Crivari and Telstra Corporation Limited

[2011] AATA 916

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 916

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2417

GENERAL ADMINISTRATIVE DIVISION		)
Re		NICOLE CRIVARI

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Ms Regina Perton, Member
Miss E A Shanahan, Member

Date 20 December 2011

Place Melbourne

Decision  The Tribunal affirms the decision under review.

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

Member

COMPENSATION – psychological injury – whether injury or disease - whether reasonable administrative action – whether taken in a reasonable manner

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14

Canute v Comcare (2006) 226 CLR 535

Comcare v Mooi (1996) 69 FCR 439

Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16

Re Henderson and Comcare [2010] AATA 700

Re Lynch and Comcare [2010] AATA 38

Re Radulovic and Comcare [2010] AATA 777

Re von Stieglitz and Comcare [2010] AATA 263

Workcover Corporation of South Australia v Summers (1995) 65 SASR 243

REASONS FOR DECISION

20 December 2011 Ms Regina Perton, Member
Miss E A Shanahan, Member

1.      Nicole Crivari commenced employment with Telstra Corporation Limited (Telstra) in 1998 as a contractor.   She was appointed as an employee in June 2000.  In 2003 Mrs Crivari was promoted to an executive assistant role, spending the next seven years working for the Executive Director of Operations, Peter Jamieson. 

2.      In her role as personal assistant, Mrs Crivari managed Mr Jamieson’s diary, organised travel, arranged meetings and provided him with relevant information for those meetings, and performed other administrative tasks.  She was also required to liaise with his family regarding his out-of-hours commitments and interstate travel. She received favourable performance appraisals.

3.      In October 2009, Mr Jamieson took on an additional role while maintaining his original busy schedule following the resignation of a senior colleague.  This led to additional workload and pressure on both him and Mrs Crivari.   Mrs Crivari believed she was handling the extra workload well. 

4.      On 9 December 2009 Mr Jamieson called Mrs Crivari into his office.  Mrs Crivari believes that he told her that she could not continue as his assistant and that she consider transferring into an equivalent role working for a different executive director.  Mrs Crivari, who had not been expecting this, became extremely distressed at the news.  She suspects that this action was taken at the behest of Mr Jamieson’s wife.  Mr Jamieson disagrees about aspects of the meeting.

5.      Following the meeting, Mrs Crivari suffered a suspected anxiety attack and was taken to hospital but discharged on the same day.  She has not returned to Telstra and on 10 May 2010, tendered her resignation.  Mrs Crivari believes that her former boss’s unwarranted actions have led to her medical condition.  Telstra submits that the condition arose as the result of reasonable administrative action taken in a reasonable manner.

6.      Mrs Crivari lodged a claim for compensation for depression/anxiety on 10 February 2010.  Telstra denied liability on 6 May 2010.   Mrs Crivari lodged a request for reconsideration on 19 May 2010.  Telstra affirmed the original decision on 4 June 2010.   Mrs Crivari applied to this Tribunal for review of the decision on 16 June 2010.

Legislative Background

7. Sections 5A and 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provide:

5A Definition of injury

(1) In this Act:

“injury” means:

(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.

(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.

5B Definition of disease

(1) In this Act:

“disease” means:

(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.

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

(3) In this Act:

“significant degree” means a degree that is substantially more than material.

8.      Ailment is defined in section 4 of the SRC Act to mean:

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

Section 14 of the SRC Act provides:

14 Compensation for injuries

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

…

Issues

9.      The issues before the Tribunal are:

·Whether Mrs Crivari suffers from an injury, namely a disease, for the purposes of the SRC Act?

·If Mrs Crivari does suffer from an injury, was that injury suffered as a result of reasonable administrative action?

·If so, was the reasonable administrative action taken in a reasonable manner in respect of her employment?

Does Mrs Crivari suffer from an injury?

10.     Mrs Crivari told the Tribunal that following her meeting with Mr Jamieson on 9 December 2009 (the meeting) she was crying, she had tingling legs and she felt like … [she] couldn’t breathe.  She remembers very little after this other than being very scared and being taken to the Royal Melbourne Hospital by ambulance.  She was discharged later that afternoon.

11.     Mrs Crivari claimed that in the days following the meeting she was very upset by it all and couldn’t stop crying.  She sought treatment from her general practitioner who initially prescribed Valium and then Lexapro.   In her oral evidence, she said she had resumed smoking, greatly increased her alcohol intake and lost a significant amount of weight.  She described a change in her eating and sleeping patterns and told of the nightmares she encountered reliving the event constantly.  Mrs Crivari detailed the decrease in her confidence and a lack of interest in her personal appearance.

