Cheryl Peters and Comcare

[2012] AATA 636

[2012] AATA 636

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/4942
Re	Cheryl Peters
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Mr John Handley, Senior Member
Date	21 September 2012
Place	Melbourne

The Tribunal affirms the decision under review.

(sgd) John Handley

Senior Member

COMPENSATION – applicant returned to work after a non-compensable injury with certificate to undertake suitable and normal duties – subsequent injury by administrative action of her employer – failure to obtain a transfer and a benefit – whether administrative action was reasonable and taken in a reasonable manner in respect of her employment – decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B

CASES

Commonwealth Bank of Australia v Reeve and Another (2012) 125 ALD 181

National Australia Bank Ltd v KRDV [2012] FCA 543

Buck and Comcare [2012] AATA 327

REASONS FOR DECISION

Mr John Handley, Senior Member

1. Ms Peters, the applicant in this review, has been employed by Australian Taxation Office (the ATO) since January 2007.  On 29 June 2009 she fractured her right little toe at home.  It is agreed between the parties that the injury was outside the scope of her employment.  She was incapacitated for approximately three weeks and returned to work on 20 July 2009.

2. In a claim for compensation dated 7 October 2009 lodged with the respondent (T20, p.56), the applicant recorded that the injury she suffered was stress and anxiety because of management of my graduate (sic) return to work due to fractured toe injury.  She also claimed that meeting with management and management caused her injury or illness (T20, p 58).  The applicant recorded in her Statement of Facts Contentions dated 7 December 2011 lodged prior to the commencement of the hearing that her injury arose or occurred because:

   The managers failed to comply with medical advice and recommendations from the beginning and failed to follow policies, procedures and guidelines as set out by the Australian Taxation Office (ATO) and Public Service Act 1999 (at p 6).

3. The respondent decided in its initial determination that the applicant did suffer adjustment reaction with mixed emotional features (the injury).  The applicant did not challenge the diagnosis and therefore, I am satisfied that the injury was properly diagnosed.

4. The respondent accepted that the applicant suffered a psychological injury to which her employment significantly contributed and therefore, s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) was satisfied. However, it decided that entitlement to compensation was excluded by the provisions of s 5A of the SRC Act (T46, p 162-169) and that decision was affirmed on reconsideration on 17 September 2010 (T60, p 233-237).

5. Section 5A(1) of the SRC Act provides that injury means either a disease suffered by an employee or an injury that is a physical or mental injury that arises out of or in the course of the employment:

   … but does not include a disease, injury … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employees employment.

6. Section 5A(2) records a number of examples that are taken to constitute reasonable administrative action.  For the purposes of this review, subparagraph (f) only is relevant, namely:

   … 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.

7. Ms Dowsett of counsel, submitted on behalf of the respondent at the beginning of the hearing that there were four issues to be determined by this review namely, a finding of diagnosis and date of injury, whether the injury suffered by the applicant was contributed to in a significant degree by her employment with the ATO and whether the injury resulted from reasonable administrative action within the meaning of s 5A(2) of the SRC Act.

8. Ms Dowsett contended that there did not appear to be any dispute about the diagnosis or employment contribution.  I do not understand that submission to amount to a concession on the part of the respondent, rather, that it would not contest the diagnosis or the injury having arisen out of or in the course of the employment and to which the employment contributed in a significant degree.  Those findings were made at the initial determination and affirmed on reconsideration. 

9. The date of injury was contended to be 24 August 2009 but for reasons which will emerge, little turns on that issue. 

10. It was submitted – and I agree – that the focus of this review was whether the injury suffered by the applicant occurred as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment (Transcript, p 5). If that finding is made, the injury is excluded from the s 5A definition and consequently, the applicant would be denied entitlements under the SRC Act.

11. Counsel also submitted (and the applicant agreed – Transcript, p 7) that the four issues contributing to the applicant’s injury, as gleaned from her Statement of Facts and Contentions and witness statement were a) the management of her return to work following injury; b) a decision made not to place her on an on-call roster; c) a discussion with management on or about 10 August 2009; and d) refusing the applicant permission to temporarily transfer to an ATO site at the World Trade Centre (WTC).

    Job description

12. The applicant was employed by the ATO as a property operations officer.  She was principally engaged to work at 414 Latrobe Street (414).  She was also required, when necessary (for example, in the absence of staff), to work at two other ATO locations in the Melbourne Central Business District (CBD) at 390 Latrobe Street and 350 Queen Street.

13. The work required the issuing of building passes to permit staff to move between floors and also to permit contractors to enter the floors.  She was also required to record the entry and exit of motor vehicles used by ATO staff in the course of their employment.  She was on-call to attend to equipment breakdown or malfunctions, for example if a photocopier jammed.  When new employees started, the applicant assisted with their orientation and ensured they had proper equipment and furniture.

14. The applicant described her work as requiring her to undertake a great deal of walking, principally throughout the building at 414 (which occupied six floors) and walking to and working within the other two CBD locations.

    Management of returning to work

15. The applicant returned to work on 20 July 2009, after incapacity of approximately three weeks following the fracture of her toe.  Her return to work was supported by a certificate from Dr Goldberg on the basis that she would undertake suitable work (T5, p 18).  On 27 July 2009, one week after the applicant had returned to work, she provided another certificate from Dr Roche, a colleague of Dr Goldberg (who was responsible for the majority of her treatment from that date) that she was fit for normal duties (T9, p 25).

16. On 23 July 2009, the applicant was called to a meeting with Mark Mitvalski, the property operations site manager at 414.  The applicant objected to the meeting because she had not at that stage had an initial needs assessment by the rehabilitation provider to the ATO, Work Solutions.  (That assessment occurred on 27 July 2009).

17. The applicant said that during the meeting, she asked Mr Mitvalski whether she would be permitted to work at an ATO office at the WTC, in anticipation that her fractured toe would heal within a few weeks and she would then be able to work without restrictions.  The applicant said she had requested a temporary transfer to the WTC because it was closer to her home, had far less staff and responsibilities and would therefore, require minimal walking.  She said that in the absence of a transfer to that site, she would be looking after a site with 400 people (Transcript, p 414) and she would be required to undertake walking between the sites all day long (Transcript, p 10).  She said Mr Mitvalski notified her that such a decision would have to be made by the ATO regional manager.   

18. The applicant said that at the meeting, Mr Mitvalski also discussed a proposed tour of all the CBD sites of the ATO as a familiarisation exercise in anticipation of being placed on the on-call (after hours) roster.  The applicant objected to that proposal because it would require considerable walking and she thought that the inspection was premature, because she was not then fit to be placed on the on-call roster.

19. The applicant was absent from work on 24 July 2009.  She provided a certificate on 27 July 2009 from Dr Roche, her general practitioner, confirming that she had consulted the applicant on 24 July 2009 because she was unwell for work.  The certificate recorded the applicant was fit for normal duties (T9, p 25).  Ms Morse, an officer with Work Solutions recorded in a report dated 3 August 2009 that she spoke with Dr Roche on 29 July 2009 and had learnt that the applicant had complained to Dr Roche that she was not receiving support for modified duties and requested that Dr Roche provide a clearance to undertake pre-injury duties (T10, p 26).  When Ms Morse discussed a proposed return to work schedule with Dr Roche and Ms Peters’ reluctance to request assistance due to previous issues between staff, Dr Roche apparently agreed with a proposal put to her by Ms Morse that she undertakes two weeks of modified duties.  A return to work schedule was devised and signed by Ms Morse and Dr Roche (T53, p 201).

20. In cross-examination the applicant agreed that she returned to work on 20 July 2009 with a certificate from Dr Roche that recorded she was fit for normal duties and had  previously provided a certificate from Dr Goldberg recording that she would be fit to return to work on suitable duties.  She agreed that there was nothing that could be discerned from either certificate indicating any need for assistance upon returning to work nor could anything be discerned from the certificate of Dr Goldberg indicating what duties would be suitable (Transcript, p 67-68).

