a transition period in place so staff could adjust to the new quality framework and if he felt he needed extra assistance coping with the changes, he could speak to the Assistant Director, the Director, or to EAP.

    During our meeting I did not refer to formal call observations that were entered into the ATO database and would affect whether Mr Chaudhri was found to adhere to the key performance indicators. Like I did with all staff, I suggested ways Mr Chaudhri could improve his performance so he would not be penalised when it came to official call observations that were entered into the system. During the meeting Mr Chaudhri said he wanted to speak with a director about the support I was providing.

    After the meeting I went to Mr Chaudhri’s desk and showed him how to send a calendar invitation to Peter Hessell, the regional director. I then went and spoke to my Assistant Director and when I returned to my desk Mr Chaudhri told me he had sent me and one of the first aid officers an email saying he was experiencing chest pain. I arranged for three first aid officers to attend; we called an ambulance twice—on the first occasion Mr Chaudhri did not attend hospital, either because he did not want to go or because the ambulance officers did not consider it necessary, but on the second occasion, he went to hospital. [6]

    [6] Exhibit R6 paras 21-23.

    ISSUES FOR DETERMINATION

31. The following issues arise for determination.

    (1)Were either, or both, of the meetings of 4 July 2012 and 16 July 2012 “reasonable administrative action taken… in respect of [Mr Chaudhri’s] employment”?

    (2)If so, was the reasonable administrative action taken in a “reasonable manner”?

    (3)If so, did the reasonable administrative action contribute to Mr Chaudhri's ailment to a “significant degree” by his employment?

    CONSIDERATION OF THE ISSUES

    Issue 1.          Were either, or both, of the meetings of 4 July 2012 and 16 July 2012 “reasonable administrative action taken … in respect of [Mr Chaudhri’s] employment”?

32. In their joint judgement in Commonwealth Bank of Australia v Reeve and Another[7] Rares and Tracey JJ. said:

    The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.[8]

    [7] [2012] FCAFC 21.

    [8] At para 60.

33. Their Honours went on to distinguish Mr Reeve’s tasks of attending teleconferences and dealing with customer surveys from administrative action in respect of his employment as the former were “part and parcel of his employment”.[9]

    [9] At para.61.

34. As set out above Ms Gray described the first meeting as an informal meeting intended as a “catch up and a review” following Mr Chaudhri's absence from the office.  She described the second meeting as “another informal routine work meeting.”  [Emphasis added]. 

35. When Ms Gray gave evidence she reiterated that both meetings were informal and said that they were not part of performance management or appraisal.  Further, the monitoring of calls was done for all staff and was not done in respect of Mr Chaudhri's calls any more than those of other staff members. It was not normal practice to have an agenda for coaching sessions and there was no requirement that email reports on such sessions be provided.

36. Ms Gray said that the new quality framework to be introduced in the second half of 2012 involved a new focus on call length and for this reason training of staff was required. She agreed that the calling of the meeting with Mr Chaudhri on 4 July 2012 did not indicate that there was a problem with his performance; it was arranged for catch-up training which was done with all staff to assist with the introduction of the new framework.

1. I accept Ms Gray’s evidence as to the nature and purpose of the meeting on 4 July 2012 and 16 July 2012. 

2. Although Mr Chaudhri perceived Ms Gray’s attitude to him during the meetings as critical and challenging, the nature of the meetings is to be determined objectively in deciding whether they are to be classed as reasonable administrative action.

3. Based on the evidence of Ms Gray, I am satisfied that each of the two meetings was reasonable administrative action.  However, also based on her evidence, I am satisfied that neither of the administrative actions were taken in respect of Mr Chaudhri's employment.

4. Ms Gray determined the timing and the content of the meetings. Clearly she was not engaged in any form of appraisal or disciplinary process, but rather engaged with Mr Chaudhri in routine training in preparation for the introduction of the new system. This was training undertaken with all operators. In her words, “like I did with all staff, I suggested ways Mr Chaudhri could improve his performance so he would not be penalised when it came to official call observations that were entered into the system.” [10]  That Mr Chaudhri may have regarded the meetings differently is irrelevant.

   [10] Exhibit R6 para 22.

5. The actions relied on by Comcare as coming within the exclusionary provision of the definition of “injury”  were not actions directed to Mr Chaudhri's employment as such, but rather were “action forming part of the everyday duties or tasks that the employee performed in his …… employment or job.”[11] As the person performing the action, Ms Gray made this very clear.

   [11] Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21 at para 60.

6. The meetings were analogous to the teleconferences considered in the matter of Commonwealth Bank of Australia v Reeve and Another which were events that Mr Reeve, like Mr Chaudhri, found distressing but which were found not to constitute administrative action in respect of employment.

7. Further, on the basis of Ms Gray’s evidence, I am satisfied that the actions relied on by Comcare were not reasonable administrative action within the categories set out in subsection 5A(2). Counsel for Comcare did not argue otherwise.

   The second and third issues

8. By reason of the conclusion I have reached in relation to the first issue, these issues do not require consideration.

   CONCLUSION

9. The reviewable decision, being the decision of Comcare made 15 May 2014, will be set aside.

10. In substitution, it will be decided that Comcare is liable to pay compensation to Mr Chaudhri in respect of an injury, being an adjustment reaction with mixed emotional features, which was contributed to by his employment by the Australian Tax Office.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 8 April 2016

Dates of hearing	22- 24 February 2016
Date final submissions received	24 February 2016
Counsel for the Applicant	L Grey
Solicitors for the Applicant	P Hansen; CommComp Lawyers
Counsel for the Respondent	A Dillon
Solicitors for the Respondent	S Leembruggen; Sparke Helmore Lawyers