12.     Mrs Crivari’s general practitioner, Dr Kamala De Silva, provided several medical certificates for Mrs Crivari, the first dated 11 December 2009, the day of her first consultation with Mrs Crivari following the meeting.  Dr De Silva provided a report dated 11 August 2010 in which she outlined Mrs Crivari’s treatment program and her continued care of Mrs Crivari.   In the report, Dr De Silva stated that Mrs Crivari was still unable to work due to anxiety and depression.  Dr De Silva did not make herself available to give oral evidence.

13.     Dr De Silva referred Mrs Crivari to psychologist Dr Anthony Cumming, on 21 December 2009.  Mrs Crivari did not take up the suggestion immediately with her first visit to Dr Cumming taking place on 17 September 2010.  Dr Cumming saw Mrs Crivari on several occasions and provided a report dated 31 January 2011 in which he detailed Mrs Crivari’s symptoms, results of various psychological tests and his conclusion that she suffers from Major Depressive Disorder and Generalized Anxiety Disorder. 

14.     Dr Kaplan, a consultant psychiatrist, saw Mrs Crivari at the request of her solicitors on 30 August 2010 and provided a report dated 2 September 2010.  He took a detailed history and characterised her condition as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.  He stated her condition was directly related to the incident of the 9^th December, 2009 and she currently has no capacity for work.  In his oral evidence, he reiterated the views set out in his report.

15.     Prior to attending Dr Kaplan or Dr Cumming, Mrs Crivari was referred to Dr Yvonne Greenberg, a consultant psychiatrist, who prepared a report on 12 August 2010, the day she examined Mrs Crivari.   Dr Greenberg stated that Mrs Crivari told her that she is now better than she was ... and [s]he agreed she was not overtly sad or depressed, but complained she is angry and resentful and disappointed about what happened to her. … She described ongoing regret and a sense of having been violated or treated unfairly.  Dr Greenberg’s diagnosis was at most … a mild adjustment disorder that was related to the work incident.  In a report dated 4 February 2011, Dr Greenberg disagreed with Dr Kaplan’s opinion of the degree of impact on Mrs Crivari’s condition.  In oral evidence, Dr Greenberg maintained her view of Mrs Crivari’s condition.

16.     In all of the consultations, Mrs Crivari reported no history of previous psychological or psychiatric illness or injury prior to the meeting. 

17.     The medical evidence indicates that Mrs Crivari’s condition has persisted although the degree to which it has impacted on her was not harmonious.  Dr De Silva used the term work related stress on a medical certificate shortly after the meeting on 9 December 2009; Dr Greenberg saw her in August 2010 and diagnosed mild adjustment disorder; Dr Kaplan, assessing her in late August 2010, suggested chronic adjustment disorder; and Dr Cumming, who saw Mrs Crivari on several occasions from mid-September 2010, concluded that she suffered both major depressive disorder and generalised anxiety disorder.  The Tribunal is satisfied that Mrs Crivari suffers from a psychological condition, which may be characterised as an adjustment disorder, arising from the meeting and contributed to — to a significant degree — by her employment with Telstra.

18.     In Re von Stieglitz and Comcare [2010] AATA 263 (von Stieglitz), the Tribunal relied on the High Court’s majority reasoning in Canute v Comcare (2006) 226 CLR 535, as well as that of Drummond J in Comcare v Mooi (1996) 69 FCR 439, to conclude, at [30] that:

… an adjustment disorder falls within the meaning of ‘disease’ not ‘mental injury’.

19.     This Tribunal finds that Mrs Crivari’s condition constitutes a disease for the purposes of s 5B of the SRC Act with the date of injury being 9 December 2009.

Was the injury suffered as a result of reasonable administrative action?   

20.     Mrs Crivari disputes that her injury resulted from reasonable administrative action taken by Telstra, in relation to her employment.

21.     In Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 (Summers), Doyle CJ stated, at 247:

[T]he words … “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties…

22.     The Tribunal has observed in recent decisions that administrative action must be some specific incident in the course of the employment, or a specific or identifiable course of conduct by an employer.  In Re Lynch and Comcare [2010] AATA 38 (Lynch), Senior Member Creyke concluded, at [97]:

What amounts to ‘administrative action’ is defined only to the extent of the examples given in section 5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and 'anything done in connection with' any of these examples. The examples are not exhaustive and the words 'in connection with' have been interpreted as words which 'have an ambulatory significance capable of a wide range of applications.’ These indications imply that ‘administrative action’ is capable of having a broad meaning.

