Commonwealth of Australia and Comcare Jennifer Haseler OTHER PARTY
[2013] AATA 503
[2013] AATA 503
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1546
Re
Commonwealth of Australia
APPLICANT
And
Comcare
RESPONDENT
And
Jennifer Haseler
OTHER PARTY
DECISION
Tribunal Deputy President PE Hack SC
Date 16 July 2013 Place Brisbane The decision under review is set aside and a decision substituted that the determination of 9 December 2011 be affirmed.
The respondent is ordered, pursuant to s 67(8A) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay the other party's costs of and incidental to these proceedings, to be taxed if not agreed.
....................[Sgd]....................................................
Deputy President PE Hack SC
CATCHWORDS
COMPENSATION – INJURY – Adjustment disorder – Injury suffered as result of reasonable administrative action taken in reasonable manner in respect of applicant’s employment – Decision under review set aside and substituted – Initial determination affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A(1), 5A(2), 5B(1), 14, 67(8A)
CASES
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
REASONS FOR DECISION
Deputy President PE Hack SC
16 July 2013
Introduction
Ms Jennifer Haseler is a long-term employee of the Commonwealth. At all relevant times she was employed in the Beenleigh Customer Service Centre of Centrelink, an agency within the Commonwealth Department of Human Services.
These proceedings have their origin in a meeting held in that Service Centre in July 2011. It is a sufficient explanation for present purposes to say that, in the course of that meeting, Ms Haseler expressed some views about other staff members, and expressed them in a fairly critical way, with the result that she was ultimately the subject of formal counselling. She suffered from a psychological reaction to events in her workplace, diagnosed as an adjustment disorder. She made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The respondent, Comcare, initially rejected the claim but, on reconsideration, determined that it was liable to pay compensation to Ms Haseler in accordance with the SRC Act for an injury described as “adjustment reaction” with the deemed date of injury of 1 September 2011. Comcare took the view (which it maintains in these proceedings) that the action taken by the Department was not reasonable and that it was not taken in a reasonable manner, with the result that the condition was not excluded from the statutory definition of “injury” in the SRC Act.
The Commonwealth seeks a review of Comcare's decision. It says the actions of its officials were reasonable and that they were taken in a reasonable manner. Ms Haseler appeared by counsel to support Comcare's decision.
Factual background
I do not understand what follows to be in issue. Ms Haseler was employed as a Client Service Adviser (CSA) at the Beenleigh Service Centre of Centrelink. She was very experienced in that role having performed it at the Beenleigh and other Centrelink offices for some 20 years. Her immediate supervisor in July 2011 was Ms Penny Goodall who was one of two full-time Team Leaders at the Beenleigh Service Centre. In July 2011 Mr Ross Hannan was the Manager of the Beenleigh Service Centre. Ms Susan Morrison was employed as Region Manager at that time. In that capacity Ms Morrison had responsibility for a number of Service Centres (including Beenleigh) and for a number of individual programs administered by the Department of Human Services.
Centrelink employed two social workers at the Beenleigh Service Centre including a person who, for reasons that will be readily apparent, I shall describe simply as the complainant. For some considerable time Ms Haseler had been dissatisfied with the level of service provided to CSA's by the social workers and by the complainant in particular. I should say immediately that it is no part of my function to determine whether she was right to be dissatisfied, I need only record the fact of her dissatisfaction.
On the morning of 14 July 2011 (a Thursday) there was a team meeting at the Beenleigh Service Centre. It commenced around 8:45am and was attended by approximately 10 people including Ms Goodall and Ms Haseler. Mr Hannan did not attend as he was absent from the office on that day. The complainant was to give a presentation to the persons present about the capabilities of the social work services and some planned changes. After about 30 minutes of the complainant’s presentation Ms Haseler interjected. She was, as she subsequently described it[1], "very emotional" because of her view that the complainant was not performing her role as a social worker adequately. On Ms Haseler's account[2] she accused the complainant of not providing social work support to clients when Ms Haseler sought assistance. Her statement continues,
My voice was shaking as I was very upset. I just wanted to leave the meeting. I stood up & said that it was a lousy social work service & that I was sick of it. I then left the training room very upset.
Ms Goodall's account of Ms Haseler’s comments puts them in more inflammatory terms however the parties appear to accept that I am not required to reach a concluded view on which account of events is to be preferred. I should say that had I been required to do so I would have had no hesitation in preferring Ms Goodall's account.
