Deborah Wraight and Telstra Corporation Limited
[2013] AATA 615
[2013] AATA 615
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0417
Re
Deborah Wraight
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 30 August 2013 Place Brisbane (heard in Lismore) The decision under review is affirmed.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Workplace injury or disease – Reasonable administrative action – Performance management in the workplace – Prior illness – Psychiatric condition – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
CASES
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
Senior Member Bernard J McCabe
Deborah Wraight, a former Telstra employee, has a psychiatric condition. She said it was caused or (if it was a pre-existing condition) aggravated by events in her workplace. She wanted Telstra to accept liability for her condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Telstra refused in a reviewable decision dated 19 January 2012. Ms Wraight asked the Tribunal to reconsider that question.
THE EVOLUTION OF THE CASE
The case evolved over time. It was still evolving on the first day of the hearing. It turns out the applicant and her solicitors had not accessed a number of documents provided by the respondent. The respondent also complained it had not been provided with a number of statements that were important to its defence. It said it was in the dark over the real basis of the applicant’s claim. The parties discussed whether it was appropriate to seek an adjournment. It was ultimately agreed we would press on and hear the claim, but the proceedings were undoubtedly more complicated and protracted (and acrimonious) because of the way in which the case had been prepared.
The respondent had approached the case as a “reasonable administrative action” case – that is, it argued the onset or aggravation of any condition was at least partly attributable to Telstra’s reasonable administrative action (within the meaning of s 5A) in 2011. That action consisted in particular of a number of performance management meetings and coaching sessions. Telstra came armed with evidence that was designed to demonstrate the behaviour of its managers in 2011 was reasonable in conception and execution. If I was satisfied about that, I was invited to conclude the claim must fail regardless of what else might have occurred in the workplace for the reasons identified by the Full Court in Hart v Comcare [2005] FCAFC 16 (although the respondent did not for a moment concede anything else in the workplace did contribute to the onset or aggravation of a condition).
Ms Wraight, for her part, argued she was mishandled in the performance management process in 2011. The procedures and the managers who carried them out were depicted as unnecessarily aggressive, and she complained she was not given any advance notice of the matters to be discussed when summoned to attend a meeting. Ms Wraight said the formal performance management process was unjustified in any event. She argued the administrative action was not reasonable. She said the exclusion in s 5A does not operate and the stress generated through the process in 2011 can be taken into account.
I am satisfied the focus on reasonable administrative action in 2011 was misconceived. I do not doubt the performance management process was stressful: there is probably no nice or stress-free way to undertake a performance management process (although there are certainly ways in which a performance management process can be made much more stressful than it needs to be). The medical evidence and the evidence of Ms Wraight’s behaviour during and immediately before the performance management process in 2011 suggest she was already suffering from a psychiatric condition. Her perception of that process, and her response to it, was almost certainly coloured by her condition. I am not satisfied the evidence establishes her condition was aggravated – let alone caused – in 2011 by the administrative action, reasonable or otherwise. She was already unwell by that point. The real question is whether there is any aspect of her work or workplace that might have contributed to the onset or aggravation of the condition before the performance management process was initiated in 2011.
I would add that, if pressed to decide, I would have concluded the administrative action in 2011 was justified, because aspects of Ms Wraight’s performance had deteriorated and some sort of action was warranted. No doubt that deterioration was attributable to the psychiatric condition which had already become evident. While she undoubtedly found the performance management process unpleasant because she was in such a poor state of mind, I was not persuaded there was anything that suggested the administrative action was undertaken in an unreasonable manner. That is not to say the process was necessarily a flawless one: the applicant argued, for example, that the procedure was more stressful than it needed to be because individuals were asked to attend a meeting for performance purposes without being told in advance what the meeting was about. Apparently it was Telstra’s policy at the time to do things that way. I was told in evidence that managers wanted to avoid a situation where they might be drawn into a conversation about the matters they were going to discuss at the meeting before they were ready to do so. Reasonable people can disagree about whether that was the best way to proceed, but I do not need to resolve that question. Suffice to say I was not satisfied Telstra carried out its processes unreasonably.