21. On 23 July 2009 the applicant said that the meeting she had with Mr Mitvalski caused her to be upset.  She did not work the following day and rang him requesting a written note of the matters discussed in the meeting.  She said she preferred the opportunity to properly respond to him in writing.  (Mr Mitvalski prepared a memorandum (T8, p 23‑24) and the applicant responded on 17 August 2009 (T11, p 33-38)).  In her response, the applicant referred to a number of other events and issues that emerged after 23 July 2009.  The applicant said she could not recall whether she had any discussion with Mr Mitvalski about duties that might be regarded as suitable for her, having regard to the fracture of the toe and the pain that she was experiencing in her foot (Transcript, p 74).  She said she did recall that she complained about having to work at ATO sites other than at 414 and having to complete a four week mini register and a site information template. 

22. When pressed on these issues, the applicant agreed that the four week mini register was not due to start until 3 August 2009.  That job involved checking log book entries of three ATO vehicles, two being located at 414 and one at 390 Latrobe Street.  The expectation was that the applicant would process the driver’s recordings of the odometer record at exit and on return.  Additionally, if the vehicle was used for private purpose, the driver was expected to make that entry and the applicant would be required to process it.  The applicant said that she was not given any directive by Mr Mitvalski that the logbook data could be collected by her once each day rather than her having to attend the car park of each building on every occasion that each vehicle departed and returned.  The applicant did not dispute a map which was given to her indicating that the distance between 414 and 390 Latrobe Street was 100 metres.  She also agreed that it would only take about one minute to walk between both buildings, but qualified that answer with the response if you weren't injured (Transcript, p 88-94).

23. The site information template required the applicant to update an existing template which was a type of directory of the ATO premises including the location of ATO equipment and other facilities within its CBD sites at 414, 390 Latrobe Street and 350 Queen Street.  The applicant insisted that the job required her to walk between and within each of those three locations because she had sought relevant information by telephone and e-mail from other staff without success.  The applicant agreed, in the absence of workmate assistance, that a maximum of two trips would be required, namely one trip to each facility to make her own notes and another trip to check the accuracy of the template.  The applicant said she could not recall whether, during the meeting on 23 July 2009, she was asked to complete that job immediately.  She acknowledged that she had seen a memorandum between Mr Mitvalski and Mr Alderuccio dated 24 July 2009 requesting that the job be completed by 31 July 2009.  Nonetheless, she said that she understood that Mr Mitvalski had an expectation that it would be completed immediately.  The applicant agreed that another map shown to her indicating the distance between 414 and 350 Queen Street was 200 metres and would probably require a 2 minute walk.  However, she qualified her response by saying it's dependent on weather – and at that time I was an injured worker but, yes, for an able-bodied…  Later when pressed on that issue, the applicant also said the time taken to walk from 414 to 350 Queen Street would be dependent on the weather and traffic lights and stuff like that (Transcript, p 94 – 98). 

24. The applicant was reminded that she had asked Mr Mitvalski at the meeting on 23 July 2009 that she should be limited in escorting persons into and out of the car park because it aggravates her broken toe.  She said performing that work would aggravate my toe if I had to do it on my own all day long (T8, p 23 and Transcript, p 74). 

25. The applicant said another ATO employee was assigned to assist her on 23 July 2009 and again on 20 and 21 August 2009 but he did nothing all day (Transcript, p 77).  That person was Lars Lindquist who, in an e-mail to Mr Mitvalski on 21 August 2009 complained that he spent eight hours with the applicant on 20 and 21 August and he has not had one proper task to perform that was needed for [him] to be available immediately (T11, p 39).  In the remainder of the email, he complained that he was taken away from his own job when assistance, if needed, could have been provided, within minutes, by a phone call from the applicant.

26. At the meeting on 23 July 2009, Mr Mitvalski expressed his concerns about the applicant taking part in the orientation tour and specifically, whether it was appropriate for her, given her injury, to tour the three CBD sites of the ATO together with an ATO office at Casseldon Place, on foot.  In evidence the applicant agreed that it was appropriate for Mr Mitvalski to have had that discussion with her, that he had probably initiated it because she was reporting difficulty undertaking her duties because of her injury and the tour would have required considerable walking.  The applicant said that any discussion concerning a tour of those sites should have waited until after she had her needs assessment from the rehabilitation provider (Transcript, p 87-88).

    Whether RTW was reasonably managed by employer

27. On many occasions when giving her evidence and in documents lodged prior to the commencement of the hearing, the applicant contended that the employer did not comply with its own policies which she said required decisions that it made, concerning her, to be properly documented. Additionally, she said the ATO did not offer her a rehabilitation program within the meaning of s 36 and s 37 of the SRC Act.

28. In a document appended to her Statement of Facts and Contentions, she referred to a decision of the Federal Magistrates Court in McGuinness v Comcare Australia [2007] FMCA 1486 which she contended was authority for the ATO’s legal obligations to provide her with a rehabilitation program upon her return to work. The applicant agreed that the fracture of her toe did not occur in the course of or out of her employment. She acknowledged that she was not seeking compensation under the SRC Act for that injury. When she was asked to consider s 37(1) and the definition of injury in s 5A, she acknowledged that the employer was not obliged to provide her with a rehabilitation program in accordance with the SRC Act (Transcript, p 99-101).

29. The applicant was asked to consider a report prepared by Ms Morse on 3 August 2009, following an assessment of the applicant on 27 July 2009, entitled Initial Assessment Report and Ergonomic Intervention (T10, p 26-29). 

30. Ms Morse reported that the applicant felt that she was not being assisted by other staff at the ATO.  However, following discussions with Ms Morse and Mr Mitvalski, it was reported that she said she felt more comfortable asking for assistance and that in the event that staff were not willing to assist her, she would contact Mr Mitvalski, who would ensure that assistance was provided.  The applicant said she did not tell Ms Morse that she had a current (walking) endurance of 400-500 m (estimated).  She said she did not then know what her walking endurance was.  The applicant agreed that her ability to drive a motor vehicle would be unaffected by the toe injury; adjustments were made to her workstation; ergonomic equipment was identified and provided; she was encouraged to take regular breaks, to stretch and to complete postural exercises; that an opinion was expressed by Ms Morse that progressive improvement of pain levels and functional capacity is expected; and Mr Mitvalski had been made aware of all the issues contained within her assessment and he would manage the applicant as required.

31. On 27 July 2009 Ms Morse also completed a Return to Work Schedule (ST13, p 45-46).  That is the same date that the applicant presented with a certificate completed by Dr Roche which recorded that she was fit for normal duties.  Under the subheading of Suitable Duties, Ms Morse recorded that the applicant was to undertake full hours and duties, modified to the extent that she should request assistance from a supervisor or colleagues when she is required to undertake prolonged walking or activities which were considered to be outside her physical tolerance.  The applicant agreed that she told Ms Morse that she believed that a proposed orientation (walking) tour of the CBD sites would be within her physical capacity.  However, if the demands of walking became too great, she told Ms Morse that she would sit if needed (or practical) or would return to 414.  The applicant agreed that there was nothing in the schedule indicating that she would be unable to complete the mini register or the site information template tasks that had been assigned to her by Mr Mitvalski on 23 July 2009.

32. It would appear that the work schedule was also forwarded to Dr Roche.  She signed it on 29 July 2009 as the treating practitioner's endorsement (T53, p 201).  The applicant agreed that Dr Roche did not make any amendment to it.

33. On 18 August 2009 Ms Morse completed a Return to Work Programme (ST18, p 53-56).  The applicant agreed that under the subheading of Suitable Duties, it is recorded that she would be permitted to advise staff to return car park passes to her at her desk on the 16^th floor at 414 (which permitted her to avoid walking to the car park); that at her discretion, she could choose to walk to the car park to deliver or collect car park passes; when escorting or supervising contractors, she was permitted, when able, to remain seated; that she should use the elevators to travel between floors; that she should be given 24 hours-notice of attendances by contractors; that computer based work at 390 Latrobe Street will be undertaken by Mr Mitvalski; and ATO staff are to attend her desk to collect parcels and other delivered items.  The applicant agreed that those changes to her work should be regarded as modifications of her usual duties and a reaffirmation of the opportunities given to the applicant to request assistance. 