[1] Exhibit 1, page 31.4.
[2] Exhibit 1, page 31.6.
Ms Goodall, who was in charge of the Beenleigh Service Centre in Mr Hannan's absence, took up with Ms Haseler immediately after the meeting. The two spoke for about an hour. Ms Goodall regarded Ms Haseler's conduct at the meeting as unprofessional and inappropriate. She sought, seemingly without success, to explain to Ms Haseler that her actions had taken the focus away from the issues of social work services that concerned Ms Haseler and that Ms Goodall would now be required to address Ms Haseler’s actions. She explained to Ms Haseler that she would be required to follow-up on the matter because Ms Haseler’s actions had not been appropriate. Ms Goodall telephoned Mr Hannan on that day to inform him of what had occurred at the meeting.
The following day, and on his return to the Beenleigh Service Centre, Mr Hannan first spoke to the complainant as he had been told the previous day that the complainant had been quite distressed by the interaction with Ms Haseler. He and Ms Goodall then met with Ms Haseler. Mr Hannan wanted to obtain Ms Haseler’s version of events. He explained to her that he was following up on concerns that had been raised about the meeting the previous day. His discussion with Ms Haseler included an attempt to have her understand that her conduct the previous day had had an impact on the complainant. Ms Haseler wanted to know the precise words that she was said to have used but Mr Hannan said, on a number of occasions, that he did not know the precise words used as Ms Goodall, who had been at the meeting, was unable to recall them precisely. Ms Goodall recalled the import of the words but not the precise form of them. At one stage, when Mr Hannan asked Ms Haseler how the complainant might have felt as a result of her comments, she told him that she did not care about how those comments had made the complainant feel. Ms Haseler says that she was told by Mr Hannan that the complainant had made a complaint about the comments she had made to the complainant[3]. Mr Hannan told Ms Haseler that, in the absence of some acknowledgement of the impact of her behaviour on the complainant, the matter was likely to be progressed and that there may be a follow-up.
[3] Exhibit 1, page 31.9.
As it happened, 15 July 2011 was Mr Hannan's last day as Service Centre Manager at Beenleigh. He was thereafter transferred to another position and Ms Goodall took over as acting Service Centre Manager from Monday, 18 July 2011.
Ms Morrison became involved in the matter on 15 July 2011 when she was informed that the complainant had made a formal complaint about Ms Haseler's conduct at the meeting on the previous day. Ms Morrison spoke initially to Mr Hannan. He subsequently reported to her at greater length after his discussions on 15 July 2011 with Ms Haseler. Additionally Ms Morrison spoke to Ms Goodall on a number of occasions. Ms Goodall conveyed to her that whilst she was unable to remember every word spoken by Ms Haseler the view she formed was that Ms Haseler's conduct at the meeting was not appropriate and was unprofessional.
Ms Haseler went on leave on 27 July 2011 and was away until 17 August 2011.
On 8 August 2011 Ms Morrison participated in a meeting to deal with a number of “people” issues relating to the Beenleigh Service Centre including that involving Ms Haseler and the complainant. Present at that meeting were two senior officials in the Department's “People Support” section and another official, Ms Michelle Lees. Ms Morrison concluded, on the material available to her, that Ms Haseler's conduct towards the complainant at the meeting on 14 July 2011 may not have been appropriate. In consultation with Ms Lees she determined that the matter was relatively minor and that the behaviour was not part of a regular pattern of such behaviour. Accordingly, a decision was made to follow an “informal pathway” and to respond with formal counselling. Ms Morrison gave effect to that decision on 24 August 2011 by forwarding to Ms Haseler a document described as “Notice of formal counselling” and dated 23 August 2011. It was in these terms[4],
Notice of formal counselling
I am writing to formally advise you that due to identified issues with your conduct in the workplace, specifically your behaviour towards your colleague [the complainant] when you spoke to her in a disrespectful and discourteous manner, you will be required to attend formal counselling.
I will be conducting the formal counselling which will take place on Friday 2 September 2011, Beenleigh CSC at 10.00am. If you desire, you may bring a person of your choice to this session, in a support capacity.
You may provide comments responding to matters raised either in this notice or during the formal counselling, and these comments will be considered in the context of making decisions relating to this process.
Following the formal counselling, and considering your comments, a record of counselling will be produced which will be attached to your personnel file and retained for a period of 7 years.
