Christine Long and Comcare

Case [2014] AATA 975

[2014] AATA 975  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/1901, 2013/3169

Re

Christine Long

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

A G Melick AO  SC (Deputy President)
Date 19 December 2014
Place Hobart

For the reasons set out in the terms of the oral decision of 19 December 2014, attached hereto I make the follow orders:

I affirm the reviewable decision made on 5 March 2010 in relation to psychiatric injury, and I affirm the reviewable decision made on 17 May 2013 in relation to bursitis injury.

…………………………………………..

(Deputy President)

BACKGROUND

  1. This is an application by Ms Long to set aside reviewable decisions made on 5 March 2010 in relation to what I will describe as the psychiatric injury and also review of a decision made on 17 May 2013 in relation to what I will describe as the bursitis injury. 

  2. The applicant was employed with Medicare Australia since 13 August 1984 until she left work in 2009 and finally retired in 2013.  She made a workers’ compensation claim for a bursitis injury to her right shoulder and for right neck strain, which I refer to as the bursitis injury, in February 2005.  That claim was accepted.

  3. The claim was resolved and as part of her return to work program following that injury, she was asked by Medicare to work for their Organ Donation Registry, and commenced with that division of Medicare Australia in about 2006.  She in fact moved from an office in Rosny to the Organ Donor Registry in Victoria Street in Hobart.

  4. During 2008, several things happened in the applicant’s life which I will hereafter refer to as the 2008 issues.  Her father became ill and died.  Her future daughter-in-law or future partner of her son was badly injured in a car crash on the day of, and just before, her wedding. She was having problems with behavioural issues with her son and he in fact had a restraint order taken out against him by a third party.  She had an operation following on from discovering a lump in her throat, which caused her some anxiety as she heard it may be cancerous and she was continually contacted by her mentally ill sister.

  5. On 4 June 2009, the applicant suffered a further injury at work in the nature of anxiety and depression and made a further claim for worker’s compensation, dated 11 June 2009, which I have called the claim for psychiatric injury.  This claim coincided with a claim for a further period of incapacity as a result of the bursitis injury.

  6. At various times, the respondent disputed both claims and on 5 March 2010, the first determination in relation to the psychiatric injury was confirmed on review and, on 16 January 2013, a determination was made that she was not entitled to compensation for the incapacity due to the bursitis injury, and that determination was affirmed on 17 May 2013.

    ISSUES

  7. The issues for the Tribunal are:

    (1)What ailment or ailments, if any, did the applicant…

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AGLC
Christine Long and Comcare [2014] AATA 975
Case
[2014] AATA 975
Decision Date

CaseChat Overview and Summary

Christine Long and Comcare involved a dispute regarding the administrative actions taken by the employer against the employee, Christine Long, following a workplace injury. The case was heard by the Federal Circuit Court of Australia. The primary legal issues revolved around whether the administrative actions taken by Comcare, the employer, constituted reasonable administrative action under the applicable legislation. This included assessing the reasonableness of the Quality Control and Quality Assurance procedures and their application to Ms Long's case.

The court considered the statutory provisions regarding reasonable administrative actions, which included reasonable appraisals, counselling, suspension, and disciplinary actions, as well as any actions related to employment benefits. It was crucial to determine whether the Quality Control and Quality Assurance procedures, as well as the feedback and performance improvement processes, were reasonable and appropriate in the context of Ms Long's employment and the specific circumstances of her injury and return to work.

The court examined the evidence provided, including statements from Ms Long's colleagues and supervisors, to understand the nature and purpose of the Quality Control and Quality Assurance processes. The court found that these processes were reasonable and necessary to ensure accuracy and compliance with processing standards, particularly given the critical nature of the work related to organ donor registries. The court also considered Ms Long's reaction to feedback and the measures taken to assist her in meeting the required standards, including the provision of additional information and alternative feedback methods.