WHAT HAPPENED?
Ms Wraight became a sales consultant at Telstra’s call centre near Lismore in 2003. She was trained to deal with sales enquiries in relation to a range of Telstra products, including broadband and Foxtel. Ms Wraight said in her statement (exhibit 2) that she was a successful consultant who exceeded her targets. The respondent’s witnesses appeared to accept Ms Wraight had a good record in her first few years at the call centre. I accept that is so.
Things began to change at the call centre in 2006. The mix of work the applicant undertook was altered: she was required to do things other than sales. She said in her statement that she began to deal with billing enquiries as well. She did not indicate a problem with the change although she did refer to criticisms made of her work in 2006 to the effect she had been “parrying” calls (ie, failing to take calls, perhaps because the operator hit the wrong button). She admitted in her statement that the affair made her “very upset” because she felt she was being treated unfairly, and noted she had sought medical assistance at the time.
A new computerised information management system was introduced early in 2008. It was called SIEBEL. I heard a lot about SIEBEL during the course of the hearing. Mr Tressider, a former call centre employee who was called by the applicant, suggested the system was “rubbish”. He said the system would crash frequently, and it took ages to do some routine tasks – tasks that had to be performed while the customer was left waiting on line. He said some tasks could not be completed at all. He explained that led to frustration, which often resulted in aggressive behaviour from customers. I was told Telstra had made a serious mistake when it decided to implement the system: it was not appropriate technology for that workplace. Ms Wraight essentially endorsed Mr Tressider’s views, as did Mr Parnell, another long-serving employee who had worked in the centre and who was called by the applicant to give evidence. Each of them made much of the system’s potential for frustrating customers, who might become aggressive as a result.
Managers who gave evidence admitted there were teething problems with the SIEBEL system. Mr Maguire, for example, agreed there were many complaints from staff although he suggested the real challenge was that staff were required to do things differently. He said Telstra understood the difficulty staff might have in coming to terms with the new system. He explained the company invested heavily in training and made allowances in relation to targets and performance measures. Ms Neasbey, who managed the centre, also agreed the system occasionally crashed but insisted the problems were steadily remedied and staff were provided with appropriate training. She said in cross-examination that she initially wished Telstra had stuck with its old system but over time it became much better. She suggested new employees might have had an easier time of it because they did not have to make a transition from the old system, although she added many of the long-serving staff made the transition successfully.
A new approach to management was also becoming evident during this period. A number of new, younger managers were taking over. They oversaw an environment in which euphemisms and jargon became the order of the day. Training was renamed “coaching”, managers were “team leaders”, and shortcomings in performance or outright mistakes became “opportunities”. Even operators became known as “Customer First Champions” – an unwieldy moniker that was, perhaps inevitably, reduced to the acronym “CFC”. Individuals were required to meet “performance metrics” and an operator’s work was informed by acronyms like “HEAT”. “HEAT” outlined the correct response when faced with a complaint. An operator was helpfully informed that he or she should:
·Hear;
·Empathise;
·Apologise/Acknowledge; and
·Take Ownership/Action.
More calls were being monitored as managers started to take a more directive approach to the way in which operators handled customer interactions. Mr Maguire explained senior Telstra management had decided the company needed to place more emphasis on customer service. The training was stepped up, and managers emphasised the need to handle calls in particular ways (and within particular time-frames) to improve the customer’s experience of dealing with Telstra. Ms Neasbey said all calls were recorded in the latter years of Ms Wraight’s time at Telstra, whereas a much smaller proportion of calls were recorded in the past. Managers certainly spent more time observing or listening-in to calls and reviewing operators’ performance under the new approach. Ms Neasbey indicated she made random observations across the call centre herself, while team leaders would roam the floor observing calls, providing coaching and offering feedback to staff about their performance. Ms Webster said in her statement that she was required to observe calls to each operator in her team on at least four occasions each month, but she typically listened to more. She said she monitored roughly the same number of calls to each operator, although she obviously examined more calls to a particular operator if something in one of those calls or in the statistics or customer survey results caught her attention. Ms Webster coached the applicant when she was the applicant’s team leader for six months from May 2009 and again in August 2011 until the applicant left work in November 2011. Ms Webster’s statement (exhibit 13) describes the monitoring and coaching process she adopted throughout her interaction with the applicant. Ms Webster explained she used the “GROW” model for coaching staff, and the “WOH” model for observing calls. (Happily I do not need to descend into the detail of these acronyms and the models they describe; suffice to say the procedures were all developed and approved by Telstra.) Her statement annexed copies of the coaching logs which record all of the interactions between managers and Ms Wraight from 29 April 2011 through 18 November 2011.