23.     In ReHenderson and Comcare [2010] AATA 700 at [31], Senior Member Friedman quoted the Full Federal Court in Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16:

There are elements of rationality and proportionality in the relevant definitions of reasonably...The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court…

24.     At [24] Senior Member Friedman went on in Henderson to state:

Section 5A(2) of the SRC Act lists examples of action that might be described as reasonable administrative action for the purposes of s 5A(1) of the SRC Act, but is preceded by the words without limiting that subsection.

25.     There is no dispute that there was a meeting held between Mr Jamieson and Mrs Crivari on 9 December 2009 in relation to her employment.  The Tribunal heard differing evidence from Mrs Crivari and Mr Jamieson regarding the content of the meeting.

26.     In her written statement and in oral evidence, Mrs Crivari stated that her recollection of the meeting was that Mr Jamieson repeatedly referred to his wife’s  concerns that she felt disconnected from him whilst he was at work and that because Mrs Crivari was not getting along with her, they could not continue to work together.  When asked about the relevance of Mr Jamieson’s wife to the meeting of 9 December 2009, Mrs Crivari replied I believe it was very relevant … because that’s all he was talking about during the entire meeting.

27.     Mr Jamieson, on the other hand, stated that he made a passing reference to there being tension between his wife and Mrs Crivari but maintained that this was not the core of our discussion.  He told the Tribunal that he had concerns regarding Mrs Crivari’s ability to cope with the additional workload, that his diary was out of control and that, by the time he held the meeting, I concluded that we needed to discuss the issue and determine what we could do about it.  He claimed that his intention was to raise issues for discussion and that, when Mrs Crivari became upset, and he subsequently had to leave the office for another appointment, he suggested discussing it further that afternoon and the following morning.

28.     John Crivari, the applicant’s husband of 12 years, gave evidence that he was contacted by Mr Jamieson on the afternoon of 9 December 2009.  Mr Crivari stated that he had two or three conversations with Mr Jamieson; the first advising of his wife’s trip to hospital and the subsequent conversations relating to what had transpired at the meeting.  Mr Crivari stated that Mr Jamieson had said he had given … [Mrs Crivari] some bad news and she had not taken it very well and had suffered some sort of panic attack.  He said that Mr Jamieson had told him that there had been a meeting and that, because his wife wasn’t happy, he and Mrs Crivari could no longer work together.

29.     Further oral evidence was provided by Amy Paterson, who worked closely with Mrs Crivari, occupying the desk next to hers at Telstra.  She told the Tribunal that Nicki was in a very poor state when I went into the ladies’ room to see her. [She] … was … hyperventilating and couldn’t control her breathing and was sort of repeating words and visibly very upset, in tears and in shock. Ms Paterson accompanied Mrs Crivari in the ambulance to hospital and stayed with her; being dropped off by Mr and Mrs Crivari on their way home later that afternoon.  She stated that the three of them discussed what had been said at the meeting during the 40-45 minute car trip.  Ms Paterson was unable to hear what was said in the meeting.

30.     Ms Katherine Paroz, Telstra’s Director of Human Resources for the Consumer and Country-Wide Division, described her meeting with Mr Jamieson on 8 December 2009 in which he sought advice regarding how to voice his concerns that Mrs Crivari was being stretched a bit far in terms of her capacity … to deal [with the increased responsibilities of his new role].  Ms Paroz told the Tribunal that Mr Jamieson was genuinely worried that Mrs Crivari hadn’t chosen the increased workload and he was concerned about her wellbeing.

31.     In her written statement dated 12 April 2011, Ms Paroz indicated that during the meeting on 8 December 2009, Mr Jamieson had told her that Mrs Crivari was not coping with his added responsibilities … that his diary was out of control and he was worried about [Mrs Crivari].  She stated that the main thrust of … [his] concerns was that he was having trouble keeping on top of his schedule as a result of … [Mrs Crivari’s] inability to properly maintain his diary from early November 2009 when his role changed, and this was putting pressure on him in managing his time and the expectations of both his team and his family.  Mr Jamieson felt that the current situation was not sustainable and he felt that he needed to address it with … [Mrs Crivari].