If you are unable to attend the scheduled meeting, please advise me as soon as possible so that alternative arrangements can be made.
[4] Exhibit 1, page 57.
Ms Haseler responded the following day. Her e-mail to Ms Morrison read,
I am responding in relation to your “Notice of formal counselling” sent by e mail 23 August 2011.
I am assuming that you are referring to a comment I made in a team meeting 20 July 2011 at Beenleigh CSC.
Due to the brief unspecified information outlined in your e mail relating to a “workplace issue” I request the following information prior to meeting with you on Friday 2 September 2011:
All evidence that has/will be taken into consideration e.g. any written statements, notes, meeting minutes, meeting agenda & the background information relating to the context of my comment during the staff meeting, including other staff members comments prior to mine.
I specifically request:
1.The exact comment that it is alleged that I made.
2.The name of the complainant/s and a copy of the complaint/s.
3.Name of Manger/Team Leader [sic] that initiated this course of action i.e. formal counselling section.
I was informed 22 July 2011 that a formal complaint had been made in relation to my comment in the before mentioned meeting 20 July 2011. The current Beenleigh CSC Manager advised me 23 August 2011 that she is unaware as to the name of the complainant/s or advise me what the difference is between a complaint and a formal complaint.
The wording of the e mail from you indicates to me that you have already determined that I spoke to [the complainant] in a “disrespectful and discourteous manner”. As I have not yet had the opportunity to discuss this matter with you and give my side of the story, I find the predetermined guilt so far to be a denial of natural justice.
On 30 August 2011 Ms Morrison responded to that e-mail as follows,
Thanks for your email.
The “Notice of Formal Counselling” is in response to comments you made towards [the complainant] in a staff meeting which was held on 14 July 2011.
I have attached the statement written by [the complainant], cutting out other names and anything else which is irrelevant to you.
You are more than welcome to provide me with any comments prior to or at the time of formal counselling. As there were a number of witnesses to the incident, based on the balance of probability, it is my view that the incident described did actually occur as [the complainant] has stated.
A copy of the complaint was enclosed.
Ms Haseler read that e-mail and the complainant’s account of events the following day. She discussed it, and the “gross exageration [sic] and lies” she saw in it, with others who had been at the 14 July 2011 meeting. She then left work feeling “unable to perform any duties” having informed Ms Goodall that she would attend the counselling session scheduled for 2 September 2011. She attended on Dr Andrew Clare, a general practitioner, on 1 September 2011. He concluded that she was incapacitated for work and gave her a certificate to that effect.
When Ms Morrison learnt that Ms Haseler had been certified unfit for work she decided not to undertake the counselling session with Ms Haseler. It was eventually undertaken by another official in October 2011.
Ms Haseler lodged a claim for compensation on 23 September 2011. On 9 December 2011, Comcare determined that it was not liable to pay compensation to Ms Haseler. Ms Haseler sought a reconsideration of that determination which resulted in a reviewable decision being made on 22 February 2012 that revoked the earlier determination and decided to accept liability for a condition described as adjustment reaction. These proceedings were commenced by the Commonwealth on 19 April 2012.
The medical evidence
Ms Haseler first contacted Dr Clare on 1 September 2011 seeking a referral to a psychologist. His report indicates that she was complaining of[5],
significant psychological disturbance as a result of a recent acute escalation in chronic workplace conflict involving a particular staff member.
Dr Clare noted considerable detail of Ms Haseler's complaint and recorded this account from her of the meeting on 14 July 2011[6],
On the 14/07/2011 Mrs Haseler described verbally lashing out at the aforementioned staff member in the context of a workplace meeting this she felt was very out of character and she immediately felt guilt and regret. Mrs Haseler felt that this uncharacteristic behaviour was symptomatic of the high levels of anxiety and frustration she was experiencing as a result of the aforementioned issues.
[5] Exhibit 1, page 88.1.
[6] Exhibit 1, page 88.4.
Dr Clare concluded[7] that on 1 September 2011 Ms Haseler was suffering from an adjustment disorder with anxious mood.
[7] Exhibit 1, page 89.3.
