Dimitra Michalopoulos and Comcare
[2012] AATA 850
•3 December 2012
[2012] AATA 850
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4328
Re
Dimitra Michalopoulos
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 3 December 2012 Place Canberra The decision under review is set aside and in place thereof the Tribunal decides that Ms Michalopoulos suffered an injury in the form of an Adjustment Disorder in respect of which Comcare is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The deemed date of the injury is 6 September 2010.
.........................[sgd]...........................................
Mr S. Webb, Member
COMPENSATION – psychological injury claim – alleged bullying and harassment – adjustment disorder significantly contributed to by employment – exclusionary factors – performance issues – actions taken relating to workload reporting are not administrative actions in respect of the employee’s employment – claimed injury was not suffered as a result of reasonable administrative actions – decision set aside
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 7, 14
Abrahams v Comcare [2006] FCA 1829
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26
Re Beasley and Comcare [2012] AATA 411
Re Carpenter and Comcare (2010) 116 ALD 190
Comcare v Caldwell [2008] FCA 2015
Commonwealth Bank v Reeve [2012] FCAFC 21
Shi v Migration Agents Registration Authority [2008] HCA 31
Szabo v Comcare [2012] FCAFC 129
Wiegand and Comcare [2010] AATA 790REASONS FOR DECISION
Mr S. Webb, Member
3 December 2012
For many years, Dimitra Michalopoulos was employed by the Australian Tax Office. She worked in the information technology area as a Team Leader at the Executive 1 level. Following some restructuring, she was transferred to a new section with responsibilities relating to the Tax Return Data Base (TRDB). Things did not go well. She experienced difficulties and believed that she was being bullied and harassed. Her managers raised performance issues. She became stressed and struggled with anxiety and other symptoms. She complained to her managers and to a Harassment Contact Officer. She believed that she was seen to be the problem and that no action was taken to address her allegations of bullying and harassment. She persisted with her work, but she suffered from psychological symptoms and was certified unfit for work.
Ms Michalopoulos claimed compensation, but her claim was rejected by primary determination[1] and on reconsideration[2]. She applied for review.
[1] T31.
[2] T40.
A number of issues relating to the Tribunal’s jurisdiction arose in the course of the hearing, and it is convenient to address these first.
Jurisdiction
Ms Michalopoulos wanted me to address injuries that may have arisen in the context of her employment after the date of her compensation claim. Comcare opposed this, but urged me to make factual findings in relation to the alleged resolution of the illness Ms Michalopoulos has claimed as an injury. Additionally, Comcare noted evidence of work stress and psychological symptoms during a period preceding the claimed date of injury, and submitted that any such injury exceeds the Tribunal’s present jurisdiction.
The scope of Ms Michalopoulos’ claim[3], and the Incident Report[4] that preceded it, inform the extent of matters that may be decided when determining her claim for compensation. When construing these documents a “broad, generous and practical interpretation must be adopted”[5]. The scope of the claim informs the matters that may be addressed on reconsideration under s 62. If application for review of a reconsideration decision is made under s 64, enlivening the Tribunal’s jurisdiction, the Tribunal may exercise all the powers that were open to the reconsideration decision-maker when addressing the claim. The Tribunal has no power to determine matters outside the jurisdiction conferred upon it by the Act.
[3] T9.
[4] T6 and Exhibit A9.
[5] Szabo v Comcare [2012] FCAFC 129, per Emmett and Greenwood JJ at [33]; Abrahams v Comcare [2006] FCA 1829 at [18].
Thus, in consideration of Ms Michalopoulos’ notice on 24 December 2010 and the claim dated 18 January 2011, it can clearly be seen that the injury claimed is one arising from alleged bullying and harassment in her employment in the TRDB section of the Tax Office, with an injury date of 26 February 2010[6]. The materials attached to the claim[7] clearly refer to events and incidents in the period from 26 February 2010 to 18 January 2011, which Ms Michalopoulos considers to be bullying and harassment. The scope of her claim is confined to that period and to the various incidents and events that are said to have caused the “Anxiety and Stress” injury. Injuries before and after this period are not within the scope of the notice or the claim, and the Tribunal has no jurisdiction to address such matters.
[6] T9 folio 40.
[7] T16.
It follows that the Tribunal is not able to determine whether the psychological symptoms Ms Michalopoulos appears to have suffered from October 2009 to February 2010 constitute an injury for the purposes of the Act. Even though Ms Michalopoulos says that this was the result of work pressure, she has made no claim for an injury of this kind and the point has not been tested. The same applies to allegedly injurious incidents in Ms Michalopoulos’ employment after the date on which she lodged her compensation claim. If Ms Michalopoulos was exposed to incidents in her employment after the date of her compensation claim, and those incidents caused a fresh injury or an aggravation of her Adjustment Disorder, even though the Tribunal must consider matters as they stand at the date of review[8], the fresh injury or aggravation would fall outside the jurisdiction of the Tribunal in respect of her present application for review.
[8] Shi v Migration Agents Registration Authority [2008] HCA 31 at [25] to [51] per Kirby J and [96] to [101] per Hayne and Heydon JJ.
As to Comcare’s submission that, following the cessation of her employment by the Tax Office, Ms Michalopoulos recovered from the claimed injury, this is not a relevant matter when determining liability under s 14. The only purpose served by Comcare’s submission is to establish facts relevant to the cessation of compensation that may be payable under particular heads of entitlement under the Act, in respect of compensation for medical treatment expenses or incapacity for work for example, if liability is established under s 14. It should be noted that, once liability is established under s 14, it remains open to testing by claims for particular compensation entitlements from time to time.
The Tribunal’s task is to make the correct or preferable decision on the materials before it. In some circumstances it may be permissible to find facts concerning the resolution of an illness under claim as an injury when determining issues of threshold liability, but it will only be appropriate to do so if the Tribunal has jurisdiction to do so and both parties have been given an adequate opportunity to adduce and test relevant evidence addressing the issue. This has not occurred in Ms Michalopoulos’ case. No claims under particular heads of entitlement in respect of the claimed injury have been made. The alleged resolution of the injury has not properly been tested and I will make no findings in that regard. These are properly matters for others when dealing with claims under particular heads of entitlement.
The contextual facts
Even though there is evidence that Ms Michalopoulos was suffering from suspected depression and work stress on 3 February 2010 and over preceding months, she maintains that she was well when she commenced duties in the TRDB section under Mr Sharma’s supervision on 16 February 2010. Her duties were as a team leader, supervising eight people, five of whom were permanent public service employees of the Tax Office and three were contractors engaged by the Tax Office.