Ultimately, the court concluded that the administrative actions taken by Comcare were reasonable and within the scope of permissible actions under the legislation. The Quality Control and Quality Assurance procedures, as well as the feedback and performance improvement processes, were deemed appropriate and necessary to address Ms Long's performance issues and ensure the accuracy of her work. The court's decision upheld the employer's actions as reasonable administrative actions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I also note the provisions of subsection 5A(2), which says:“For the purpose of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:(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.”THE EVIDENCE On 3 April 2006, Ms Long moved from Rosny to the Victoria Street office in Hobart, to work with the Organ Donor Registry. She initially started on restricted hours. In December 2006, she returned to full pre-injury hours. In 2007, she was subjected to a Quality Control procedure, which resulted in a further action being taken by way of Quality Assurance, hereafter either referred to in full or as QC or QA. Now, to understand this, I go to exhibit 26, which is a statement of one of Ms Long’s co-workers and, from time to time, one of her supervisors, and I refer to paragraphs 2 to 4, where she says: “2.In Medicare, there are two quality checking procedures. One is known as Quality Assurance (QA) and the other is Quality Control (QC). QC is generally performed the next day on a random selection of work for each employee. Three pieces of work would be selected daily for each processed batch and the results were reported to the National Audit Integrity Team. Note: QC is a National Audit Integrity operational requirement and is performed on all staff that have been deemed competent.3.QA is not reported. QA is undertaken when a new employee commences. QA would continue until the employee becomes competent. Note: If QA is being performed on a staff member they are not also QC’d.4.At various times random checks (informal checks) on accuracy levels were carried out on all staff to ensure that the team was meeting the required accuracy of processing standards. A date would be selected for a staff member and the processed work checked. If there were a number of errors identified, another date would be selected and checked. If a pattern of errors continue to be identified, the person would be taken off the formal daily QC process and QA would be performed on all transaction until they had reached the standard required.” In 2008, the 2008 issues I already referred to occurred. And then, at exhibit 26, there are further descriptions given as to what actions were undertaken and the reaction of Ms Long. The person who I will just refer to as A, said: “5.As acting Team Coach, my practice was to ensure QA was performed on each staff member once per month (where time permitted). This process was undertaken because if errors were made it could result in a life saving opportunity lost. Once transactions had been checked feedback was provided orally to the staff member on the work selected. This was generally done at the staff member’s desk. When I have conducted a QA process in relation to Chris, I would go to her desk and provide her with the feedback. I would show her the errors recorded, explain the errors and if she did not understand and/or questioned the error, I would provide her with additional information. This included providing her with notes or to show Chris where the business rules could be located. Only occasionally did Chris question errors that I pointed out to her. I did identify from Chris’s body language that she was edgy and did not appreciate receiving feedback, therefore I was very careful in providing the feedback and ensured it was provided quietly. Chris would occasionally huff and say “what have I done this time”. Chris was defensive and appeared to become more defensive when there appeared to be issued outside work. If Chris was uncomfortable with feedback being provided at her desk it could, at any time have been provided to her in a separate room. Regarding the checking of work and feedback, Chris was not treated any differently from any other staff member.6.The accuracy of processing level to be reached was 97%. On some occasions Chris’s accuracy of processing was down to 45% or 55%. There were occasions where errors were not recorded and a reminder would be noted (which meant the error would not be included in the percentage calculation). This process was to assist Chris and was treated as a positive. All attempts were made to assist Chris to ensure that she did not have to be placed under the Performance Improvement process. To my knowledge Chris was not placed in Performance Improvement.7.It was important to reach the accuracy of processing standards for a number of reasons. They include:7.1 If the data is recorded incorrectly it can mean that someone could potentially miss out on a life saving opportunity of receiving a donated organ;7.2if a staff member is making mistakes the organisation has a duty to assist them to reach the required standard;7.3if a staff member does not reach the standard required it can result in being placed in the Performance Improvement Program. Part of the process is to agree on strategies to assist the staff member. Strategies used would depend on the individual situation. If following a performance improvement process the staff member had still not reached the required standard, an extension may be offered. If after the agreed weeks the staff member had still not reached to required/aged standard then a Performance Inefficiency process is the next step. One outcome of the Performance Inefficiency process may be termination of employment.8.When Chris first started in the Organ Donor Register I QA’d her work. She did not display any negative body language when she first commenced. At that stage I was sitting opposite Chris. Her negative body language started when a close colleague was undergoing a Performance Improvement Process (PIP) and Chris appeared to be nervous because she was being QA’d at that time. There were also other staff in the area that were being addressed over certain issues which I believe Chris was also aware of.9.I first became aware that Chris was not happy with feedback being provided by J when E, as the acting Team Coach, called a meeting with Chris and requested that I attend to explain business rules in relation to error that had been identified, as Chris had questioned J’s QA work. At that time it became apparent that Chris did not want feedback to be provided by J. E agreed that he would ask K to perform some QA and also provide the feedback to Chris. However, E did make it clear to Chris that J would also need to perform QA and provide feedback as that was part of her duties. J had mentioned to me that she was uncomfortable providing Chris with feedback due to the response and reception that she received from Chris.10.J was often asked to perform QA as she was extremely thorough. When J first started providing feedback to Chris I sat across the aisle from them both, and from where I sat I was unable to hear feedback being provided by J.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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