1. The applicant however, qualified some of her early responses and said that walking for more than 50 yards, would cause pain.  Nonetheless, it was within her physical capability to walk between 414 and the other officers in Latrobe and Queens Street, if necessary.

2. The applicant acknowledged that the employer had published a practice statement entitled Managing illness and injury in the workplace (ST30, p 87–92) in circumstances where employees have suffered illness or injury in non-compensable circumstances.  It records that:

   The ATO is committed to the health, safety and well-being of its employees and recognises that a safe and healthy workplace is an essential component in creating an environment in which people can effectively contribute to achieving community and business outcomes (p.88).

   It also records that:

   … the ATO is committed to taking all reasonable steps to provide a system that focuses on early intervention which supports and assists those employees (p. 88).

3. The applicant agreed that the practice statement records the corporate requirements, roles and responsibilities of section managers and team leaders; that appropriate accident and incident reporting is necessary and that investigations should be conducted in a timely manner. 

4. The applicant complained that her employer had not complied with its own policies or the guidelines published on the ATO intranet (Transcript, p 119).  She referred to the Checklist for managing ill and injured workers.  The checklist contains a number of dot points which require the ATO to treat employees fairly and reasonably; to establish procedures for dealing with injured workers; to comply with procedures and to record all meetings and decisions in writing (Exhibit A1).

5. The applicant said that meetings and decisions were not recorded in writing and the ATO did not treat:

   … injured people fairly, so don't give them work that other people can do – overloading you with work when there were staff members who were able – bodied and able to do it.  I don't believe I was treated fairly, and that was – that is in part of – in my complaint (Transcript, p 121-123).

   The on-call roster

6. The applicant said that her employer had a roster of persons who were scheduled to be on call after hours in the event of a breakdown of ATO facilities or in the case of emergencies (also known as Restriction Duty) (ST32, p 105-138).  She gave as an example the possibility of being called out from home late at night or early in the morning in the event that a security alarm was activated in an ATO facility or a door had not been shut properly or a computer malfunction.  The sites for which the applicant or others on the on-call roster would be responsible would be the three CBD sites, together with ATO offices at Moonee Ponds, WTC and at Casseldon Place in Lonsdale Street. 

7. The applicant said she had been on the waiting list for placement on to the on-call roster for some time before she fractured her toe.  She had been granted all appropriate security clearances.  She did not contend that it was unreasonable for the employer to defer placing her on the roster while she was working restricted duties.  Her complaint was that she was taken off the on-call roster (Transcript, p 26).

8. The applicant said that on or about 17 August 2009, she was approached by Mr Alderuccio, who was the acting regional property manager, following an e-mail that she had sent him requesting that he give her permission to work at the WTC.  Having denied her permission to be transferred to the WTC, she said he then told her that she would be taken off the on-call roster indefinitely.  The applicant said that she protested that other persons who had been unwell or away from the workplace were not taken off the roster but had their place on it preserved.  She said Mr Alderuccio had explained that the reason why she was taken off the roster was because she was not mentally fit enough to do it (Transcript, p 23-26).

9. There was extensive cross-examination of the applicant on the second day of the hearing about her application to be placed on the on-call waiting list; the allegation that Mr Alderuccio removed her from the roster indefinitely because she was mentally unfit; her contention that she continued to hold all appropriate security clearances (which suggested that she remained on the waiting list and eligible for placement on to the on‑call roster); and her concession, eventually, that she had never been placed on the on‑call roster (Transcript, p 123-141).

10. The issue concerning her placement on the on-call roster will be analysed later.  However, at this stage, it is sufficient to record that the applicant agreed in August 2009 that she was on a return to work plan; that she was not fit for full duties; that it would not have been appropriate, then, for her to have been placed on the on-call roster and that she had never been placed on the on-call roster.  She acknowledged that Mr Alderuccio would say in his evidence that he had decided – and had told her – that it was premature for her to be placed on the on-call roster because she was medically unfit but she was adamant that he had said that she was mentally unfit.  She denied that she had misheard him.  She also acknowledged that Mr Alderuccio would say in evidence (and did record in his statement – Exhibit R9) that he would review his decision not to place her on the on-call roster when she had achieved full work capacity and had returned to full-time hours.  However, the applicant did not pursue being placed on the on-call roster and said she didn't want to do it any more (Transcript, p 136).  

11. A meeting was held on 19 August 2009 between the applicant, Mr Mitvalski, Mr Alderuccio and Mr Mike Moore (a support person engaged by the applicant).  The notes of that meeting are appended to the statement of Mr Mitvalski and record that Mr Alderuccio explained that he had decided that the applicant would not be included on the on-call roster because of her medical condition and Mr Moore agreed that the ATO would be in conflict of her return to work program if it placed the applicant on the roster (Exhibit R8, Annexure MM9).

    Transfer to the World Trade Centre

12. During the meeting on 23 July 2009, the applicant was asked whether she would be interested in working in another BSL (Business Service Line) whilst recovering from the broken toe.  She said that she was not interested (Transcript, p 87).  In her written response to Mr Mitvalski, the applicant recorded No.  I am interested in transferring to WTC (T11, p 35). 

13. She said that site was comparatively small with one or two permanent staff officers.  She said that she would only be required to undertake minimal walking and most of her work could be undertaken seated, at a desk.  She said she requested the transfer for a few weeks only, for 3 days each week at WTC and 2 days per week at 414, until her fracture healed and her foot stabilised.  She said that another colleague, who worked at that site, had from time to time requested assistance from management and she thought she could make herself available to her.

14. The applicant relied on an Australian Public Service Policy concerning the movement of employees (CMPI 2009/01/04) which was annexed to her Statement of Facts and Contentions.  She said the content of the policy supported her application for a transfer to the WTC.  However, when the content of it was examined in evidence, the applicant agreed that it concerned the release of an employee from a substantive position to another that had been won on merit.  That is, the policy was not concerned with transfer or relocation whilst remaining at the same substantive position.  The applicant also agreed the policy was not concerned with persons seeking a temporary transfer.

15. The applicant said there was an obligation at paragraph 14 of the policy to give reasons in writing for a refusal to transfer.  Having been asked to read the policy, the applicant conceded that there was nothing in it which compelled the employer’s representative to provide written reasons.  Permission to transfer to the WTC was refused by Mr David Gorfine, the acting regional manager (Transcript, p 144-149).  

    Discussion with management on 10 August 2009

16. The respondent submitted at the commencement of the hearing that it understood the applicant alleged that matters discussed in a meeting on or about 10 August 2009 in the workplace contributed to her injury.  The applicant agreed that that meeting was one of a number of contributing events (Transcript, p 5 and 7).

17. When the applicant referred to that meeting in her evidence, it was clear that she did not contend that a meeting did occur on 10 August 2009 but rather, a meeting had occurred on a date she did not recall.  It was comments made in that meeting that contributed to her injury. 

18. The respondent understood that the applicant had alleged that she was singled out in a staff meeting on 10 August 2009 (Respondent Statement of Facts Contentions at paragraph 2.14).  The applicant referred to that paragraph in her evidence (Transcript, p 10-12) and referred also to a memorandum completed by Peter Dalton, who was then the acting regional manager of property operations for the ATO (T21, p 69).  In that memorandum, Mr Dalton referred to a meeting he had with the applicant on 11 October 2009 where he recorded that she felt she was singled out during a discussion about performance and that the meeting was aimed directly at her.  It was understood that the meeting referred to in the memorandum was a meeting convened by Mr Mitvalski on 10 August 2009 to which he referred in his statement (Exhibit R8, paragraph 30).  Following that meeting, Mr Mitvalski sent an e-mail to the applicant and four other persons who were also present, summarising the issues that were then discussed (Exhibit R8, annexure MM7).