It is quite clear that Ms Michalopoulos and Mr Sharma had different expectations concerning reporting arrangements within the team she led. It appears that Mr Sharma expected the contractors to report directly to him. Mr Ahmed Hijazi, his supervisor, supported this arrangement. Ms Michalopoulos informed me that she was not apprised of this arrangement prior to taking up her new duties and she was surprised by it. The evidence of Ms Chan La supports this point[9]. It appears that within one week on Ms Michalopoulos commencing her duties as a Team Leader in the TRDB section, Mr Steven Neethyrajah, an on-going Executive Level 1 officer on Ms Michalopoulos’ team, arranged with Mr Sharma to report directly to him rather than to Ms Michalopoulos. Mr Sharma informed me that he made this decision in consultation with Mr Ahmed Hijazi, his supervisor, but he did not consult or inform Ms Michalopoulos before doing so. Mr Hijazi confirmed that he approved this arrangement. Mr Sharma could not explain why Mr Neethyrajah had approached him about this changed reporting arrangement, and he gave no cogent explanation of why he had agreed to approve it.
[9] Exhibit A7.
Thus, under these arrangements, Ms Michalopoulos had only four members of her team reporting directly to her, but she was required to report to Mr Sharma about the tasks allocated to each member of the team and the work of the team as a whole. Ms Michalopoulos’ consistent evidence is that certain members of her team, most notably Mr Ashok Dhawan, a contractor allocated to her team, provided information reports directly to Mr Sharma and then refused to provide her with the same information for her reporting purposes. Her evidence is that this circumstance caused her difficulty in meeting Mr Sharma’s reporting requirements in respect of “Infras” – a service management system for the receipt, allocation and monitoring of TRDB faults or errors and the deployment of repairs within the section. She informed me that she explained the problem to Mr Sharma and sought his assistance to resolve it, but without a positive response. Mr Sharma identified Ms Michalopoulos’ workload and her performance as the problem, and required her to drop one of the three corporate roles she was then undertaking – she decided to drop her role as a Health and Safety Representative.
Emails between Mr Sharma and Ms Michalopoulos dated 13 April, 13 May, 21 May, 23 May and 2 June 2010 support a finding that Mr Sharma required Ms Michalopoulos to provide him with reports in respect of Infras allocated to members of her team, and that there were discussions about the form and content of these reports over a period of months.
On the evidence of Mr Sharma and Mr Hijazi, Mr Dhawan was a senior technician with extensive knowledge on which they would rely in preference to that of others, including Ms Michalopoulos. There is clear and unequivocal evidence from Ms Michalopoulos, Mr Sharma and Mr Hijazi that Mr Dhawan was prone to yelling, shouting and screaming in his dealings with other employees, including Ms Michalopoulos. Ms Michalopoulos informed me that, soon after commencing work in the TRDB section, she complained (informally) to Mr Sharma that she felt bullied and harassed by Mr Dhawan, but there is no contemporaneous documentary evidence to corroborate that she did so. Mr Sharma denied that she had made any such complaint. Ms Michalopoulos said that she raised the matter with Mr Hijazi. Mr Hijazi confirmed that this was correct. If Mr Sharma’s evidence is correct, it would follow that Ms Michalopoulos complained to Mr Hijazi, but not to Mr Sharma. When all of the evidence is considered, that is highly improbable. I prefer Ms Michalopoulos’ evidence over that of Mr Sharma on this point. I accept Ms Michalopoulos’ evidence and find that she complained informally to Mr Sharma and to Mr Hijazi about alleged bullying and harassment by Mr Dhawan soon after commencing work in the TRDB section, in or about March or April 2010.
Mr Hijazi stated that he investigated Ms Michalopoulos’ complaint, but found no supporting evidence. There is no documentary evidence to corroborate this. I note that if Mr Hijazi investigated Ms Michalopoulos’ complaint, as he asserts, it appears that he did so informally and without producing any documentation of the procedures he followed, the investigations he undertook, the evidence he obtained or the findings he made.
Even so, on Mr Hijazi’s evidence, he and Mr Sharma decided to divide Ms Michalopoulos’ team into two groups, one led by Ms Michalopoulos and the other by Mr Neethyrajah. It appears that these matters were discussed with Ms Michalopoulos at a meeting on 5 August 2010[10]. Mr Dhawan was placed in the group under Mr Neethyrajah. This action was taken on 8 August 2010 and it suggests that Mr Hijazi and Mr Sharma found sufficient reason to remove Mr Dhawan from Ms Michalopoulos’ team following her complaint. Despite this change, the physical arrangement of the team remained the same – Mr Dhawan occupied a desk close to that occupied by Ms Michalopoulos. Mr Hijazi informed me that he arranged for Mr Dhawan to relocate to his area for a period. But this evidence is without reliable corroboration.
[10] T16 folios 84-88; Exhibit R6 page 3.
Ms Michalopoulos says that she was increasingly stressed by Mr Dhawan’s continuing aggressive and arrogant behaviour, which she considered to be bullying and harassment, and by Mr Sharma’s demands and feedback in respect of Infra reporting and other matters, which she considered to be inconsistent, as well as his lack of support in respect of the alleged bullying, which she considered unreasonable in the circumstances. Ms Michalopoulos says that she repeatedly raised these matters with Mr Sharma and Mr Hijazi, but no further action was taken to address her allegations of bullying.
On 19 August 2010, Ms Michalopoulos completed a Performance Development Agreement (PDA) review with Mr Sharma[11]. On 3 September 2010 she provided Mr Sharma with a revised PDA and meeting with him to discuss it. The content and outcomes of these discussions are summarised in Mr Sharma’s email to Ms Michalopoulos dated 10 September 2010[12] and in the revised PDA[13]. Ms Michalopoulos’ performance was rated at three on a five-point scale, being satisfactory or competent. Learning and development recommendations were made to assist her to progress and to improve her performance during the next assessment period.
[11] T5.
[12] T19 folio 129.
[13] T4.
It appears that Mr Sharma was concerned about Ms Michalopoulos working from home without approval, but Ms Michalopoulos says that she had approval for this as she was “on-call” for another system, and for this purpose she had been provided with a Tax Office lap top computer and a mobile telephone.
Ms Michalopoulos took annual leave from 7 to 17 September[14]. On 16 September Mr Sharma approved an extension of leave, as Ms Michalopoulos required more time to complete some home renovations.
[14] Exhibit R5.
On 24 August and 27 September 2010 Ms Michalopoulos consulted her treating doctor and the Doctor’s clinical notes do not contain any express reference to issues of stress at work[15]. In each case, she was certified unfit for work for a short period, but the cause of the incapacity for work is not specified[16].