Those logs show Ms Wraight was coached extensively. The coaching dates are summarised in Ms Webster’s statement. Ms Wraight said she felt she was being singled out and treated unfairly: she said she expected managers to observe her calls about twice a month but the logs show Ms Webster listened in to calls and coached her on at least six (in her evidence she suggested as many as eight) occasions in July 2009, for example. (I note Mr Parnell, another long-serving employee, also felt he was being singled out for careful attention.) Ms Webster said she undertook that amount of coaching because it was required: she listened to calls in the ordinary course and identified problems (or “opportunities” in the parlance of the centre) which required coaching. She said in her statement and her evidence that she was not convinced the applicant was responding appropriately to the coaching. In her statement, Ms Webster said the applicant would be sullen and dismissive during coaching sessions, and noted Ms Wraight “aired negative comments” about Telstra’s performance indicators in a group coaching session in May 2009. Another example of the applicant’s negative attitude was said to be evident in a log entry dated 24 August 2009 when the applicant was visibly upset after a coaching session. Ms Webster recorded a follow-up conversation in which the applicant said she did not appreciate the scrutiny or feedback. I note the applicant was so distressed by this interaction that she saw her doctor and took sick leave for a week, according to her statement. She claimed she felt undervalued and was shaken by the suggestion her job might be in jeopardy. As she explained in her statement (exhibit two at [26]):
…I was so stressed, as the feelings of fear and mistrust by this team leader consumed me.
Many of the issues identified in the logs in 2009 are (when viewed in isolation) comparatively minor, such as repeatedly arriving late for work and taking longer breaks, and repeated failures to leave notes of interactions with customers. But there are more serious issues recorded as well. The log entries on 21 and 24 August 2009 related to Ms Wraight’s failure during observed calls to ask for appropriate details that would enable her to confirm the identity of the caller. Ms Webster counselled Ms Wraight about that failure because of the potential for a breach of privacy laws. Ms Webster noted in the log (and confirmed in her evidence at the hearing) that Telstra takes legal and regulatory issues very seriously. The log entry on 24 August notes that failures to comply with legal and regulatory requirements in the future would result in more formal action. There were other infractions of this kind recorded in the notes in 2009 and in 2011.
Ms Wraight did not dispute the substance of the criticisms of her when she was asked to comment on them in cross-examination, although she suggested a number of the criticisms were overblown. She said she was doing her best and blamed the work environment and the lack of training.
I accept the issues identified in the logs and discussed by Ms Webster were genuine performance issues that were appropriately the subject of remedial action. I am not persuaded Ms Wraight was being singled out or treated unfairly by Ms Webster or other managers when she was given extra coaching during 2009. I accept Telstra had decided to focus more effort on improving its performance in customer service, and it had implemented a more intensive and intrusive monitoring and training system to this end. There was nothing recorded in the logs or referred to in the evidence of Ms Webster or Ms Wraight which persuaded me the coaching was carried out in a way that was unreasonable or insensitive. I note there is evidence recorded in the logs of Ms Wraight being very upset about the experience, and reacting negatively to it. I will have more to say about these findings in due course.