19. The memorandum of Mr Dalton does not identify the meeting of 10 August 2009 as the occasion where the applicant contended that she was singled out.  She did not refer to it in her Statement of Evidence or her Statement of Facts and Contentions.  She did not refer to it in her reply to the respondent’s submissions.  When this contention was raised in cross-examination, the applicant said she was confused by this issue being included in the memorandum of Mr Dalton.  She said she did not have any recollection or evidence of a meeting on 10 August 2009 nor did she have any agenda or e-mail following it, which she said was usual practice.  The applicant said she had no recollection of being singled out at any meeting and did not believe it contributed in any way to her injury (Transcript, p 141-144).

20. Mr Mitvalski did refer to a meeting on or about 10 August 2009 in his statement and recorded:

    …It was obvious to me from Cheryl's demeanour that she was upset about the requirement to advise me if staff leave before 4 PM.  I understand that she felt that it was directed at her.  Cheryl was the main offender in this regard but at the meeting I did not single her out in any way.  I felt it was appropriate to cover this requirement with the other staff also.  It was my responsibility as manager to ensure that there was a help desk coverage through all sites during business hours (Exhibit R8, at paragraph 30).

    He also referred to the e-mail he sent to staff present at that meeting to ensure that there was no confusion on what was agreed as a team and so that I had a record of the meeting (Exhibit R8, paragraph 30 and annexure MM7). 

    Mark Mitvalski

21. Mr Mitvalski is the property operations manager of three ATO sites being 350 Queen Street, 390 and 414 Latrobe Street.  Those sites are known as the VMP (Victoria Market Precinct).  He adopted a statement prepared by him on 9 September 2011 (Exhibit R8) to which there were a number of attachments.

22. Mr Mitvalski said the duties and responsibilities of the applicant were to support the business lines and their needs and wants, and that is to provide support in the maintenance of the building (Transcript, p 166).  He said ATO staff, including the applicant, are not responsible for repairs or changing light globes (for example).  He said repairs and faults are the responsibility of United Group Services who were contacted when their services were required.  In cross-examination he said if alarms in a computer room were activated during the day or if someone was stuck in an elevator, either the building concierge or manager was notified or a job was logged to United Group Services.  Once a person was freed from an elevator, the first aid officer would be required to provide support. 

23. He said most of the applicant’s work could be undertaken from her desk at 414.  For example, the four week mini register which was discussed with the applicant at the meeting on 23 July 2009 required her to ensure that data entered by drivers into vehicle log books, when vehicles were returned, was correct.  The applicant was then required to enter that data into her computer.  If data had been entered incorrectly, the applicant would be obliged by a telephone call to contact the driver to correct the mistake.  Most of that work could be done from her work site at 414.

24. Mr Mitvalski agreed in cross-examination that the 4 week mini register also required an educative process where drivers of vehicles would learn the expectations of the ATO when recording data.  However, he said it was not necessary for the applicant to be present in the car parks when vehicles were returned.  If data had been entered incorrectly in the logbooks, the applicant could send an e-mail to the driver advising of the error and requesting that the correct information be provided.   

25. The information template project required the applicant to record information concerning the three VMP sites being addresses, telephone numbers, emergency contact details and the names of relevant persons.  There was an existing template and the expectation of the applicant was to ensure that it was current.  It was also expected that the applicant would not need to leave her desk at 414 to complete it.

26. He also said in cross-examination that it was not necessary for the applicant to attend various locations within the VMP region to place appropriate signage during the information template project.  If signage had to be placed, he said persons in those locations would do it.  In any event, he said that the information template project did not require signs to be erected.  Rather the responsibility was to ensure that existing information was correct or if it was not, to make appropriate amendments to the template.

27. Mr Mitvalski did recall the meeting with the applicant on 23 July 2009.  He said the applicant raised with him her need to be given assistance.  He recalled, for example, that she said she would be required to leave her desk and escort business line staff and contractors into and out of the car park.  He said that he had made arrangements for assistance to be provided, either by the applicant contacting him or other staff members located at 390 Latrobe Street.  He said it was his objective for staff to work within a team environment and to assist each other.  When assistance was needed by the applicant or by any other staff member, it would be provided. 

28. He said there was an occasion when he directed Lars Lindquist to be available to the applicant and there were three other persons identified by him who he was sure had also assisted the applicant after she returned to work (Transcript, p 165).  When he learnt that the applicant had said in evidence that she was not being assisted when required, he said that he had given the applicant his mobile telephone number, she was encouraged to contact him if needed and he would remind staff that they had been instructed to assist her when required.  He said he could not think of any responsibility that would require immediate attendance by the applicant, other than to log a job for an outside service provider but that would not require her to leave her desk.

29. Mr Mitvalski acknowledged an entry in a progress report completed by Ms Morse on 21 September 2009 that on 18 August 2009 he was attempting to arrange staff to be on site at the 414 Latrobe Street site each day to cover Ms Peters should she require assistance or when taking her scheduled breaks (T15, p 45).  He said at that date persons were available to assist the applicant.  However, he was responding to information he had received from her that she had been finding it difficult to take lunch breaks because persons were not available to assist her on those occasions.  It was his intention to ensure that persons were available to cover her during designated lunch breaks.

30. The witness was then taken to two pages of notes annexed to his statement identified as annexure MM9.  The notes were made by him and contain information concerning a meeting he convened on 19 August 2009 and attended by the applicant, Mr Alderuccio and Mr Moore, a support person designated by the applicant.

31. The on-call roster was apparently discussed at the meeting and a reference to it is found in MM9.  The first page of it relevantly records:

    ·     Discuss her not being on the on-call roster, Mike Moore made decision not to include in roster while she is on a RTW. 

    …

    ·     Mike M suggests it conflicts with Cheryl’s RTW. 

    The other page records:

    ·     Discuss on-call roster, Mike (rm) made decision not to include her on the on-call roster whilst she is on a RTW, Michael [Alderuccio] explained it was due to her medical condition. 

    ·     Mike Moore agreed that it would be a conflict of her RTW to include her in the on-call roster. 

    Mr Mitvalski said that any decision about whether the applicant would be placed on the on-call roster would not be made by him.  That was the responsibility of the regional manager, Mr Alderuccio.

32. In response to a question from me, (because the applicant did not raise the issue of the on-call roster in cross-examination), Mr Mitvalski said:

    … my memory of the discussion was that it was agreed with all parties that Ms Peters wouldn't go on the on-call roster, as she was on a graduated return to work, and therefore she wouldn't be able to be on on-call as such (Transcript, p 178).

33. I asked Mr Mitvalski to consider an entry in a document entitled Employer's Statement of Facts which was completed by him and Mr Dalton (T42, p 146‑149).  The document is not dated but it records that it was prepared in response to a letter from Comcare dated 25 January 2010.  He agreed that the document would have been completed after that date and would have been completed by reference to notes that he had which included a number of e-mails and MM9.  Relevantly the last paragraph records:

    Cheryl makes reference to not being included in the On-call roster.  This was raised at a meeting on 19/08/2009 (see Attachment 1).  As Cheryl had just returned from 3 days off (12/08/2009 – 14/08/2009) due to sore toe, Michael Alderuccio (A/g RM) advised it would be better off for her not to go on to the roster at that stage due to her medical condition.  Since this time Cheryl has not been back at work on a full-time basis except for one week period 17/08/2009 – 21/08/2009 (T42, p 147).

34. The applicant resumed her cross-examination of Mr Mitvalski following the evidence he gave concerning the on-call roster.  He reaffirmed that it was Mr Alderuccio’s decision whether to place the applicant on the on-call roster.  He said he was confident that there had been a prior discussion with the applicant about her placement on the on-call roster.  He could not recall when that discussion had occurred nor did he have any records with him which would assist his recollection.  Those questions were asked of the witness in response to a proposition being put to him by the applicant that it made no sense to her that there would be any discussion at the meeting on 19 August 2009 about being placed on the roster when she would have been prohibited from such a placement because she was on a graduated return to work programme.