[15] Exhibit R4.
[16] Exhibit R9; Exhibit R8, Attachment 17 refers.
Mr Sharma left the TRDB section to take up another appointment and he was replaced by Walter Divissi. I am unable to determine with certainty when this occurred. Mr Sharma informed me that he left the section in September, but Mr Hijazi’s evidence is that he did so in November 2010. Mr Divissi was not called and there is no direct evidence from him concerning Mr Sharma’s departure or Ms Michalopoulos’ performance. Nevertheless, Mr Hijazi gave evidence that when he raised Ms Michalopoulos’ performance with Mr Divissi in the latter part of 2010, Mr Divissi informed him that there was no issue of concern. I note the entries in Mr Hijazi’s Events Diary in Exhibit R8 that are attributed to “Walter”.
In October 2010, David Butler, Second Commissioner in the Tax Office presented Ms Michalopoulos with a Certificate of Appreciation “In recognition of your contribution to the Change Program Income Tax Release”[17].
[17] Exhibit A5.
Ms Michalopoulos says that the problems with Mr Dhawan persisted and she raised her concerns about being bullied by him and by Mr Sharma with the human resources section of the Tax Office. On or about 26 November 2010 Ms Michalopoulos discussed the alleged bullying with Ms Linda Choi, a Harassment Contact Officer[18]. Ms Michalopoulos’ evidence is that Mr Dhawan, Mr Sharma and Mr Hijazi perceived her to be the problem. The evidence of Mr Sharma, Mr Hijazi and Ms Choi tends supports this conclusion.
[18] Exhibit A12, page 1.
On 22 December 2010, Ms Michalopoulos consulted her treating general practitioner who recorded “stress at works [sic] ATO”[19].
[19] Exhibit R4, clinical note, 22 December 2010.
On or about 22 December 2010, a member of Ms Michalopoulos’ team, Son Do, made a complaint against her to Mr Divissi[20]. Mr Divissi discussed this with Ms Michalopoulos on 23 December[21].
[20] Exhibit R8, Attachment 18.
[21] Exhibit R8, entry attributed to Walter, 23 December 2010.
On 23 December 2010 and 10 January 2011, Ms Michalopoulos consulted Ms Choi about the alleged bullying[22].
[22] Ibid, pages 1 and 2.
On 24 December 2010, Ms Michalopoulos lodged an Incident Report Form[23] relating to an incident on 17 December 2010 involving Mr Dhawan[24].
[23] T6 and Exhibit A9.
[24] Exhibit A3, page 6.
On 5 January 2011, Ms Angie Burden, and Early Intervention Officer in the Tax Office, referred Ms Michalopoulos to Medibank Health Solutions for assessment in relation to her complaints of work stress. On 10 January 2011, the assessment was carried out by Ms Karen Woods, a rehabilitation consultant and psychologist. Ms Woods reported the history given by Ms Michalopoulos and that testing revealed moderate levels of depression and stress and extremely severe levels of anxiety[25]. She made a number of recommendations, including in relation to the need for psychological support.
[25] Exhibit R2, pages 4-5.
On 17 January 2011, Ms Michalopoulos consulted Mr John Cameron, a psychologist, who provided a report[26]. Mr Cameron set out the history given by Ms Michalopoulos and diagnosed anxiety and depression.
[26] Report by Mr Cameron, 21 April 2012. I note that this report was not formally exhibited during the hearing, even though Mr Cameron was examined on it. It is squarely before the Tribunal and will be labelled Exhibit A13.
On 18 January 2011, Ms Michalopoulos consulted Dr Michael Cameron, treating general practitioner. Dr Cameron produced a report[27] and clinical notes[28], and reported a diagnosis of anxiety. The Doctor certified that she was suffering from anxiety and stress as a result of workplace conflict, and she was unfit for work[29].
[27] T27.
[28] T30 and Exhibit R4.
[29] T7.
On 18 January 2011, Ms Michalopoulos lodged a claim for compensation[30].
[30] T9.
Her claim was rejected by primary determination[31] and on reconsideration[32] by Comcare. Ms Michalopoulos applied for review.
[31] T31.
[32] T40.
Disease
At the outset of the hearing, I was informed by Mr David Richards, counsel for Comcare, that there is no dispute that Ms Michalopoulos suffers from a ‘disease’ under s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), being an Adjustment Disorder with Mixed Emotional Features (the Disorder) to which her employment contributed to a significant degree. Having reviewed the evidence, it appears to me that this is correct, and I so find.
The remaining issues for determination are whether Ms Michalopoulos suffered the Disorder “as a result of reasonable administrative action undertaken in a reasonable manner in respect of her employment”[33]. If she did, the Disorder will be excluded as an ‘injury’ for the purposes of the Act by operation of s 5A(1).
[33] Safety, Rehabilitation and Compensation Act 1988, s 5A(1)
Is the disease excluded?
The Respondent’s Statement of Facts Issues and Contentions dated 8 June 2012 sets out four factors that were contended as exclusionary under s 5A:
(a)“6.1 that [Ms Michalopoulos] drop one of her corporate roles”;
(b)“6.2 splitting the Applicant’s team into two to manage personality conflicts”;
(c)“6.3 informally counselling the Applicant over working from home without permission” and
(d)“6.4 PDA counselling session identifying needed improvements in the Applicant’s performance and subsequent failure to be trained as an EL2”.
At the hearing, Comcare informed me that the only actions pressed within the terms of the s 5A exclusionary proviso relate to Ms Michalopoulos’ under-performance. The hearing proceeded on that basis.
In Comcare’s submission, administrative actions taken in respect of under-performance by Ms Michalopoulos were operative factors that significantly contributed to the injury she has claimed. Comcare asserts that Mr Sharma raised concerns about her performance soon after she came under his supervision on 16 February 2010. Comcare says that Ms Michalopoulos denied that she was under-performing in her new role and she misconceived Mr Sharma’s actions to address this as bullying and harassment. The misconception, so the argument goes, can be seen in the histories recorded by Dr James Hundertmark, a consultant psychiatrist, Dr Kipling Walker, another consultant psychiatrist, Dr Cameron, Ms Woods and Mr Cameron. It can also be seen, Comcare says, in Ms Michalopoulos’ own evidence and in the documents she attached to her compensation claim.