The logs suggest the applicant’s performance remained unsatisfactory in various respects into 2011. There were more issues surrounding legal and regulatory requirements and in March, she was summoned to a meeting with Mr Wilburn and Mr Maguire to discuss a number of calls. She was not told in advance what the meeting was about; Mr Willis, for the applicant, made much of that in his submissions. Mr Maguire, Mr Wilburn and Ms Neasbey explained it was Telstra policy not to engage an employee in a discussion about performance issues which were to be discussed at the meeting. Apparently there was a fear it would somehow short-circuit the meeting process, which was carefully constructed under the Performance Improvement and Conduct Management (“PICM”) framework. I am not sure whether it was ultimately a wise policy, but that is not the test. I am not satisfied it was unreasonable to call the meeting without giving detailed information about what was to be discussed. In any event, the meeting did not go well. Ms Wraight said she felt demeaned and distressed by the way she was treated. Mr Maguire and Mr Wilburn agreed Ms Wraight did not respond well during the course of the meeting but they explained and defended their conduct in detail. It may be they could have handled it differently, but once again, that was not the test: their account of the meeting did not suggest they behaved unreasonably. Ms Wraight had a different perception, but – for reasons I will explain when I discuss the evidence of Dr Varghese below – I think her account of the meeting and her reaction to it should be treated with caution. In the circumstances, I prefer the accounts of Messrs Wilburn and Maguire, who both presented as earnest and truthful witnesses.
After the meeting, Ms Wraight was placed on a verbal warning. Ms Webster said she subsequently placed Ms Wraight on a Performance Improvement Plan (“PIP”) which was provided for under the PICM framework. Ms Webster said the PIP was justified because there were ongoing problems with the applicant’s performance.
I have already noted the mix of work within the centre continued changing after the SIEBEL system was introduced and the new approach to management had commenced. Ms Wraight said operators was spending less time on sales calls, where she said she excelled, and more time dealing with other enquiries. Mr Tressider said that made the job much harder, as one was expected to develop expertise in relation to a much wider range of products and functions. He said the training was not adequate in this regard. Ms Wraight was critical in her statement of some of the key performance indicators and time-limits imposed on operators. (Mr Maguire, in contrast, suggested the key performance indicators and performance metrics were much more flexible and were routinely adjusted retrospectively to accommodate particular circumstances.) But that was not the worst of it, Ms Wraight explained. She said a significant and increasing proportion of the calls she dealt with were complaint calls.
The evidence about the incidence and effect of the complaint calls varied. The applicant said many routine complaints were dealt with by offshore centres, but a number of more complex calls were routed to the centre near Lismore. In her evidence at the hearing, the applicant said around 75% of her workload was comprised of complaint calls. A number of callers became aggressive, she said, and their mood was not improved when the SIEBEL system malfunctioned or worked slowly. Mr Tressider broadly agreed in his evidence: he said he spent up to half of his time dealing with complaint calls. Ms Wraight and Mr Tressider both said they were not given appropriate training or support to deal with complaints – especially abusive complaints. They were critical of the HEAT procedure. It was too general, I was told.
Ms Neasbey agreed a large percentage of the calls to the centre from existing customers involved a complaint in the sense that the customer had a problem he or she wanted to resolve. But she said a much smaller percentage were problematic calls. She acknowledged there were occasionally abusive calls but she added operators were provided with training, which included the HEAT checklist I have already discussed. Mr Wilburn said Telstra introduced a new phone system which allowed customers to tell a computerised voice about the nature of the call, and about 20% of those calls were tagged with the word “complaint”. Mr Maguire agreed the number of calls identified as complaint calls went from about 3% in earlier years to 20% by 2011; Ms Webster suggested in her evidence the rate of complaints might have risen from 3% to 20-30% by 2011. Mr Wilburn added the lion’s share of complaint calls to the centre was dealt with by a dedicated complaints resolution team. I understand Mr Tressider was on the complaints’ resolution team, at least for a period. Ms Wraight was not.