32.     Ms Paroz stated that she recommended to Mr Jamieson that he have an initial discussion with Mrs Crivari to discuss how things were going, to see how … [she] was and how she felt about the change in her role.  She claimed that the purpose of the discussion was to open up a dialogue on the issue and maintained in her oral evidence that there was no mention of performance management or of the immediate transfer of Mrs Crivari to another position.  She stated that they discussed alternatives for Mrs Crivari, one of which was the possibility of working with another Executive Director who had a lighter workload but that if anything, it would be a possibility that would be looked at down the track rather than at that particular time.

33.     In respect of the meeting of 9 December 2009, the Tribunal takes into account Mrs Crivari’s version of events and her belief that Mr Jamieson’s actions came about because of his wife’s displeasure.   

34.     Nonetheless the Tribunal prefers the evidence of Mr Jamieson, as sustained by Ms Paroz’s evidence, that he was genuinely worried that Mrs Crivari was finding it difficult to keep up with the additional responsibilities and expectations of the increased role.  He agreed that he mentioned his wife but that was not the major part of the discussion.  He also mentioned the possibility of Mrs Crivari transferring to an executive assistant role with another director, a possibility to which Ms Paroz had referred. 

35.     Mr Jamieson gave evidence that when Mrs Crivari became upset during the meeting, he suggested postponing further discussion until later that day or the following morning as he had a telephone call waiting and a pending meeting.  Upon hearing that she was being treated by the first aid officer and an ambulance had been called, he returned to the office and rang Mrs Crivari’s husband.  When told that Mrs Crivari did not wish to speak with him, he suggested that Ms Paroz be the contact person during Mrs Crivari’s period of leave. There were subsequent meetings between Ms Paroz and Mrs Crivari.

36.     The Tribunal was presented with a copy of an Australian Workplace Agreement (AWA) signed by Mrs Crivari on 13 December 2007 which stated, amongst other things, that:

You may be assigned to another position within Telstra or seconded to another position within the Telstra Group.  This may involve retraining and working on different projects…

37.     Taking into account the preparation undertaken by Mr Jamieson and the reasons cited for the meeting as well as the AWA signed by Mrs Crivari, the Tribunal finds that Mr Jamieson’s actions in calling the meeting and initiating the conversation with Mrs Crivari constituted administrative action. 

Was the administrative action taken in a reasonable manner?

38.     As to whether administrative action is reasonable, Senior Member Creyke noted in von Stieglitz at [67]:

Whatever administrative action is to be taken must be ‘reasonable’.  Reasonableness is a chameleon-like concept, tailored to the circumstances.  As a minimum, to be reasonable the action must be lawful.  What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall.  Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned.  There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’.

39.     In Re Radulovic and Comcare [2010] AATA 777 at [73], Senior Member Creyke stated:

Accordingly the Tribunal considers that section 5A(2) does not extend to all forms of management action which may cause injury. To so interpret the provision could unduly stultify the underlying purpose or object of the Act, namely, to provide a ‘scheme of rehabilitation and compensation for employees who are injured in the course of employment’ unless there has been intentional infliction of an injury, or serious and wilful misconduct.  The Tribunal considers the preferable interpretation, as a matter of statutory construction, is to limit the provision to the examples listed to ‘anything reasonable done in connection with’ those examples and to other administrative action which falls within categories comparable to those listed.

40.     The Tribunal notes that there is nothing unreasonable about a manager, who is concerned about an employee’s well-being, seeking to discuss workloads and coping capabilities where there has been a significant increase in the duties attributable to the role.

41. Taking into consideration the principles enunciated in the cases cited and the reasons for the meeting, the Tribunal is satisfied that the administrative action which was responsible for Mrs Crivari’s injury was reasonable in the circumstances and that it was taken in a reasonable manner for the purposes of s 5A(1) of the SRC Act.

42.     For these reasons Mrs Crivari’s psychological condition is excluded from being an injury for the purposes of s5A of the SRC Act and there is, consequently, no liability to pay compensation under s 14 of the SRC Act.

Decision

43.     The Tribunal affirms the decision under review.

I certify that the preceding forty-three [43] paragraphs are a true copy of the reasons for the decision of:

Ms Regina Perton, Member and Miss E A Shanahan, Member.

………………[sgd]……………………….

Associate

Date of hearing:  27, 28 & 29 April 2011

Date of decision:  20 December 2011
Counsel for the applicant:                   Mr J Ferwerda
Solicitor for the applicant:                    Mr A Hounslow
  Hounslow & Associates
Counsel for the respondent:                Mr J Wallace
Solicitor for the respondent:                Mr L Dobelsky

DLA Piper