Comcare says that the performance management actions taken by Mr Sharma, in the form of emails requesting particular reports or information, meetings relating to Ms Michalopoulos’ performance agreement, and actions taken to reduce her responsibilities in the period from April 2010 to January 2011 are reasonable administrative actions undertaken in a reasonable manner in respect of Ms Michalopoulos’ employment. For this reason, Comcare says that the exclusionary provisions of s 5A apply and, even though Ms Michalopoulos’ Adjustment Disorder is an ailment that was significantly contributed to by circumstances in her employment, it is excluded as an ‘injury’ for the purposes of the Act.
While these submissions have some force, for the exclusionary provisions of s 5A to be enlivened it is not sufficient to simply adduce evidence supporting the proposition that Mr Sharma took certain actions in relation to Ms Michalopoulos’ performance. For the exclusion to operate, both limbs of the exclusionary proviso under s 5A must be satisfied. It must be established by evidence that Ms Michalopoulos suffered the Adjustment Disorder ‘disease’ “as a result of” Mr Sharma’s actions taken in respect of her alleged under-performance (or any other actions), and it must be established that those actions are “reasonable administrative action taken in a reasonable manner in respect of her employment”.
Comcare’s case falters on both points.
“… as a result of …”
Comcare says that Ms Michalopoulos either misconstrued or misrepresented actions taken by Mr Sharma and Mr Hijazi in relation to under-performance as bullying or harassment. Specifically, Comcare says that the feedback Dr Hundertmark identified as significantly contributing to Ms Michalopoulos’ Adjustment Disorder included actions taken by Mr Sharma in respect of her under-performance in the period from March to September 2010.
The phrase “as a result of” in the context of s 5A(1) refers to a relationship of cause and effect with emphasis on the result, or effect, rather than the proximity of the cause[34]. The relationship is more direct than one in which a result may be said to arise from or be in relation to a cause – the test requires that the claimed injury is an effect that is suffered as a result of administrative actions of a particular kind being taken. While the phrase “as a result of” is not qualified by any express measure of contributory degree in s 5A(1), Comcare contends that the degree of contribution required to enliven the exclusionary proviso should be construed as equivalent to the contributory degree required to establish the existence of a ‘disease’ under s 5B(1). This construction has been adopted by the Tribunal without controversy in previously settled cases[35], although the remarks of the Tribunal in Re Wiegand and Comcare[36] and of Perram J in Comcare v Caldwell[37] may suggest that some uncertainty persists. It is not necessary for me to address any issue of construction on this point, as the language of the section is clear and it may be applied without ambiguity to the facts of this case.
[34] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, per McHugh J at [38].
[35] See Re Beasley and Comcare [2012] AATA 411, for example, following Re Carpenter and Comcare (2010) 116 ALD 190.
[36] [2010] AATA 790 at [70]-[72], Downes J presiding.
[37] [2008] FCA 2015 at [5].
The medical evidence all goes one way.
The evidence of Dr Hundertmark does not identify action taken in respect of under-performance as a significant or operative factor in the onset or progress of the Adjustment Disorder he diagnosed. The cause of the Disorder is clearly stated to be “stressors in the workplace, namely alleged harassment from her director and a contractor on her team”[38]. This is consistent with the evidence of Dr Cameron[39], treating general practitioner, and Mr Cameron[40], treating psychologist.
[38] T23 folios 144-145; medical reports by Dr Hundertmark dated 30 March 2012 and 16 May 2012 in Exhibit R1 refer.
[39] T27 folios 164-165.
[40] Exhibit A13.
Dr Hundertmark reported that –
Ms Michalopoulos first suffered from prominent symptoms of anxiety and depression in August 2010 when she took time [three weeks] away from the workplace.[41]
On this point, it is clear that Ms Michalopoulos was absent from work for almost three weeks in September 2010, rather than in August.
[41] T23 folio 145.
Comcare obtained two supplementary reports from Dr Hundertmark, in which the Doctor clarified his assessment that the refusal of annual leave, action to split Ms Michalopoulos’ team into two, and dropping corporate roles were not stressors that significantly contributed to the Adjustment Disorder he diagnosed[42]. The particular stressors that he considered significantly contributed to the Disorder are clarified in his supplementary report on 30 March 2012[43] –
In summary, Ms Michalopoulos stated that the contractor Ashok was at times raising her [sic – his] voice and running her down and also undermining others in the team. She also indicated that the director did not support her in her role and continued to place her in a double-bind position by providing her with inconsistent feedback on an ongoing basis.
[42] Exhibit R1.
[43] Exhibit R1, report dated 30 March 2012, pages 4-5.
On 4 May 2011, Dr Walker reported that:
Ms Michalopoulos presents with symptoms of anxiety and depression, in the context of perceived mistreatment at work. She complains about a contractor she worked with, and complains that her EL2.1 and EL2.2 ignored her issues with the contractor[44].
Dr Walker does not identify action relating to under-performance as a factor in the onset or progress of her symptoms. He reported that Ms Michalopoulos suffered from panic attacks from “mid 2010”[45].
[44] Exhibit R3, page 6.
[45] Ibid, page 4.
On 17 January 2011, Ms Woods reported that:
[Ms Michalopoulos] had been experiencing stressors at work for over 10 months. Reported stressors include inappropriate behaviour from another staff member and a lack of support by management when incidents were brought to their attention[46].
Ms Woods does not identify action relating to under-performance as a significant factor in the onset or progress of the psychological symptoms she identified. She sets out a detailed history, including that –
As Ms Michalopoulos had worked as a Team Leader previously, she stated she assumed her duties would be the same, such as to manage staff issues and work flows in the area. However, during a Professional Development Agreement review in August 2010, Ms Michalopoulos was told by her Director that she “did not have the skills” for the job. However, Ms Michalopoulos said the Director did not offer any advice on how she could improve her performance, nor would he provide full details of how he wanted tasks to be completed.[47]
[46] Exhibit R2, page 1.
[47] Ibid, page 2.
Much was said about the significance of this passage during the hearing, but when it is read in context, it does not indicate that any action taken in relation to under-performance was an operative factor in Ms Michalopoulos’ psychological condition, but rather that her self-esteem was undermined by unsupportive and unclear supervisory arrangements. This is consistent with the evidence of Dr Hundertmark, Dr Walker, Dr Cameron and Mr Cameron. I note that Ms Choi gave evidence that Ms Michalopoulos did not raise any issues relating to performance when discussing her allegations of bullying and harassment in November and December 2010[48].
[48] Exhibit A12.
Dr Hundertmark, Dr Walker, Dr Cameron and Ms Woods were not called to give oral evidence. Mr Cameron gave evidence that he did not record and he did not recall Ms Michalopoulos complaining about actions relating to under-performance, and he did not consider this to be an operative causal factor when he first assessed and treated her in January 2011. Even so, he conceded that if it was raised he may have forgotten about it. He stood by his report, in which he observed that “subsequent [lowered] performance… is actually a symptom of the initial problem”[49].