Ms Wraight did not identify a particular call prior to 2011 that was problematic. I was not aware that any particular call before that point caused her distress. Her statement indicated (exhibit two at [30]) the burden of dealing with complaints was really only becoming a serious issue by 2011. Her complaints about the adequacy of the SIEBEL system were also unhelpfully non-specific: while she said it was unsatisfactory in a number of respects (it crashed often, it was slow, it was not user friendly, it was inflexible and poorly-designed, orders that had already been submitted were lost and had to be re-submitted, and so on), I was not provided with clear evidence of how a particular failing caused her distress on a particular occasion before 2011.
I have already observed the focus on the performance management process in 2011 was misconceived. As I noted at the outset of these reasons, the applicant’s psychiatric symptoms were well established before that time. I indicated it would be necessary to identify incidents or aspects of the work that might have contributed to the onset or aggravation of the condition before 2011. In the evidence I have discussed so far, at least three different features of the workplace might have made a contribution:
·The stress associated with the introduction of the SIEBEL system and its shortcomings;
·The need to handle customer complaints, particularly when the customers were abusive; and
·The performance monitoring and counselling that occurred during 2009.
I should refer to the medical evidence at this point. That evidence will shed some light on the factual findings I must make.
THE MEDICAL EVIDENCE
I have already noted the applicant consulted her general practitioner and took time off work for stress in 2006, 2009 and 2011 after she was counselled in relation to performance issues at work.
Dr Huntsman, a consultant psychiatrist, was called to give evidence on behalf of the applicant. He initially diagnosed adjustment disorder with depressed mood and anxiety in his report of 1 May 2012 (exhibit 3). He subsequently diagnosed major depression in his further report of 14 May 2013 (exhibit 4), which had developed over “two to three years”. He said in his oral evidence the date of onset for the condition was around 2009. At the hearing, he doubted the performance management processes in 2011 were the cause of any problem. He said the genesis of her problem lay in:
·The change of role from dealing with sales to dealing with more general enquiries;
·Difficulties dealing with the new SIEBEL system when it was introduced; and
·Being counselled unreasonably in 2009.
Dr Huntsman said he was unaware of any other aspect of the applicant’s history that would explain the onset or aggravation of her condition, such as problems at home or in her interpersonal relationships.
Dr Varghese was called to give evidence on behalf of the respondent. Dr Varghese is a respected expert in the field. He is independent and well-credentialed. His evidence was given in a balanced and careful way. He opined that the applicant certainly experienced major depression in 2011, although he thought it may have begun earlier – perhaps much earlier. He noted there were symptoms of depression as early as 2006 or 2007; he suggested the applicant might have experienced a dysthymic disorder (a chronic, low grade depression) at that earlier point which subsequently developed into major depression.
The medical evidence suggests the applicant was already seriously ill with major depression by the time she underwent the performance counselling process in March 2011. Indeed, as Dr Varghese explained, her struggle with depression might explain why she was performing so poorly as to attract the attention of her managers from as early as 2006. It certainly explained the way in which she behaved during the performance management meeting with Mr Wilburn and Mr Maguire, and why she failed to improve in the months that followed.
Dr Varghese’s evidence about a dysthymic disorder may also explain the applicant’s unrelentingly negative perception of her treatment by managers over several years. Dr Varghese said in his evidence that persons suffering from depression might readily misperceive events or behaviour. He agreed change in the workplace and other issues (like taking abusive complaint calls or coping with a malfunctioning computer system when under pressure to achieve performance targets) might be a factor in the onset or aggravation of symptoms of depression. Stressful interactions with managers (like those occurring in 2009, for example) might also make a contribution.