1. In re-examination Mr Mitvalski said that the meeting would have been convened on 19 August 2009 to discuss how the applicant was coping:

   … and to see if there's anything more that we can do as managers, Michael and myself, to assist her with her Graduated Return to Work; to make sure that everything was what it should be (Transcript, p 185).

   He said the meeting was probably convened to discuss issues raised by the applicant in a document she prepared where she responded to the minutes of the meeting on 23 July 2009 prepared by Mr Mitvalski (T11, p 33-38 and Exhibit R5).  He said there were many issues raised by the applicant in that document that needed to be discussed with her and the meeting was not convened only in response to whether she could be placed on the on-call roster.

2. Although neither of the pages at MM9 refers to the applicant’s request to be transferred to the WTC, Mr Mitvalski said that he recalled that it was discussed.  He said such a transfer would have been the responsibility of the regional manager, alone.  He said he understood that there had been a discussion with Peter Dalton who was the site manager of the WTC and he understood that it had been decided that location was adequately staffed, there was no need to supply any other person and the request by the applicant to be transferred was declined. 

3. In response to a question from the applicant, Mr Mitvalski said that minutes were not taken of the meeting of 19 August 2009.  He said the pages identified as annexure MM9 to his statement were notes that he made following the meeting.

   Michael Alderuccio

4. Mr Alderuccio was the acting property operations regional manager between 27 July 2009 and 21 August 2009.  One of his responsibilities was to finalise the on-call roster.  He said that a number of persons had nominated to be placed on that roster and the selection criteria involved deciding whether persons had met all mandatory selection requirements (which are found in the Restriction Duty Procedures Manual at ST32 p 105).

5. Mr Alderuccio referred in evidence to Part 5 of the manual which refers to the suitability and selection method of persons for restriction (on-call) duty.  It records that the property operations regional manager, the position that he then held, in consultation with the site manager, Mr Mitvalski, had the responsibility to determine a staff member’s suitability to perform the on-call function.  He decided that by reason of the applicant being on a graduated return to work programme in August 2009, he had a duty of care to take and that she would not be placed on the roster and we would look at the situation when she becomes full-time (Transcript of 15 February 2012, p 5).  Later, in cross-examination, Mr Alderuccio said that he had made the decision not to place the applicant on the roster. He said the applicant was then on a return to work programme and he was satisfied that she wouldn’t be able to fulfil the full requirements of restriction officer and that we were going to review the situation once you became full-time again (Transcript, p 9).  Mr Alderuccio agreed that the applicant was otherwise eligible to be placed on the on‑call roster (Transcript, p 11).

6. Mr Alderuccio said that he told the applicant that she would not be placed on the roster during an informal discussion in passing on 17 August 2009 and again at the meeting on 19 August 2009 (Transcript, p 14).

7. Mr Alderuccio said that the two-page document marked as annexure MM9 to the statement of Mr Mitvalski was not completed by him.  He said that he was aware that the applicant had alleged that he had described her as being mentally unfit to be placed on the roster.  He denied ever using that expression on both 17 and 19 August 2009 or at all (Transcript, p 6).  He could not recall whether he would have used the expression medical condition but acknowledged that he possibly did because his decision denying the applicant a place on the on-call roster was based on her graduated return to work programme.  He said he certainly didn't use mental and when he was asked why he was so sure that that expression would not have been used he said:

   Because I know better.  I’m a regional manager.  I know which words not to use.  I knew that –how do l know?  It's something that you don't use in the workplace (Transcript, p 19). 

   Date of injury

8. The applicant said she attended Dr Roche on 27 July 2009 because she was:

   …extremely upset that [she] was not receiving any support, and not only that but that I was being given work to do for the other sites when I felt that they had enough staff down there to do their own work … (Transcript, p 22)

   She said that she had been given work to do for the other sites which requires a lot walking and, you know, I just couldn't do it, you know.  The applicant said that her foot was on track healing and stabilising because of the nature of the sort of extra work and stuff my foot was just a bit sore and swollen (Transcript, p 22). 

9. In cross-examination the applicant was taken to her compensation claim form where she recorded that she first noticed that she was ill and the first day that she sought treatment for that illness was on 14 September 2009 with Dr Roche (T20 p 56).  However, the clinical notes of Dr Roche did not record her attending for treatment between 4 and 21 September 2009.  The applicant agreed that in the absence of any entry in the clinical notes on 14 September 2009, she did not go to the clinic of Dr Roche on that day.  The applicant agreed that 14 September 2009 was not the date that she first noted the injury which is the subject of these proceedings (Transcript, p 32-37).

   Medical history

10. The applicant returned to work on Monday 20 July 2009.  On 23 July 2009 she met with Mr Mitvalski.  On 24 July 2009 she was absent from work because of illness but was unable to obtain an appointment with Dr Roche until 27 July 2009.  Dr Roche’s clinical note of that date records:

    …toe feeling better occurred 4/52 ago now wants to go back onto normal duties was not getting help at work anyway stressed out about that wants to go back onto normal duties and medical cert to say that.

11. Dr Roche provided a medical certificate on 27 July 2009 which recorded that the applicant was fit for normal duties (T9 p 25).  It also recorded that the applicant consulted with her on that day and gave a history of being unwell for work on 24/7/09.

12. It would appear that the applicant returned to the workplace on 27 July 2009 because on that day she was assessed by Ms Morse from Work Solutions.  In her report, Ms Morse recorded that the applicant was not taking pain relieving medication, however pain was aggravated by walking and pressure from her footwear but it settled within 15 minutes (T10).  It also records that the applicant said that:

    … she was not receiving support for modified duties.  As such, Ms Peters requested a clearance to undertake her pre-injury duties.  Dr Roche reported that it was not unreasonable to request a return to full duties at that stage and so provided with (sic) Ms Peters with a full clearance.  Work Solutions discussed the proposed return to work schedule and Ms Peters reluctance to request assistance due to previous issues between staff.  Dr Roche supported the proposal of 2 weeks of modified duties before a planned return to her full pre-injury duties (T10, p 27).

    Ms Morse recorded that no further intervention was planned and she noted that the applicant had returned on 27 July 2009 with a certificate from Dr Roche which recorded that she was fit for normal duties.

13. In a report of 15 January 2010, Dr Roche referred to her consultation with the applicant on 27 July 2009.  She recorded that the applicant had said that her foot was improving and requested to be:

    … issued with a certificate as fit for normal duties, as she had never received the assistance she required to perform light duties only.  She related that she had been extremely stressed by this current situation, the refusal of other staff members to assist her so that she could perform light duties only, and appeared visibly anxious also by this (T36, p 126).

14. Dr Roach concluded that whilst a further two weeks of light duties:

    … would have been medically advantageous for healing of the injury, as she had not been facilitated to perform light duties in the workplace anyway, and due to the degree of anxiety that this was causing her, a medical certificate was issued to state that she was fit for normal duties as she had requested (T36, p 126).

15. In evidence the applicant said that shortly after returning to work on 20 July 2009, she did experience stress because of her fractured toe.  She agreed that she did not suffer immediate incapacity, or need then to have any medical treatment for her foot.  She said that she initially coped with her foot pain but later she was not managing and it was for that reason she consulted with her doctor.  She agreed that she told persons in the workplace that she was not managing because of her fractured toe.  The applicant also agreed that despite experiencing stress, she continued to be able to work full-time (Transcript, p 40 – 41).