[49] Exhibit A13, page 2.
I note that work stress is not expressly noted in Ms Michalopoulos’ contemporaneous medical records from June to November 2010. It follows that the evidence of Dr Hundertmark, Dr Walker, Dr Cameron, Mr Cameron and Ms Woods concerning the onset of symptoms of anxiety in or about mid-2010 relies on Ms Michalopoulos’ account.
On balance, if one accepts her account as true, a clear and consistent picture emerges from the medical evidence: Ms Michalopoulos suffered increasing symptoms of anxiety and depression from mid-2010 as a result of alleged bullying and harassment by a co-worker in circumstances where she perceived that she was not supported by her managers and her complaints of bullying were not addressed. Additionally, it is likely that unclear reporting arrangements and inconsistent feedback from her managers contributed to the onset or progress of her Disorder. As will appear, I am satisfied that Ms Michalopoulos’ account is reasonably reliable. I accept her evidence and the evidence of Dr Hundertmark, Dr Walker, Dr Cameron, Ms Woods and Mr Cameron on these points, and so find.
Credit
Comcare urged me to find that Ms Michalopoulos is not a reliable witness, asserting that she tailored her evidence to support her claim and when faced with contradictory proof, she conveniently changed her evidence. This, Comcare asserts, is most telling in respect of issues of under-performance and absences from work.
In support of its submission, Comcare pointed to inconsistencies in Ms Michalopoulos’ evidence and accounts over time, such as informing Dr Hundertmark that she “had to take time away from the workplace for three weeks [in August 2010]”[50], when this was not correct. I note that the leave records in Exhibit R5 establish that Ms Michalopoulos took 13 days off work in September 2010, not in August. Errors of this kind may be accepted as faults of memory that may readily be addressed by reference to more contemporaneous accounts or records – the error is one of detail, not substance. Having carefully heard and assessed Ms Michalopoulos’ evidence, I accept that her oral evidence during the hearing may be less accurate than more contemporaneous accounts she has given, but this fault of memory with the effluxion of time does not diminish the clear and consistent basis of her evidence.
[50] T23 folio 145.
Comcare says that Ms Michalopoulos changed her evidence in respect of under-performance during the hearing; but close examination of what she said does not suggest that her evidence is unreliable. Her evidence-in-chief was that there was no action taken in respect of under-performance and Mr Sharma rated her performance as satisfactory during the end of cycle performance appraisal in August 2010; she said that “I felt OK about the performance assessment”[51]. Under cross-examination she accepted that she may have informed Mr Cameron that Mr Sharma told her that she did not have the skills for the job and she accepted that Mr Sharma had raised issues with her concerning the production of certain reports and that, for him, this may have been a performance issue. This does not render her evidence unreliable. The present evidence, on balance, does not establish that Mr Sharma, or Mr Hijazi, took administrative action in respect of Ms Michalopoulos’ employment to address her alleged under-performance in carrying out her duties as a team leader. Mr Sharma’s actions, in relation to Infra reporting for example, are not of that character.
[51] Oral evidence.
Comcare urged me to prefer the evidence of Mr Sharma and Mr Hijazi over that of Ms Michalopoulos. But close examination of the evidence does not bear this submission out.
Mr Sharma provided a written statement dated 11 April 2012[52]. Mr Hijazi provided a response to Ms Michalopoulos’ compensation claim on 24 March 2011[53], as well as a written statement dated 9 March 2012 and an ‘Events Diary’ marked September 2012[54].
[52] Exhibit R6.
[53] T19.
[54] Exhibit R8.
When one considers Mr Sharma’s statement in Exhibit R6 and Mr Hijazi’s document at T19, the apparent and striking similarities between these documents are plain to see. There are many identical passages and a number of the attachments are the same. Emails dated 13 April, 13 May, 23 May and 2 June are held out as evidence of Ms Michalopoulos’ under-performance in respect of Infra reporting. Other relevant documents that point to a different conclusion, have not been included, for example an email Ms Michalopoulos sent to Mr Sharma addressing his request for reports about Infras on 13 April 2010[55]. The interpretation and representation of the documents provided is substantially the same. And yet both Mr Sharma and Mr Hijazi gave sworn evidence each had written their respective statements independently, with their own hand, without consulting the other.
[55] T24 folios 150-156.
When asked to explain the identical passages and attachments, Mr Sharma said that it must simply be “a coincidence”, and he could not otherwise explain the similarities. Mr Hijazi was asked the same question, but he, too, had no explanation, although he noted that he had written his document more than one year before that apparently penned by Mr Sharma, and he had done so when Mr Sharma was overseas.
It is simply inconceivable that the identical passages, attachments, interpretations and omissions are the result of coincidence, and it is disingenuous to hold this out as a serious explanation. It is very clear is that the accounts given by Mr Sharma and Mr Hijazi about the creation of these statements cannot both be true; somewhere in their sworn evidence there is a lie, or perhaps an omission or an error. I accept that Mr Sharma and Mr Hijazi may not have been able (or willing) to provide a cogent explanation, but it is quite clear that the identical passages, attachments, interpretations and omissions are not the product of an accident; they indicate deliberate action taken by Mr Sharma or Mr Hijazi. Who is in error or at fault, whether one or both witnesses, I am unable to determine.
Having reviewed the evidence given by Ms Michalopoulos, Mr Sharma and Mr Hijazi, on balance, I am reasonably satisfied that Ms Michalopoulos is a witness of truth who gave her evidence without obfuscation or guile, despite some failings of memory, whereas there are doubts about the reliability of substantial evidence given by Mr Sharma and Mr Hijazi. Close examination of their evidence raises serious unresolved questions about collusion, inconsistencies and the selective production of documents. These matters go directly to the weight that can properly be given to their evidence on controversial points in the absence of reliable corroboration.
As to Comcare’s assertion that Ms Michalopoulos misconstrued or misrepresented administrative actions taken by Mr Sharma or Mr Hijazi as bullying, this is not made out.
Ms Michalopoulos gave reasonably consistent histories to Dr Hundertmark, Dr Walker, Dr Cameron, Ms Woods, Mr Cameron, Ms Choi, Comcare and the Tribunal at hearing; and those histories do not establish that any action taken in respect of alleged under-performance was on operative factor in the onset or progress of the Disorder. As I have said, I do not accept Comcare’s submission that Ms Michalopoulos is an unreliable witness or that her evidence not be preferred over that given by Mr Sharma and Mr Hijazi. I have found to the contrary.