I am satisfied the medical evidence establishes the onset of the applicant’s serious psychiatric symptoms was around 2009. Dr Huntsman’s oral evidence was clear on that point, and Dr Varghese’s evidence certainly pointed to that strong possibility. I also accept the evidence of Dr Varghese that the applicant was in all likelihood experiencing some psychiatric symptoms – perhaps as a consequence of a dysthymic disorder – that was affecting her work and her perceptions of her workplace from as early as 2006. I note that conclusion is consistent with the opinion of Dr Huntsman. Dr Varghese’s evidence also suggests I should be cautious in accepting Ms Wraight’s account of her feelings when she was being managed by Ms Webster in 2009: the applicant’s sense of victimisation may be the product of her illness rather than anything Ms Webster said or did. I am in any event satisfied the applicant’s experiences when she was counselled about aspects of her performance in 2009 made a significant contribution to the onset or aggravation of those symptoms – significant enough to warrant her taking stress leave in August 2009 following a coaching session which included negative feedback and an allusion to the possibility of formal performance management processes.
THE LEGISLATION
The applicant said Telstra is liable for her condition (or for the aggravation of her condition) under s 14 of the SRC Act. The respondent argued the applicant’s major depression is properly characterised as a disease for the purposes of the Act; the applicant said the condition was an injury. In either event, the applicant would argue events in the workplace made a significant contribution to the aggravation, if not the onset, of the applicant’s major depression.
Telstra does not concede events in the workplace had much impact on the applicant. It was critical of the generality of the applicant’s claims. It argued, in effect, it was just trying to run its business and get its employees to do legitimate and reasonable things the company needed to do to improve its performance. It says it did nothing wrong in its treatment of Ms Wraight – indeed, it was able to point to evidence of relatively generous treatment of its workforce at the centre, which included flexible working hours. But of course that is not the test under the legislation. An employer can behave with the best of intentions and in accordance with best practice and still be liable for the impact of events in the workplace on the health of an employee – even where the employee is unusually vulnerable to injury because of circumstances that have nothing to do with the workplace. That is the way the legislation works.
I accept the applicant’s argument that she was affected by several features of her workplace. In particular, I accept Ms Wraight:
·did have some trouble coping with the teething problems of the SIEBEL information system. It was not clear from the evidence whether the problems made a significant or even a material contribution to the onset or aggravation of her condition;
·may have experienced some anguish at the hands of abusive callers – although once again it was not clear whether any of these calls made a significant or even a material contribution to the onset or aggravation of her condition;
·did experience significant stress in connection with performance management processes in 2009 that caused her to consult her general practitioner and take stress leave from work. She also took leave after performance management processes in 2011 and ultimately ceased work at the end of that year, but I have already found her condition was well-established by that point so that events in her workplace in 2011 could not be said to have caused or aggravated the condition.
I have already explained I am satisfied it was reasonable for the respondent to conduct a performance management process (which clearly qualifies as administrative action within the meaning of s 5A(2)) in 2009 in light of documented concerns about Ms Wraight’s performance. I have also found the process was carried out in a reasonable manner. In the circumstances, given I have concluded the administrative action made a significant contribution to the aggravation (or perhaps the onset) of the applicant’s major depression in 2009, I accept the respondent is entitled to rely on the exclusionary provision in s 5A. It follows it is not liable under s 14 of the Act for the psychiatric condition which may have resulted.
CONCLUSION
Ms Neasbey suggested in her evidence that she thought the call centre was mostly harmonious in the period in question, but I am not surprised other witnesses disagreed. New managers were attempting to implement a stronger customer focus, which necessitated changes in the way in which business was done. The future of the call centre was in doubt: there were constant rumours it might close. Ms Neasbey agreed a number of long-serving staff were disgruntled in light of changes that were occurring. It was apparent Ms Wraight and Messrs Parnell and Tressider were amongst those who were unhappy. They felt underappreciated and they disagreed with the new managers’ methods and strategies, and they were especially critical of the decision to introduce the new information system. I do not know whether those concerns were valid; that is not part of my role. I must focus on what actually happened in the workplace, and the impact on Ms Wraight’s health.
For the reasons I have given, I am satisfied the decision under review must be affirmed.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 30 August 2013
Date of hearing 5, 6, 7 and 13 June 2013 Counsel for the Applicant Mr T Willis Solicitors for the Applicant Somerville Laundry Lomax Solicitors Counsel for the Respondent Mr C Clark Solicitors for the Respondent DLA Piper
0