Ms Haseler was seen by Dr Benjamin Duke, a consultant psychiatrist, on 3 October 2012 for the purposes of these proceedings. Dr Duke concluded that the meeting of 14 July 2011 was the likely trigger of Ms Haseler’s adjustment disorder[8]. Additionally, in response to the question whether Ms Haseler's condition was contributed to, in a significant degree, by her employment, he responded[9],
Yes. The formal counselling session, the preconceived unprofessionalism of her behaviour, the lack of seeking corroborating or contrary evidence by management to the allegations made by the social worker, the perceived inaccuracies in records of meetings and statements made by management throughout the application and appeal process, as well as the ongoing appeals against decisions by Comcare have all contributed to Ms Haseler's condition.
[8] Exhibit 2, page 7, paragraph 6(b).
[9] Exhibit 2, page 6, paragraph 5.
The legislation
By virtue of s 14 of the SRC Act, Comcare is liable to pay compensation, in accordance with that Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. The term injury is defined in s 5A(1) of the SRC Act as meaning,
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
It is common ground that, in the dichotomy created by that definition, Ms Haseler's condition fell to be described as a disease. That term is defined in s 5B(1) of the SRC Act as meaning,
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
It is, as well, common ground that Ms Haseler's employment by the Commonwealth contributed, to a significant degree, to the condition from which she suffered.
The parties accept that resolution of the application turns on the issue of reasonable administrative action, a term which is dealt with in s 5A(2) of the SRC Act in this way,
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.
Centrelink’s disciplinary policy
Employees of the Commonwealth such as Ms Haseler are bound by the Australian Public Service (APS) Code of Conduct set out in s 13 of the Public Service Act 1999 (Cth). That includes the obligation, when acting in the course of APS employment, to “treat everyone with respect and courtesy”. Unsurprisingly, Centrelink had (and has) a written policy dealing with suspected breaches of the APS Code of Conduct. That policy requires that once a suspected breach of the APS Code of Conduct is identified, judgement be made whether the suspected breach is a minor breach. If it is, the policy says this,
Where the suspected breach of the APS Code of Conduct is minor, and is not part of a pattern of misconduct, the employee's team leader/manager should consider whether it is sufficient to formally counsel the employee rather than refer the matter for formal action under Centrelink's procedures. This may include the National/ Area Manager issuing the employee with a warning letter advising them that their conduct came under scrutiny and reminding them of their obligations as a Centrelink employee. Examples of minor breaches of the Code of Conduct may include, but are not limited to, swearing while conversing with a colleague, and telling an inappropriate joke to a colleague.
Where it is determined that action to formally counsel the employee is sufficient, counselling must be conducted, and records made, on the basis that there may have been a breach of the Code of Conduct. The reason for this is that there has not been a formal finding that the employee did breach the Code of Conduct. Similarly, warning letters should reflect that the conduct may have constituted a breach of the Code of Conduct.
The employee should be advised, as part of the counselling session, that any further suspected breaches of the Code of Conduct may be referred for formal action under the Code of Conduct procedures, and of the sanctions that may be imposed if they are found to have breached the Code.
A written record of the counselling session must be prepared and the employee provided with an opportunity to either sign the record as an accurate record of the discussion, or attach a statement outlining any areas of dispute. Where the employee elects to not sign the record, or provide a statement, the team leader/manager should make a note on the record to the effect that the employee was provided with an opportunity to provide comments. A copy of the record must be provided to the employee, and another placed on the employee's personal file where it will be retained for a minimum of seven years.
Other parts of the policies specify the steps to be taken where the suspected breach is not a minor breach. They involve a considerably greater degree of formality than is required where the matter is to be dealt with as a minor breach.
The policy refers, as well, to the principles of “natural justice” and seeks to provide some guidance as to the content of those principles. Whilst the content of procedural fairness was at the forefront of the parties’ submissions those submissions were not informed by the policy document and it is not necessary for present purposes to undertake any examination of the explanations given in the policy document.
Consideration
I will start with some further reference to the evidence of Ms Morrison about the decision to send the notice of 23 August 2011. I should say immediately that I found Ms Morrison to be a careful and thoughtful witness. I have no hesitation in accepting her evidence. She did not speak to, or communicate directly with, Ms Haseler before deciding to undertake formal counselling. She was, she said, satisfied that Ms Haseler had been given an opportunity to explain her behaviour and conduct in the lengthy meetings that she had had with Ms Goodall (on 14 and 15 July 2011) and with Mr Hannan (on 15 July 2011). Ms Morrison was confident in the judgement of Ms Goodall and Mr Hannan about Ms Haseler's lack of insight into the errors in her conduct at the meeting and her treatment of the complainant at that meeting.