16. The applicant frequently said that she was not given assistance in the workplace after she returned on 20 July 2009.  However, on 13 July 2009, the week before she returned to work, the applicant was issued with a certificate by a doctor at the Sandridge Medical Centre (where Dr Roche also practices), who certified her as fit to resume suitable work on 20 July 2009.  Dr Roche in her certificate of 27 July 2009 recorded that the applicant was fit for normal duties.  The applicant agreed that there were no declarations by her doctors giving any indication that she was in need of any assistance (Transcript, p 49 and 51).

17. On 12 August 2009 the applicant returned to see Dr Roche.  In a clinical note she recorded:

    …V stressed 2/52 ago re-work was meant to help her re # toe- but didn't- more stress now b/c  RTW plan put into writing (see copy) didn't happen either- discussion- med cert 12/8/09 – 14/08/09 is thinking of moving departments (Exhibit R2).

18. In the two weeks between 27 July 2009 and 12 August 2009 the applicant was not absent from work. 

19. In a diary maintained by the applicant, she recorded against 12 August 2009 went back to Doctor.  Foot sore and still no help, she suggested I take the rest of the week off (T61, p 239).

20. In another report completed by Ms Morse on 21 September 2009, she recorded that the applicant:

    …attempted a return to work (undertaking full hours, modified duties); however she was unable to maintain a return to work due to increased toe pain, and Ms Peters was off work from 12-14 August 2009.  Ms Peters stated that she felt as though she was not receiving assistance with her return to work and that she was annoyed that she needed to undertake work for other sites.  Ms Peters was advised to discuss these concerns with her team leader, Mr Mitvalski which she later did (T15, p 45).

21. The applicant agreed that she did tell Ms Morse that she was off work between 12 and 14  August 2009 because of increased pain (Transcript, p 48).  She did not tell her that she was experiencing stress and anxiety or that it was those injuries which caused incapacity between 12 and 14 August 2009.  Rather she decided to notify Ms Morse of her foot symptoms because she was a physiotherapist (Transcript, p 51).

22. In her report dated 15 January 2010, Dr Roche recorded that the applicant attended her on 12 August 2009.  She obtained a history of the applicant then being:

    … extremely stressed, as a Return to Work Plan that had been instituted by ‘Work Solutions’ for the following dates 27/7/2009-09/8/2009, and which stated modified duties including requests for “assistance from supervisor or colleagues for tasks which involve prolonged walking and are considered to be outside Ms Peters current physical tolerance”, was again not adhered to.  Due to the stress and subsequent anxiety symptoms that Ms Peters was experiencing, a certificate to be off work from 12/08/2009-14/08/2009 was issued (T36, p 127).

23. On 24 August 2009 the applicant returned to Dr Roche.  In her clinical notes of that date, she recorded:

    …still problems with management stressed re-work meant to go back with assistance/light duties/assistance never happened.  Now due to go on to on-call duties which (illegible) waiting for months – told – to go back gradually every 2nd day on full duties as will not get any assistance despite what is written in return to work plan going to take her off it.  Toe still a little sore.  Long discussion med cert 24/8/09 – 7/9/09 (Exhibit R2). 

    These comments were reaffirmed in the report of Dr Roche dated 15 January 2010, except she recorded that the applicant’s problems at work were escalating (T36, p 127).

24. The applicant disagreed with a proposition put her in cross-examination that in comparison to the earlier entries of Dr Roche, it would appear that the entry of 24 August 2009 pointed to her no longer coping at work (Transcript, p 43-44).  However, the applicant did agree that having been taken off the on-call roster did contribute to the escalation of her problems, together with the effect upon her of a discussion that she had with Mr Alderuccio on 17 August 2009.  When again pressed on this issue, the applicant said that it was a combination of those events and the fracture of her toe that contributed to an escalation in the symptoms of stress and anxiety (Transcript, p 51-52).

25. By 4 September 2009 the applicant, not having worked since 24 August 2009, had apparently enjoyed improvement in the level of discomfort in her foot because Dr Roche recorded in her clinical notes that foot feeling better but still tender has rested last 2/52.  However, she also recorded that the applicant was:

    … still shaky and angry emotionally re work did not provide assistance for her when went back (illegible) duties even though in writing said they were (illegible) angry then told her she was not fit emotionally to go on to on-call duties and would need to be assessed feeling bullied and harassed has had meeting with workplace harassment person will go back on modified hours 4 hours every morning next 2/52 and R/V cert 7/9 /09 – 18/9/09 (Exhibit R2).

26. In her report with respect to that consultation, Dr Roche recorded that the applicant had been regarded by management as “not mentally fit” to participate in on-call duties… (T36, p 127).

27. The applicant agreed in cross-examination that the symptoms recorded by Dr Roche were exacerbated by her perception that she was not receiving assistance in the workplace and the conversation she had with management about the on-call duties.  The applicant agreed that she remained on the on-call waiting list until October 2010 when she last worked.  She also agreed that she was never taken off the on-call roster because she had never been on it (Transcript, p 52-53). 

28. The applicant was referred to the contents of reports from a number of medico-legal practitioners who were engaged by both the respondent and a practitioner to whom the applicant was referred by Dr Roche.  It was apparent from the contents of the reports and the applicant’s responses to questions of her in cross-examination that she either gave inaccurate histories or the practitioners misunderstood her.

29. On 4 February 2010 the applicant attended an examination with Dr Jeffrey Swift, a consultant psychiatrist, at the request of the respondent.  In his report of 17 February 2010, he recorded that the applicant returned to work after a two week absence because of a fractured toe on limited duties with assistance related to decreased mobility… (T43, p 150).  The applicant agreed that this history was wrong.  She agreed that Dr Swift’s history that she had been taken off the on-call roster was also wrong (Transcript, p 54).  Dr Swift recorded that the applicant had first suffered from clinically identifiable symptoms of a psychological condition from the occasion when she met with her manager in August 2009 (although he did record that it was his opinion that it was probable that some anxiety symptoms were emerging prior to that occasion).  He also recorded that the applicant perceived that her recovery was not being taken seriously by the management… (T43, p 155). 

30. The applicant said that in her opinion, her symptoms commenced from the occasion she saw Dr Roche on 27 July 2009.  She was asked to consider that she had recorded in her compensation claim form that she dated the onset of those symptoms from the meeting with Mr Mitvalski on 23 July 2009.  She then said the initial meeting on 23.7.2009… is what caused (her) illness.  She agreed that her symptoms were exacerbated after the meeting in August 2009 as Dr Roche had reported and said from that occasion her symptoms were getting worse (Transcript, p 55-56).

31. The applicant was referred for treatment to Dr Ian Katz, a consultant psychiatrist, from Dr Goldberg, a colleague of Dr Roche.  In a report of 15 April 2010 (Exhibit R3), Dr Katz recorded that the applicant was off work for two weeks following the fractured toe and when she returned to work on part-time hours she was given no assistance.  He also reported that the applicant was expected to travel between various facilities whilst in significant pain when the fracture was not healing.  The applicant agreed that history was not accurate.  However, she said the reference by Dr Katz to significant pain was not inconsistent with the clinical entry by Dr Roche in her notes of 27 July 2009 of her toe feeling better.  The applicant denied that she had exaggerated her symptoms to Dr Katz.

32. The applicant said that the history taken by Dr Katz of her being prevented by her manager from working the lucrative after hours on-call roster which she had already been selected for was a reference to Mr Alderuccio (Transcript, p 57-58).  The applicant said she did give a history to Dr Katz, as he recorded, that her inability to secure a transfer to the World Trade Centre site was part of the reason of (her) psychological symptoms (Transcript p 57-58).

33. On 27 July 2010 the applicant attended a medico-legal examination with Dr  Pauline Miller, a consultant psychiatrist engaged by the respondent.  In a report of the same date (T50, p 175), Dr Miller recorded that the applicant returned to work after her toe fracture on modified duties and she felt unsupported; she was required to audit fleet cars for all ATO sites and she was walking all day in the course of that work and had found it difficult.  The applicant agreed that the fleet car audit did not commence until 3 August 2009 but she had been undertaking preparation for it.  She also agreed that she was not walking all day between the three ATO sites.

