Christine Truscott and Comcare
[2012] AATA 220
•17 April 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3577
GENERAL ADMINISTRATIVE DIVISION )Re: Christine Truscott
Applicant
And: Comcare
Respondent
DIRECTION
TRIBUNAL: Senior Member Bell
DATE: 30 May 2012
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The date in paragraph 34 should read 27 July 2009, not 27 July 2007.
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Ms N Bell, Senior Member
[2012] AATA 220
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/3577
Re
Christine Truscott
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 17 April 2012 Place Sydney The Tribunal affirms the decision under review
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Ms N Bell, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – depression and anxiety – whether or not the conduct which resulted in the disease suffered by the employee was reasonable administrative action taken in a reasonable manner – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 14
CASES
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
Ms N Bell, Senior Member
17 April 2012
Christine Truscott started work with Centrelink as a Customer Service Officer in 2001.
In August 2009, Ms Truscott lodged a claim for compensation in respect of “reactive depression, anxiety”, claiming she had first noticed her injury on 24 July 2009 and first sought medical treatment for it on 3 August 2009. The reports of Dr Bevan, Dr Sagar, Dr Zsadanyi, Dr Spruce and Sharon Black, psychologist, confirm, and there is no dispute, that Ms Truscott suffers from a medical condition outside the bounds of normal human functioning.
Ms Truscott contends that two events significantly contributed to her injury: the imposition of a sanction in 2008 following a finding concerning her use of the intra office email system and counselling in 2009 following conduct at a meeting of staff.
Comcare contended that each of these events, the 2008 sanction and the 2009 counselling, amounted to reasonable administrative action which, under section 5A(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), excludes Ms Truscott’s psychiatric condition from the definition of “injury” under the Act. That means she could not be eligible to be compensated. Comcare also contended that the Federal Court’s decision in Hart v Comcare (2005) 145 FCR 29 means that if just one of the events, if found to have been reasonable administrative action, contribute to a significant degree to her condition, then that will serve to exclude her condition from the definition of “injury” under the Act. Ms Truscott contended that both events contributed significantly to her condition.
ISSUE
The issue for me to consider is whether at least one of the events that Ms Truscott says significantly contributed to her condition amounted to reasonable administrative action. In considering that issue, I must consider whether:
(i)The event was administrative action; and
(ii)If so, whether the administrative action was reasonable and undertaken in a reasonable manner.
WERE THE EVENTS ADMINISTRATIVE ACTIONS?
Section 5A(2) provides:
(2) For the purposes 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.
I am satisfied, and I note there was no argument to the contrary, that the imposition of a sanction in 2008 and the formal counselling in 2009 fall squarely within the scope of “administrative action” in section 5A(2) of the Act. In particular, the 2008 sanctions fall within section 5A(2)(c) and (d) and the 2009 counselling falls within section 5A(2)(b).
All that remains to be considered is whether the administrative action was reasonable and undertaken in a reasonable manner.
WERE THE ADMINISTRATIVE ACTIONS REASONABLE AND UNDERTAKEN IN A REASONABLE MANNER?
Mindful that the bulk of the evidence and argument in the hearing went to the 2009 counselling, I turn to that administrative action first. If I find that administrative action to have been reasonable and taken in a reasonable manner then I need not proceed to examine the 2008 sanction, given the effect of the judgment in Hart.
Ms Truscott contended that the formal counselling she underwent in 2009 failed to afford her procedural fairness. The counselling arose out of a staff meeting held on 22 July 2009. When agenda items had been discussed and matters were called for general business, and Ms Truscott’s supervisors, Ms Anderson, the then Site Manager and Ms Asvestas, the Team Leader, had joined the meeting, Ms Truscott raised the issue of the number of “netware pop ups and sametimes” staff were getting through the business day. These are the electronic inter-office broadcast messages used by Centrelink. Ms Truscott’s evidence was that , “[t]hey are distracting and a continuous disruption to work when you are typing documentation on a customer’s record you look up and see that there is nothing there.” In her statement she noted agreement and nodding from the staff at the comments she had raised. She further stated “Mrs Anderson then responded with words to the effect, ‘These messages being sent by the Leadership team are necessary to encourage staff to take customers.’” Her statement continued, “[f]inally when Mrs Anderson finished I went on to say words to the effect, ‘These are my own personal feelings and thoughts and this may not be appropriate but I get so frustrated and think to myself, the time taken typing these sametimes and popups [sic] may be better spent with those people getting off their bums and taking a walkin[sic]”.