It is common ground that Ms Haseler's employment contributed, to a significant degree, to the onset of her adjustment disorder with anxious mood. And it is also common ground that Ms Morrison's actions in undertaking formal counselling contributed to her condition. That action was then a concurrent cause of Ms Haseler’s ailment. The argument of the parties proceeded on the footing that the decision of the Full Court in Hart v Comcare[10] required me to hold that Ms Haseler's condition did not answer the description of injury in s 5A(1) of the SRC Act if (a) Ms Morrison's actions amounted to administrative action taken in respect of Ms Haseler's employment, and (b) that administrative action had been reasonable administrative action, and (c) it had been taken in a reasonable manner.
[10] [2005] FCAFC 16; (2005) 145 FCR 29, at [22].
For the purposes of considering Ms Morrison's actions I have treated them as encompassing the decision, taken on 8 August 2011, to undertake formal counselling of Ms Haseler, together with the communication of that decision to Ms Haseler on 24 August 2011 (including the notice of 23 August 2011) and the subsequent e-mail to Ms Haseler of 30 August 2011. I did not understand either Comcare or Ms Haseler to submit that Ms Morrison's actions were not administrative actions taken in respect of Ms Haseler's employment. The contest is centred on whether those actions were reasonable and whether they were taken in a reasonable manner.
The Commonwealth submitted that those actions were reasonable and had been taken in a reasonable manner with the result, it was said, that Ms Haseler's condition was not an injury as defined because of the words of exclusion in the definition of injury in s 5A(1) of the SRC Act. Comcare and Ms Haseler submitted, although for slightly different reasons, that Ms Morrison's actions were not reasonable actions and were not taken in a reasonable manner. The arguments, in substance, were based on the premise that Ms Haseler was not afforded procedural fairness.
One of the arguments for Comcare that needs to be considered at the outset is that the policy document, on its proper construction, did not permit a decision-maker such as Ms Morrison to, in effect, change a decision to undertake formal counselling. A decision, once made, was immutable with the equally immutable consequence that a written record was to be placed on the employee's personal file and retained for a minimum of seven years.
I do not accept that is the construction to be placed on the policy. The imperative “must” in the second paragraph of the policy qualifies the type of entry to be made, not that there must be an entry. The purpose of the paragraph is to ensure that a record made refers to the fact that there may have been a breach of the Code of Conduct, not that there had been such a breach. That latter conclusion is open only after following the other, and more detailed, procedures in the policy to determine breaches of the Code. Ms Morrison properly treated the policy as a policy ought to be treated, a guide of general application but one that, where necessary, yielded to particular circumstances. Comcare’s argument, which I reject, would treat it as having legislative force.
The argument for Comcare and Ms Haseler was that Ms Haseler had been denied procedural fairness. It was said by Comcare that Ms Morrison had made a decision to counsel without consulting with Ms Haseler, without a statement from her and without first providing her with a copy of the letter of complaint[11]. Ms Haseler complained that she had not been provided the particulars requested by her in her e-mail of 25 August 2011 and that the case against her had not been revealed[12]. Additionally Ms Haseler (but not Comcare[13]) submitted that Ms Morrison's decision was tainted by bias, both actual and apprehended.
[11] Exhibit 10, paragraph [4].
[12] Exhibit 12, paragraph [36].
[13]Comcare’s Statement of Facts, Issues and Contentions (Exhibit 10) made an allegation that the decision to counsel had been “tainted with bias” but that allegation was expressly not made at the hearing.
Despite the arguments of Comcare and Ms Haseler, a decision to undertake formal counselling and the undertaking of it was reasonable administrative action. No sensible basis was advanced why formal counselling was inherently unreasonable beyond the repetition of the matters that were said to demonstrate that it was not taken in a reasonable manner. In reality the question in this case is whether Ms Morrison’s actions were taken in a reasonable manner. I consider that they were.