The present evidence does not establish that Ms Michalopoulos was upset or disturbed by the process or by the results of the performance appraisal in August 2010, even though she may not have agreed with aspects of it. It should be noted that she sent the revised PDA to Mr Sharma on 3 September 2010[56] and said –
Hi Radha,
Updated PDA. I hope that this is closer to what you would like:
[attached PDA file]
Thank you
Dimitra Michalopoulos
[56] Exhibit R8, Attachment 15.
I am satisfied that the information Ms Michalopoulos provided Dr Hundertmark about inconsistent feedback related to the difficulties she encountered as a result of the unclear reporting arrangements within the team she managed, particularly in respect of Mr Dhawan’s behaviour, and to the lack of consistency or clarity in the reports she was asked to provide to Mr Sharma. I do not accept Comcare’s submission that Ms Michalopoulos misconstrued under-performance actions taken by Mr Sharma in the history she provided Dr Hundertmark. That being so, I am reasonably satisfied that Ms Michalopoulos did not suffer the Disorder as a result of any action taken to address alleged under-performance in respect of her employment.
Even if I am wrong on that point, as will appear, I am not persuaded that the actions are within the terms of the exclusionary proviso in s 5A.
It appears that Comcare did not press the point in respect of other actions Mr Sharma took relating Ms Michalopoulos taking leave, requiring Ms Michalopoulos to drop one of her corporate roles, splitting her team and criticising her for working from home without approval. On the basis of Dr Hundertmark’s evidence, it is quite clear that these actions were not operative factors in the onset or progress of the Disorder.
“… reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”
Comcare says that the actions taken by Mr Sharma in respect of Ms Michalopoulos’ under-performance in relation to Infra reporting and other matters are reasonable administrative actions in respect of her employment. Furthermore, Comcare asserts that, when the circumstances are properly considered, the actions were taken reasonably.
It appears that the actions Comcare considers to be exclusionary are meetings and emails in the period from April to September 2010 in respect of Ms Michalopoulos’ performance of duties as a team leader, in relation to Infra reporting for example, and a performance review in August 2010.
The particular actions Comcare pressed in respect of Infra reporting are established by emails between Mr Sharma and Ms Michalopoulos. But, on balance, the evidence as a whole does not establish that these actions were anything other than operational actions in respect of Infra reporting during a period of operational, structural and systemic change. The emails are evidence of on-going operational discussions regarding the production of operational reports by Ms Michalopoulos in the performance of her duties as a team leader. I am satisfied that the actions Mr Sharma took were not administrative actions in connection with a performance appraisal or informal counselling in respect of Ms Michalopoulos’ employment.
It is not correct to construe the term “reasonable administrative action” to include operational actions taken by a supervisor in respect of a subordinate officer’s performance of duties. Requiring an employee to correct errors in his or work, or to reconfigure data into an acceptable format, may relate to under-performance but it does not follow that the requirement for improvement is an administrative action taken in connection with a performance appraisal or informal counselling relating to the person’s employment. More is required. For the exclusion to be enlivened it must be established that the action had an administrative character and it was taken in respect of the employee’s employment rather than the day-to-day operational requirements or the activities undertaken in the performance of duties.
Mr Sharma’s evidence is that he had a number of one-on-one meetings with Ms Michalopoulos in this period to discuss issues of performance, during which Ms Michalopoulos was visibly upset and cried. Mr Sharma thought that he may have had two or three meetings of this kind, but he could not be sure. Ms Michalopoulos agrees that there were a number of one-on-one meetings, but she says that she initiated these to raise and discuss difficulties she was experiencing with Mr Dhawan, as well as her difficulties arising from confused reporting lines and difficulties obtaining the information Mr Sharma required in reports from members of her team. I prefer Ms Michalopoulos’ evidence on this point.
I note that there are no contemporaneous records of when these meetings took place, why and how they were arranged, precisely what was discussed and what actions were initiated or taken as a result. If these meeting were truly administrative actions or informal counselling sessions in respect of perceived under-performance by Ms Michalopoulos, one would expect to find some record of them and, in particular, the precise nature of the under-performance, what was done to address it and arrangements for monitoring Ms Michalopoulos’ progress. But no such contemporaneous records have been adduced.
The evidence of Mr Sharma is that he retained records in respect of Ms Michalopoulos’ performance in separate folders, and he relied on these records when preparing his statement. Mr Sharma attached certain records to his statement. Of these, the only document that expressly addresses performance relates to the performance assessment in August 2010.
Mr Hijazi gave evidence that in March or April 2010 he directed that an Events Diary be maintained in respect of Ms Michalopoulos, following her complaints about Mr Dhawan and as there were issues relating to her performance. If this is correct, one would expect to find records of meetings in which Ms Michalopoulos’ alleged under-performance and her complaints of bullying and harassment were discussed, albeit perhaps informally. But no such records have been adduced and the Events Diary does not refer to allegations of bullying or to under-performance procedures in 2010.
Mr Sharma and Mr Hijazi (and presently Comcare) point to emails dated 13 April, 13 May, 23 May, 2 June, 7 June and 8 June 2010 as evidence that Ms Michalopoulos failed to provide Mr Sharma with reports in respect of Infras. The email dated 13 April 2010 that Mr Sharma sent to Ms Michalopoulos at 12.17pm is in the following terms –
Hi Dimitra,
Could I please have an updated copy of the Infras allocation to staff and their likely date of deployment asap.
Regards
Radha Sharma
This is represented by Mr Sharma, Mr Hijazi and Comcare as the first of Mr Sharma’s actions in respect of Ms Michalopoulos’ alleged under-performance. Apart from the fact that the email does not expressly refer to under-performance and that it has a clear operational focus, the evidence of Mr Sharma does not establish that the email related to under-performance by Ms Michalopoulos – he sent the email to ensure that his requirements were clearly conveyed during a time of change. Even if the email did relate to an issue of under-performance, one would expect to find reference to Ms Michalopoulos’ response to it in the materials provided by Mr Sharma and Mr Hijazi.
It is troubling, therefore, that the email response Ms Michalopoulos send to Mr Sharma on 13 April at 12.32pm, only 15 minutes later, does not appear and is not referred to in Mr Sharma’s statement in Exhibit R6, in Mr Hijazi’s document at T19, in Mr Hijazi’s statement in Exhibit R7 or in Mr Hijazi’s Events Diary in Exhibit R8. Ms Michalopoulos’ email can be found at T24 folios 150 to 156. As can be seen, it attaches three files containing extensive information about the Infras allocated to her team, as requested by Mr Sharma. On 16 April 2010 Ms Michalopoulos sent another email to Mr Sharma on the subject of Infra reporting[57], and this, too, does not appear in the statements of Mr Sharma and Mr Hijazi.