In oral evidence Ms Truscott said that the people she was referring to were those sending the pop-up notifications – two customer liaison officers and staff that do not see customers. She said she felt they could offer to help by seeing the customers themselves. After the comment Ms Truscott sensed no tension in the room. She said she had stayed back in the meeting room to explain to her manager what she had in mind about correcting the problem.
Ms Truscott said that on Friday 24 July 2009 Ms Asvestas asked her to come to the Manager’s office to “discuss behaviour at team meetings” and said that “some things weren’t appropriate”. When I asked Ms Truscott whether the reference was to her behaviour, Ms Truscott said:
[n]o, to discuss behaviours. The team meetings were sometimes jovial. Sometimes staff would swear in the meetings. I used to think, well, some of them are inappropriate and that’s what I thought she was talking about. Just a general discussion.
(Tr. p. 44, 15 December 2011)
Ms Asvestas handed Ms Truscott a letter and said it was about formal counselling and invited her to open the letter. Ms Truscott said she told Ms Asvestas she would open it later and did so when she returned to her workstation. She said the letter advised her she was to attend a formal counselling session on the following Monday at 2.00 pm. Ms Truscott said she became upset and told Ms Asvestas she needed to go home. She maintains that she did not know the reason for the formal counselling and did not ask Ms Asvestas because she was too upset.
Ms Truscott said that once home she telephoned George Campbell, a union representative, who advised her to contact the union. She did so and arranged for a Ms Payne of the union to attend the Monday formal counselling meeting by telephone hook-up. She said she read the contents of the letter to Mr Campbell. Ms Truscott said that when Mr Campbell asked her what she had done, she responded, “I really don’t know”. She said she did not know despite saying previously that she was told by Ms Asvestas, the formal counselling session was about “behaviours at meetings” and possibly inappropriate behaviour. Under cross-examination, Ms Truscott was asked whether she had relayed that information to Mr Campbell. Her answer was that she could not remember.
Mr Campbell confirmed his statement dated 13 June 2011. Under cross-examination Mr Campbell said that Ms Truscott had not known what the formal counselling session was about. When pressed as to whether it was usual for persons in Ms Truscott’s position to have made no inquiries as to what the proposed counselling was about, he said it was not. He said “[m]ost of the time, people do know what it’s about…but in this case…[Ms Truscott] couldn’t actually work out what it was about”. He said he told Ms Truscott to ask the person giving her the notice what the subject of the meeting was. He said he could not recall whether Ms Truscott had told him about the conversation she had with Ms Asvestas immediately before she was handed the notice letter.
At the formal counselling meeting on Monday, 27 July 2009, Ms Truscott arrived with Mr Campbell. She said it began with a discussion between Mr Campbell and Ms Asvestas and Ms Anderson about who could participate. Ms Asvestas then read out the record of the formal counselling, that is, the record of complaint against Ms Truscott. Ms Truscott claimed no opportunity was given for her to speak at this point. She said she was then asked to sign the letter. She said that although she disagreed with its contents, at Mr Campbell’s prompting, Ms Truscott signed the letter and noted on it that she would like to make a response.
Ms Truscott said there was also discussion about a referee report prepared by Ms Asvestas that referred to Ms Truscott’s behaviour at the team meeting. Mr Campbell requested that statements from other staff be supplied.