Ms Morrison was not obliged to consult Ms Haseler, or to seek a statement from her, before taking a decision to formally counsel her. She had consulted with Ms Goodall and Mr Hannan who had provided Ms Haseler with a full opportunity to express her views and who had conveyed their judgement to Ms Morrison. In my view their judgement was entirely correct and Ms Morrison was right to rely on that judgement. Contrary to Ms Haseler's arguments at the time[14] and her arguments in the course of the hearing the “exact comment” she made to the complainant was beside the point. Her conduct was not in issue because of the words that she used, it was in issue because she had interrupted a staff training session and had been discourteous to another staff member in so doing. As Ms Morrison said in her evidence, the words were not the most pertinent, what was important was Ms Haseler's conduct in standing up, speaking out and leaving the meeting, exchanging words as she did so. These matters were raised with Ms Haseler by both Ms Goodall and Mr Hannan. They both explained to her, at some length, that the issue was her conduct and attitude and the effect that conduct had on the complainant.
[14]See, for example, her response to the notice of 23 August 2011 at Exhibit 1, page 58.
Nor was it necessary to provide Ms Haseler with a copy of the letter of complaint because what Ms Morrison was dealing with was not an allegation of the use of particular words but an allegation of discourtesy and disrespect. She was not dealing with an allegation of a breach of the APS Code of Conduct, she was proceeding in a manner designed to avoid making such a determination. Moreover, given Ms Haseler’s stated response to receiving the letter[15], it may have been a wise decision not to provide it to her at the outset.
[15] See paragraph 15 above.
Ms Haseler well knew the case she had to answer and she had ample opportunity to answer it. It was not a case that she had used any particular words, it was that she had interrupted a staff training session and had been discourteous to another staff member. She was given the opportunity to respond to that case in meetings with Ms Goodall and Mr Hannan. She chose not to do so. She chose to divert attention from her conduct into an investigation of her complaints about the complainant and the social work section as well as an unnecessary and distracting focus upon the exact words that she was supposed to have used. And it might be thought, given the comments attributed to her by Dr Clare and given that she accepts that she stood up, interrupted the meeting and made comments to the complainant that the social work service “was a lousy service”, that the reason she did not offer an answer to the complaint raised with her by both Ms Goodall and Mr Hannan was that she had no answer to provide. The conclusion that she had acted in a disrespectful and discourteous manner was inescapable.
But in any event, as the notice of 23 August 2011 made clear, Ms Haseler had the opportunity to respond to the matters raised in the notice either before the counselling or during it. Ms Morrison said, and I accept, that she was open to be persuaded by Ms Haseler. She accepted that if, in some way, Ms Haseler had been able to be vindicated she would not have proceeded with the counselling and no record of counselling would have been placed on Ms Haseler's personal file. The “view” expressed in the e-mail of 30 August 2011 from Ms Morrison to Ms Haseler that “the incident described did actually occur as [the complainant] has stated” does not detract from that evidence. Ms Morrison said that she was not there recording a finding as to the details of the incident, she was recording only her conclusion that an incident had occurred. There was no reason to doubt that conclusion a fortiori given Ms Haseler’s account of the meeting.
Ms Haseler’s complaint that she was denied the “particulars” demanded in her e-mail of 25 August 2011 is devoid of substance. The particulars sought were not necessary to fairly apprise her of what she was being called on to deal with. She was, I consider, fully aware of what she was being asked to deal with having regard to her earlier conversations with Ms Goodall and Mr Hannan.
I am then satisfied that Ms Morrison acted in a reasonable manner by deciding to undertake formal counselling and communicating that decision to Ms Haseler.
Ms Haseler’s contention that Ms Morrison’s conduct demonstrated actual and apprehended bias falls away in light of this conclusion. It is, in any event, devoid of factual substance. Ms Morrison’s evidence satisfies me that she remained open to be persuaded. In those circumstances there can be no question of pre-judgement evidencing actual bias. And the fair-minded lay observer could not reasonably apprehend that Ms Morrison might not bring an impartial mind to the resolution of the question she was required to decide, viz. whether Ms Haseler ought be counselled, having regard to the contents of the notice of 23 August 2011.
Conclusions
It follows that the decision under review should be set aside and a decision made in substitution that the determination of 9 December 2011 be affirmed. Comcare accepted that if that conclusion was reached there was no reason why the discretion in s 67(8A) of the SRC Act should not be exercised to require Comcare to pay Ms Haseler her costs incurred in the proceedings. There will be an order accordingly.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ...................[Sgd].....................................................
Associate
Dated 16 July 2013
Date(s) of hearing 11 & 12 June 2013 Solicitors for the Applicant Sparke Helmore Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Australian Government Solicitor Counsel for the Joined Party Mr R Reed Solicitors for the Joined Party Newmann & Turnour
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