34. Dr Miller also recorded that the applicant had told her that she did finally achieve being put on the roster but she felt there was discrimination against people who were lower down in the level…  Without admitting that she was not on the roster, the applicant said she had been accepted and set up for it.

35. Dr Miller reported that the applicant wrote a letter of complaint to her manager which was the cause of the meeting on 19 August 2009.  She recorded that it was on that occasion that she was told she would not be put on the on-call roster because she was not mentally fit.  The applicant said that as a result of that comment, she was angry and upset and she consulted with her doctor who issued a certificate of incapacity for two weeks (Transcript, p 59-62).

36. Dr Katz provided another report at the request of the respondent’s solicitors on 2 July 2011 (Exhibit R4).  He reported that the applicant had told him that she was prevented from relocating to the WTC, her supervisors did not follow the correct procedure and she had been told that she could not move sites because of operational reasons.  The applicant agreed that she had said that to Dr Katz (Transcript, p 66).  Dr Katz also recorded in his report that the applicant had sought relocation and she had told him she was not specifically after a transfer.  He reported that the applicant was distressed because she had been prevented from going onto the lucrative after hours roster because she had been judged to be psychologically unfit.  It was his opinion that the applicant suffered from a major depressive disorder which is coming to remission with counselling support and the provision of anti-depressant medication (Exhibit R4 at paragraph 3.1).

    Conclusions and Reasons

1. The applicant has sought review of a decision made by the respondent to deny liability for an injury it admitted arose out of or in the course of the employment. However, the respondent contended that the injury was the result of reasonable administrative action taken in a reasonable manner in respect of the applicant's employment. Consequently, it is an injury, if the respondent’s contentions are accepted, which is excluded by the provisions of the SRC Act.

2. The injury suffered by the applicant occurred after she returned to work on 20 July 2009 having been absent for the previous three weeks.  During that time the applicant was recovering from a fracture of her fifth right toe which was sustained at home in non‑compensable circumstances.

3. The review requires an examination of four principal issues which both parties agreed gave rise to the injury namely, the management of the applicant’s return to work following the injury at home; a decision not to place her the on-call roster; the consequences of a discussion with management on 10 August 2009 and a refusal by the employer to temporarily transfer her to the WTC.

4. The respondent raised an issue at the commencement of the hearing concerning the deemed date of injury.  I was not then satisfied that it would be a significant issue in this review.  Having heard and observed the applicant and the respondent’s witnesses, having reviewed the transcript of 3 days of evidence and the large volume of documents which were exhibited, I am remain satisfied that it is not a significant issue.  For reasons which follow, I am also satisfied that the decision under review should be affirmed.  I am satisfied that the injury suffered by the applicant was the result of reasonable administrative action taken in a reasonable manner in respect of her employment.

5. The applicant contended that the management of her return to work contributed to her injury.  That contention has many elements.

6. Initially the applicant met with Mr Mitvalski on 23 July 2009, being four days after she returned to the workplace.  Having read the minutes of the meeting held on that day (T8) and having also read his statement and heard him in evidence, I am satisfied that meeting, called by him, was entirely appropriate.  The minutes clearly indicate that an issue for Mr Mitvalski was the capacity of the applicant to undertake her pre-injury duties and his intention to ensure that she could comfortably work.  This is evident by three references in the minutes to him offering assistance to the applicant in the completion of her work and an enquiry whether she would be interested in working in another business line. 

7. Those offers, which I consider to be reasonable and focussed on the applicant’s welfare, were made despite the applicant having returned to work with a certificate, on 20 July 2009, indicating that she was fit for suitable duties.  The meeting and the offers then made to the applicant are consistent with the ATO’s practice statement Managing illness and injury in the workplace.

8. The applicant did not work on the day after that meeting.  Three days later, (a weekend intervened), she attended the workplace with a medical certificate indicating that she was fit for normal duties.  The applicant agreed that it could not be discerned from that certificate (or the certificate of 20 July 2009) that she was in need of any assistance.  Despite the contents of both medical certificates, arrangements were made for the applicant to be assessed by Ms Morse, a rehabilitation provider.  Ms Morse contacted Dr Roche and between them, it was agreed that the applicant should undertake modified duties.  Mr Mitvalski, on behalf the employer, agreed with that suggestion.  Arrangements were also made to modify the applicant’s work station, including the provision of ergonomic furniture.

9. The applicant was asked initially to undertake work which would have permitted her to remain seated at her desk at 414.  That is to say, the extent of walking that she would have otherwise undertaken, was, if not eliminated, considerably reduced.  The mini‑register project and updating of the office template was work, on the evidence heard and the description of it, capable of being undertaken in a seated position with information being obtained or provided either by e-mail or by telephone.  There was evidence of occasions where the applicant was given assistance; indeed persons were rostered to work with her.  I doubt the applicant’s assertions that she was in need of assistance to complete her work, largely because of the modifications made to her job by Mr Mitvalski and the evidence of Mr Lindquist who, having been seconded to assist the applicant, wrote an e-mail to Mr Mitvalski complaining that his time was wasted and his work was unable to be completed because he had remained with the applicant at her desk and had virtually nothing to do.

10. The applicant asserted that she had requested that she be transferred to the WTC because it would assist the recovery of her fractured toe.  Her request had been declined.  Mr Mitvalski indicated that any transfer to that location was not within his authority.

11. On balance, I am satisfied that the management of the applicant’s return to the workplace had its focus on her being comfortably able to undertake duties which had been modified and which were in recognition of her complaints of pain associated with walking.  The employer sought to minimise the applicant’s discomfort despite the medical certificates of 20 and 27 July 2009 which certified her as fit to return to work. 

12. It follows that the conduct of Mr Mitvalski on behalf of the employer could be properly described as reasonable administrative action which was taken by him in a reasonable manner in respect of the applicant's employment.

13. The applicant contended that the decision made by an officer of the ATO not to place her on the on-call roster also contributed to her injury.

14. There was inconsistency in the applicant’s evidence and it was unclear whether she was contending that she was not placed on the on-call roster or whether she had been taken off the roster.  The histories that she gave the doctors indicate that she was taken off the on-call roster (refer clinical notes of Dr Roche; report of Dr Swift dated 4 February 2010 and reports of Dr Katz dated 15 April 2010 and 2 July 2011).

15. In evidence the applicant said that on 17 August 2009, Mr Alderuccio told her that she would be taken off the on-call roster indefinitely.  She said that she then protested to him that other persons who had been unwell had not been taken off the roster and had their place on it preserved.

16. When this issue was the subject of cross-examination on the second day of the hearing, the applicant agreed that she had never been placed on the on-call roster.  She agreed that in August 2009 she remained subject to a return to work plan and she was not fit for full duties.  She also agreed that it would not then have been appropriate for her to be placed on the on-call roster. 

17. On reflection, it seems to me that the greatest concern to the applicant arising out of the discussions she had with Mr Alderuccio on 17 August 2009 and with him, Mr Mitvalski and Mr Moore on 19 August 2009 was her belief that she would not then be placed on the roster because she was not mentally fit to undertake that work.

18. Having read Mr Mitvalsky’s notes of the meeting held on 19 August 2009 and having also read the statement of Mr Alderuccio and observed him in evidence, I am satisfied that he did not say to the applicant on 17 August 2009 or on 19 August 2009 that she was mentally unfit.  I am satisfied that he said she was medically unfit.

19. Mr Alderuccio is a senior officer with the ATO and in August 2009 he held an acting management position.  He said that he could not recall using the expression medically unfit but he was sure that he would not have used the expression mentally unfit.  I accept his evidence.  Although the applicant remained adamant that the word mentally was used, it does have a very similar sound to the word medically.  It is not inconceivable that the applicant misheard what Mr Alderuccio had actually said.