[57] T16 folio 79.
Mr Sharma’s evidence is that he did not receive the report he requested on 13 April and he sent another email, again asking for the report, on 13 May 2010. When pressed on this point, Mr Sharma conceded that he did receive reports from Ms Michalopoulos, but maintained that they were not in the correct format.
The email Mr Sharma sent Ms Michalopoulos on 13 May is in the following terms –
Hi Dimitra,
As discussed, can I please get an updated list of infras with the status/RFCs numbers etc. Most of the infras that you mentioned were raised on 10/5 are already closed, please see updated list that I left on your desk after discussing with Ashok [Mr Dhawan]. ‘D’ means done. Please provide a summary report like open from last week, received this week, deployed, expected deployment, under build etc. Can you target it by 2 PM tomorrow please.
Regards
Radha Sharma
It is quite clear that this email refers to discussions between Mr Sharma and Ms Michalopoulos about Infras in reference to a prior report by Ms Michalopoulos on 10 May. This document is not in evidence, and it is not attached to the statements of Mr Sharma or Mr Hijazi. On this email, it is also quite clear that Mr Sharma discussed related matters with Mr Dhawan without Ms Michalopoulos being present. This supports Ms Michalopoulos’ evidence that Mr Sharma would by-pass her and obtain information directly from members of her team, in this instance from Mr Dhawan. Importantly, the email does not make any express reference to under-performance in connection with a performance appraisal or informal counselling in respect of Ms Michalopoulos’ employment. The clear subject of the email relates to operational reports within the scope of Ms Michalopoulos’ duties as a team leader.
The emails between Ms Michalopoulos and Mr Sharma dated 21 May and 23 May indicate the ongoing nature of the discussions concerning Infra reporting and the refinement of Mr Sharma’s requirements, as specified in some detail in his email on 23 May 2010 –
Hi Dimitra,
Thanks for updating the weekly status report. I’ll update comments about the defects. The issue in relation to the list of Infras and their status with planned deployment schedule is pending for a long time. As we discussed and I suggested in the meeting on Thursday to have two categories ITR related and others and include the summary in the status report. We talked about a lot of paper work but as I mentioned planning, monitoring and status reporting is a part of the governance process. It appears misleading to have 51 open infras. Here is the summary that I captured from the meeting we had with Bob and Vanessa on 19/5/10.
Infras at hand last week
ITR related 12
Deployed 3
Deployed earlier 1
Under build 8
New 3 + 1 waiting infra nos n& bus assessment
Planned deployment 2 by 21/5/10
3 by 31/5/10
1 by 7/7/10
1 by 31/7/10
2 ASAP
Others 3 Case register, Sir, Non-ind auto drop
Planned deployment 33 25/6/10
Total open infras 15 as on 19/5/10
I still think Vanessa’s list + Others if you can add to the list and keep updating it on a regular basis with RFC, date of deployment etc should give you a good picture. You still need to draw up a plan with timelines to monitor your build, review and deployment. I leave it up to you how you want to do it but I would be expecting a plan with expected date of completion etc and a regular update. I would appreciate if you can target Wednesday 26/5/10 please.
Please discuss with me if you need any support or have any issues.
Regards
Radha Sharma
This email makes it quite clear that Ms Michalopoulos was up-dating “the weekly status reports” for Mr Sharma and that there were ongoing discussions about the operational reporting of Infras, which were “pending for a long time”. As can be seen, the detailed specifications Mr Sharma set out on 23 May are different than those set out in his email dated 13 May, and those specifications were not raised at all in his email on 13 April 2010. This email does not expressly raise any issue of under-performance in connection with a performance appraisal or informal counselling in respect of Ms Michalopoulos’ employment.
Mr Sharma’s email on 2 June is in the following terms –
Hi Dimitra,
I’ve yet not been able to get the required summary status report along with a build plan as requested in the email below [email dated 23 May]. I intend to re-allocate this task so as to make it happen. Also referring to the weekly status report dated 1/6/10, can you please include associated mitigation strategies along with risks/issues for your future reports.
Regards
Radha Sharma
As can be seen, this email does not expressly refer to under-performance, although it is quite clear that Mr Sharma had not received a report from Ms Michalopoulos as specified in his email on 23 May.
To my mind, these emails clearly communicate the refinement of reporting specifications by Mr Sharma, culminating in the request made on 23 May that was not complied with in the weekly report Ms Michalopoulos provided on 1 June 2010. The evidence of Mr Sharma and Mr Hijazi that the emails and related meetings are evidence of Ms Michalopoulos’ under-performance in respect of meeting Mr Sharma’s reporting requirements must be treated with caution – when carefully considered the emails appear to address different requirements in respect of different reports, without any express reference to under-performance in connection with a performance appraisal or informal counselling in respect of Ms Michalopoulos’ employment. At the highest, the emails of 23 May, 2 June, 5 June, 7 June and 8 June indicate that Ms Michalopoulos did not satisfy Mr Sharma’s request for a summary status report with a build plan which had been first requested by email dated 13 May and, in consequence, he re-allocated this task to “Phung and Tom”. These are operational issues in respect of Ms Michalopoulos’ duties as a team leader that do not constitute under-performance actions in connection with a performance appraisal or informal counselling in respect of Ms Michalopoulos’ employment.
In Comcare’s submission the under-performance indicated by this evidence was a key reason for Mr Sharma splitting Ms Michalopoulos’ team on 8 August 2010 and rating Ms Michalopoulos’ performance at the three level on 19 August 2010 with the recommendation that she undertake further training[58]. Mr Sharma’s evidence is that Ms Michalopoulos was not performing at the level expected of an Executive Level 1 employee and that the performance rating of three was in the hope that she would improve. Mr Hijazi gave evidence that the team was split following his investigation of Ms Michalopoulos’ complaints about bullying by Mr Dhawan. Mr Sharma, Mr Hijazi and Ms Michalopoulos agree that the assessment rating of three indicates that she was performing competently, at a satisfactory level. Mr Hijazi went further, stating that no decision was taken that Ms Michalopoulos was under-performing and no action was initiated to commence formal performance management processes. That is plainly correct on the present evidence.
[58] T4 folios 20-21.
I note that Ms Michalopoulos was awarded a Certificate of Appreciation in October 2010[59]. It is unusual for an employee who is under-performing at level to receive an award of this kind.
[59] Exhibit A5.