Of the formal counselling session, Mr Campbell said that at the beginning of the meeting Ms Asvestas questioned his role in the meeting but then agreed to his participation. He said the complaint record was read out and Ms Truscott was asked to sign it. He said that when Ms Truscott said she did not agree with its contents, he prompted Ms Truscott to sign it and to make an addendum in the form of a note on the letter that she wanted to provide a response “before any decision was made”. He was largely unable to recall the meeting without referring to his statement. He confirmed that his statement had been prepared in the presence of Ms Truscott.
Ms Bromlin Percy, a colleague of Ms Truscott’s, gave character evidence and evidence of her observations of Ms Truscott in the workplace but cast no light on what happened at the team meeting.
Ms Ivanka Anderson, the Toronto Centrelink Service Centre’s then Site Manager, gave her version of the team meeting in a record of the meeting made on 29 September 2009. Ms Anderson said that when matters for general business were called, Ms Truscott raised the issue of the pop-ups on three occasions and it was on the third occasion when she said words to the effect of “if the leadership team can see there are that many walks waiting and I can tell there are walks there that the leadership team can do, then why doesn’t the leadership team get off their arses and do them”. Ms Anderson stated that the atmosphere of the meeting had “markedly changed”. She said:
[W]e had gone from a meeting that was friendly and affable in feel, which was, I guess apparent by the comfort that other people in that room had, to an environment where you could see people physically withdraw from the tables. So you would see people moving back and shrinking into themselves.
(Tr. p. 13, 16 December 2011)
Of the formal counselling session on 27 July 2009, Ms Anderson said she attended the meeting as an observer, at the request of Ms Asvestas. Ms Anderson said there was initial discussion about her presence as an observer but no objection was made. Ms Anderson said that Ms Truscott’s main concern was around the content of the referee’s report. Under cross examination Ms Anderson said the issue of the referee report was separate to the formal counselling and that she recalls Ms Asvestas saying she was happy to discuss that with Ms Truscott once the formal counselling was concluded.
Ms Asvestas recalled Ms Truscott had said words at the team meeting to the effect of “if management can see there are…all the walk-ins out there…and how to do them, they can get off their arses and serve”. Ms Asvestas also said that she felt that staff were shocked by Ms Truscott’s comment.
In her statement dated 27 October 2011, Ms Asvestas said when, on 24 July 2009, she gave Ms Truscott the notice to conduct the formal counselling session, she told Ms Truscott the reason for the counselling was her behaviour in the staff meeting. Ms Asvestas said Ms Truscott replied by asking “What for?” to which Ms Asvestas said again it was in relation to her behaviour at the meeting. Ms Asvestas said Ms Truscott said words to the effect of “you’re joking” or “you’re kidding”. Ms Asvestas said she told Ms Truscott she could not get into the detail until they had the formal counselling session the following Monday on 27 July 2009. Ms Asvestas said Ms Truscott’s main concern at the counselling session was the referee report. She recalled that when Ms Truscott endorsed the record of formal counselling Mr Campbell said that “they would respond to this at a later date”.
I note that the Merits Protection Commission, on Ms Truscott’s application, conducted a review of the formal counselling. In summary, it identified three grounds on which Ms Truscott sought the decision be reviewed. They were: first, that she did not make the statement attributed to her; second, that her behaviour at the team meeting was not inappropriate; and third, that the Team Leader, Ms Asvestas should not have taken events in 2008 into account in the counselling process. In relation to the first ground, the Commission concluded that it:
can reasonably be considered to be disrespectful of the leadership team. Whether she referred to ‘arses’ or ‘bums’, she was suggesting the people sending messages should perhaps spend less time sitting on those body parts sending messages, and more time seeing customers.
In relation to the second ground, the Commission concluded, “there is sufficient information to support the conclusion that Ms Truscott did not behave appropriately during the discussion of the pop-ups issue.”