20. Despite the degree of upset the applicant felt by her belief that she was told she was mentally unfit, she did not inform Dr Roche of that comment in the first consultation after 19 August 2009, being 24 August 2009.  At a consultation on 4 September 2009, Dr Roche recorded …they told her she was not fit emotionally to go onto ‘on call’ duties (Exhibit R2).In her report of 15 January 2010, Dr Roche referred to her consultation on 4 September where the applicant recalled she was regarded by management as not being mentally fit (T36, p 127).  I cannot reconcile why the word mentally was not recorded in the clinical entry on 4 September 2009 but was written in the report five months later.

21. Being a member of the on-call roster could require a person to be called out after hours to attend at one of the ATO worksites.  It would require considerable walking to locate the purpose of the call.  The rostered person would need to have full physical capacity to undertake that work.  In August 2009 the applicant did not have that capacity.

22. In concluding this part, I am satisfied that it was appropriate for Mr Alderuccio to decide that by reason of the applicant not having gained full capacity, it would have been premature to place her on the on-call roster.  I am also satisfied that it was appropriate for him to indicate to the applicant that her placement on the roster would be reviewed when she had gained full capacity and had returned to full-time hours.

23. I am satisfied that the decision made by Mr Alderuccio to deny the applicant placement on the on-call roster because of her reduced capacity, was a decision which constituted reasonable administrative action and it was a decision which was taken in a reasonable manner in respect of her employment.

24. The applicant also contended that the refusal by officers of the ATO to permit her to transfer to the WTC contributed to her injury.  She contended that it was a smaller office closer to her home which would have exposed her to less walking and less work and therefore, conducive to her recovery.  She insisted that she should be permitted to work at that location for three days per week for a few weeks.

25. The applicant had pursued her case for a transfer to the WTC also on the basis of her interpretation of an Australian Public Service Policy relating to transfers of public servants.  She agreed in cross-examination that when the contents of that policy were examined, it had no application to a temporary transfer, which she had sought.

26. She also contended that the policy provided that written reasons for a refusal to transfer should be provided.  Again in cross-examination, upon examination of the policy, she agreed that there was no requirement for the employer to provide written reasons.  The reason given for refusing the applicant a temporary transfer to the WTC was the absence of any operational requirement.

27. Although the applicant considered that working on a temporary basis at the WTC would be sedentary and would hasten her recovery, I am satisfied from the evidence of Mr Mitvalski that the work he assigned to the applicant at 414 was of a relatively sedentary nature, most of it could be undertaken in a seated position and the majority of it could be undertaken at her desk.  In the event that the applicant was transferred to the WTC, she would need to be replaced at 414 which in my view, based on the evidence, could not be justified. 

28. I do not consider that there was any operational requirement or justification to permit the applicant to transfer, especially because she had returned to work with a certificate indicating that she was fit for suitable duties and one week later, she presented with a certificate indicating that she was fit for normal duties.  Despite the intervention of a rehabilitation officer, it was agreed that she would work at 414 performing modified duties. 

29. For all of the above reasons, I am satisfied that relevant officers of the ATO did exercise reasonable administrative action in a reasonable manner by deciding that the applicant should not be permitted to temporarily transfer to the WTC.

30. The last issue of concern to the applicant involved a discussion on 10 August 2009 with management.  In evidence, it emerged that the relevance of that meeting was that the applicant perceived that she had been singled out about her performance.

31. In his statement, Mr Mitvalski identified a meeting on 10 August 2009 (Exhibit R8).  He understood that comments he then made were interpreted by the applicant as directed at her but he did not single her out in any way.

32. In evidence, the applicant said she could not remember a meeting on 10 August 2009 or being singled out at any meeting.  She did not refer to it in her diary (T61), her Statement of Facts and Contentions, her reply to the minutes of the meeting of 23 July 2009 (T11, p 33-38) or in her submissions in reply to the respondent’s closing submissions.

33. The applicant agreed in evidence that there was no contribution to her injury by any meeting in which she participated and where she believed she had been singled out.  That concession is properly made.  If she had no recollection of being singled out at that or any other meeting, she could not reasonably contend that there had been any contribution to her injury.

34. In conclusion, if not apparent from the above, I am satisfied that the injury suffered by the applicant did result from reasonable administrative action, which I am also satisfied was taken in a reasonable manner in respect of the applicants employment.

35. It was very notable from this review that the applicant had given histories to her doctors and to the medico-legal practitioners which were factually incorrect.  When challenged during cross-examination, the applicant conceded that many of her allegations were without merit.  For example, the applicant advised Dr Roche that she was not provided with assistance in the workplace.  Yet the evidence before this Tribunal confirms that it was provided and was available to her if needed.  The report of Dr Miller records that the applicant felt that she was unsupported and discriminated.  Dr Swift recorded that the applicant felt that her recovery was not taken seriously.

36. The evidence before the Tribunal suggests that there were interpersonal issues in the workplace which affected the applicant's judgement and recall.  For example, Ms Morse in her report at T10 recorded that the applicant was not receiving support for modified duties, and the applicant was reluctant to request assistance due to previous issues between staff.  Dr Roche reported on 15 January 2010 that during her consultation on 27 July 2009, the applicant had given her a history of other staff members refusing to assist her.

37. The evidence also leads me to conclude that the applicant was prone to exaggeration of her work duties post 23 July 2009.  For example, there were many references in the written materials of the applicant having to walk between sites all day long and that escorting contractors aggravated her foot pain if she had to do it all day long on her own.  Having read documents prepared by applicant, I note that there are several references which suggest that the applicant had a sense of gender discrimination.  She frequently refers to the boys (T4, T11, p 34 and T61, p 239) and to the struggle for her and her female colleague … to do on-call (T4 and T11, p 34).  Whether real or perceived, the applicant felt that male employees were treated more favourably when applying for placement on the on-call roster.

38. While I do have concerns about the veracity of the applicant’s evidence, I accept that she suffered the injury which was contributed to, to a significant degree by her employment with the ATO.  Specifically, the injury resulted from the perceived mismanagement of her return to work following her toe fracture, the decision not to place her on an on-call roster and refusing her request for a transfer to the WTC. 

39. The decisions made by relevant ATO officers, acting within the scope and authority of their employment are captured by s 5A of the SRC Act if those decisions affected an individual employee, in this case, the applicant.

40. The relevant conduct of those officers (which gave rise to the applicant’s complaints) and the relationship between them and the applicant in respect of her employment falls squarely within the analysis of s 5A in the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve and Another (2012) 125 ALD 181. Gray J decided at [33]:

    In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making a claim, in his or her capacity as employee, and the employer in its capacity as employer… As the tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury,” unless the action taken was not reasonable, or was not unreasonably taken (followed also in National Australia Bank Ltd v KRDV [2012] FCA 543 at [35] and Buck and Comcare [2012] AATA 327 at [45]).

41. I am not satisfied that the applicant’s return to work was mismanaged.  In fact, ATO management attempted to modify her duties to minimise any discomfort to her, despite medical certification that she was fit to return to work.  The intention of the relevant ATO managers was to ensure the applicant could comfortably work pending resolution of her toe injury.  Management, reasonably in my view, decided to defer placing her on the on-call roster until she was fit for unrestricted duties.  In the absence of any operational justification, it was also reasonable to deny her temporary relocation to the WTC.

42. The decision to deny the applicant the benefit of placement on the on-call roster and to deny her the transfer to the WTC are within the ambit of reasonable administrative action under s 5A(2)(f) of the SRC Act. Those actions were not unreasonably taken in respect of the applicant’s employment (Reeve at [33]). Therefore, the injury, suffered as a consequence, is excluded by the provisions of s 5A and the applicant is not entitled to compensation under the SRC Act.

    Decision

43. The decision under review is affirmed.  

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

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

Associate

Dated 21 September 2012

Date(s) of hearing	13-15 February 2012
Date final submissions received	23 May 2012
Applicant	In person
Counsel for the Respondent	Ms C. Dowsett
Advocate for the Respondent	Ms K. Latta
Solicitors for the Respondent	Sparke Helmore