In relation to the third ground, the Commissioner concluded:
The decision to formally counsel Ms Truscott was made after consulting the HR area, and it would appear that as this was a second occurrence of disrespectful behaviour within 12 months, it was determined that informal counselling was not appropriate. While Ms Truscott says that HR should not have revealed that information, the keeping of records of counselling on a personal file is for just this purpose – to inform future action concerning the employee in question. Consulting HR and obtaining the relevant information is entirely a proper course of action.
The Commission concluded that the action to formally counsel Ms Truscott and the meeting for that purpose should be confirmed.
I am satisfied that Ms Truscott was given adequate notice of the formal counselling meeting and that its subject matter was made known to her. In this regard, I note and accept Ms Asvestas’ evidence of the words she said to Ms Truscott on handing her the notice of the formal counselling meeting – that it concerned behaviour at the team meeting. I note also that Ms Truscott did not dispute those words. I also note and accept her evidence of Ms Truscott’s response of “you’re kidding”. This indicates some understanding on Ms Truscott’s part of the reason for the formal counselling meeting. It is improbable that she did not know what the counselling was about. I note Mr Campbell’s evidence that when he asked her what it was about and she told him she did not know, he urged her to find out. If Ms Truscott had no understanding of the subject of the counselling meeting and her union representative urged her to find out, her failure to do so is unexplained.
Ms Truscott had the support and guidance of two union representatives in the meeting and the benefit of discussions with at least one of them beforehand.
I am satisfied that Ms Truscott was afforded an adequate opportunity to respond to the charge against her. Indeed, on her union representative’s advice, she notated the record of formal counselling with the words “Sophia, I will provide a response to this later”. Ms Truscott did respond in a letter dated 2 August 2009. I note that Ms Asvestas responded to answer her concerns and that no further action was taken.
As to the decision by management to formally counsel Ms Truscott, it may not be a course of action taken by every manager in a similar situation, or indeed a course of action that would, in similar circumstances, have been taken by this Tribunal. However, that is not the test for reasonableness. I accept Ms Asvestas’ evidence that the decision to counsel was a response to behaviour that was taken to be disrespectful and inappropriate, that it was arrived at after consultation with Centrelink Human Resources officers and that it was implemented in accordance with the Centrelink “People Handbook”. I have reviewed the relevant section of that Handbook and I am satisfied that the decision to formally counsel Ms Truscott was taken in accordance with it. The matter was relatively minor and so only counselling was required. There had been a previous occasion on which Ms Truscott had been formally counselled and so, according to the Handbook, formal rather than informal counselling was necessary. No formal investigation or finding of a breach of the Code of Conduct was required and no sanction was imposed.
Ms Truscott also complained that it was a breach of procedural fairness for Ms Asvestas and Ms Anderson to hold the formal counselling meeting because they were biased against her. There is no evidence of such bias. They were present in the team meeting when the offending comments were made; they are directly and indirectly Ms Truscott’s managers and supervisors; they each have responsibilities for the management and administration of the organisation and its policies and procedures. It was not inappropriate for one or both of them to administer the counselling. There is no evidence of bias.
It should be remembered that this was not an investigation or an imposition of a sanction. It was counselling. Ms Truscott’s complaint that Ms Asvestas, in particular, was “witness, complainant and investigator” is misconceived.
I conclude that the administrative action to formally counsel Ms Truscott on 27 July 2009 was reasonable and undertaken in a reasonable manner.
Given this conclusion, Ms Truscott’s agreement that this event significantly contributed to her condition, and the application of the principle in Hart, I must conclude that the exception in section 5A(2) of the Act applies and Ms Truscott has no entitlement to compensation. It is unnecessary for me to consider whether the imposition of a sanction in 2008 was reasonable and undertaken in a reasonable manner.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
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Associate
Dated 17 April 2012
Dates of hearing 15 and 16 December 2011 Date final submissions received 3 February 2012 Applicant In person With the assistance of George Campbell Counsel for the Respondent David Richards Solicitor for the Respondent Dibbs Barker
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