I am reasonably satisfied that the performance review in August 2010 and related documents in September 2010[60] made no finding of under-performance and it did not result in any action being taken in that regard. At the highest, it resulted in recommendations for learning and development, some of which were followed up[61] without being contested by Ms Michalopoulos. I note that Ms Michalopoulos had been seeking Mr Sharma’s approval to undertake team leader refresher training from April 2010[62], contrary to his evidence that she had not.
[60] T19 folio 18.
[61] T19 folio 131.
[62] T16 folio 79.
The actions taken by Mr Sharma must be viewed in the context in which they occurred. I am satisfied that the emails and meetings concerning Infra reporting were simply actions in relation to work duties in the normal course of business during a period of significant restructuring, operational reconfiguration and systemic change. These are not actions taken in connection with a performance appraisal and they are not consistent with informal counselling in respect of Ms Michalopoulos’ employment. There are no records of the one-on-one meetings Mr Sharma referred to in his evidence. If these were truly meetings to address under-performance, one would expect Ms Michalopoulos to have been aware of this and to find some record, perhaps in the form of notes, about the under-performance issue to be addressed, the options or strategies discussed, the actions agreed to rectify the under-performance, and the arrangements to monitor Ms Michalopoulos’ progress. But no such records exist. One is left with the emails and the evidence of Ms Michalopoulos, Mr Sharma and Mr Hijazi. I prefer the evidence of Ms Michalopoulos for reasons already stated.
Having regard to the principles set out in Commonwealth Bank v Reeve[63], I am reasonably satisfied that the meetings and emails to which reference has been made concerning Infra reporting are not administrative actions taken in respect of Ms Michalopoulos’ employment. Even though the actions may have been specific to Ms Michalopoulos, they are simply operational actions taken in respect of her duties as a Team Leader in the TRDB section. The actions are not ‘administrative’ in nature and they are not taken in respect of Ms Michalopoulos’ ‘employment’[64]. The actions concern the production of workload reports according to varying specifications set by Mr Sharma.
[63] [2012] FCAFC 21.
[64] Commonwealth Bank v Reeve [2012] FCAFC 21, per Tracey and Rares JJ at [30]-[31].
The proposition contended for by Comcare that these are within the meaning of s 5A(2)(e), being “anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d)” is not made out. The evidence of Mr Sharma is not sufficient to establish that the emails and meetings in respect of Infra reporting were in connection with “a reasonable appraisal of the employee’s performance” or “a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment”. An appraisal of an employee’s performance and any action taken in connection with it is unlikely to be assessed as reasonable if the employee in question does not know that it is happening. The only appraisal of Ms Michalopoulos’ performance that fits this description is the performance review undertaken in August 2010. There is not sufficient evidence for me to find that the actions Mr Sharma took in respect of Infra reporting were taken “in connection with” the August 2010 performance appraisal.
The proposition that Mr Sharma’s actions in respect of Infra reporting are within the meaning of s 5A(2)(b), in relation to counselling action, must be rejected for the simple reason that the present evidence is not sufficient to establish that the actions taken were in respect of Ms Michalopoulos’ employment. As I have said, on the present evidence, it is probable that the actions were operational actions taken in respect of Ms Michalopoulos’ duties.
Thus the actions Mr Sharma took in respect of Infra reporting are not within the scope of the exclusionary proviso.
The performance review undertaken in August 2010 is within the meaning of “reasonable administrative action” under s 5A(2), but the medical evidence of Dr Hundertmark, Dr Walker, Dr Cameron, Mr Cameron and Ms Woods, to which I have referred, does not establish that Ms Michalopoulos suffered the Adjustment Disorder as a result of this action.
As to the period from September 2010 to January 2011, when Ms Michalopoulos lodged her compensation claim, there does not appear to be any dispute that actions taken by Mr Divissi or Mr Hijazi are not within the terms of the exclusionary proviso in s 5A. Having reviewed the evidence, this is plainly correct.
The evidence does not establish, on the balance of probabilities, that Ms Michalopoulos suffered the Disorder as a result of action taken in connection with a performance appraisal or informal counselling in respect of her employment, or any other action that may be within the scope of the exclusionary proviso set out in s 5A.
It follows that the exclusionary proviso in s 5A is not enlivened and Ms Michalopoulos Adjustment Disorder disease is not excluded as an injury for the purposes of the Act.
Conclusion
The decision under review must be set aside. I am reasonably satisfied that Ms Michalopoulos suffered an injury in the form of a disease, being an Adjustment Disorder, in relation to which, under s 14, Comcare is liable to pay her compensation.
It remains to determine the date of the injury under the terms of s 7(4). The weight of the medical evidence is that Ms Michalopoulos suffered from symptoms of anxiety and depression that is attributable to her employment from mid-2010. I accept that this signifies the presence of an impairment at that time. On the evidence of Dr Hundertmark, these symptoms were first prominent when Ms Michalopoulos took three weeks’ leave in August 2010. The evidence establishes that this period of leave was in September 2010 and not August. Thus, I find that the date of Ms Michalopoulos’ Adjustment Disorder injury is 6 September 2010, the day immediately prior to the period of leave that commenced on 7 September 2010.
Ms Michalopoulos raised a number of matters in submissions that I cannot squarely address. It is appropriate to observe that there are a number of unresolved questions about the Events Diary and about Mr Hijazi’s related directions and actions – it appears that information about Ms Michalopoulos was collected, reported, compiled and presented without the material being placed on an official or personnel file, and without her knowledge. There are also unresolved questions about the manner in which Mr Hijazi and Mr Sharma responded to and apparently investigated Ms Michalopoulos’ complaints of bullying and harassment under the various instruments, directions, instructions, policies and procedures that were in force in the Tax Office at the time. On the present evidence it appears, at least, that she has not been provided with procedural fairness and natural justice; but these are matters for the Tax Office and others to consider.
Ms Michalopoulos represented herself in the proceedings. She was an executive level employee of the Tax Office with 25 years of experience, who received an Award for Excellence in October 2009 and two Certificates of Appreciation, most recently and relevantly in October 2010[65]. Her claim arises from allegations of bullying and harassment, primarily by Mr Dhawan but also by Mr Sharma, in circumstances where she alleged that Mr Sharma and Mr Hijazi failed to address her complaints and failed to provide her with appropriate support. There can be no question that Comcare was squarely on notice of the nature of her claim and the allegations she pressed in relation to Mr Dhawan, Mr Sharma and Mr Hijazi from the outset. The evidence of Mr Sharma and Mr Hijazi is of pivotal importance to Comcare’s assertions in respect of the under-performance issues that are said to enliven the exclusionary proviso in s 5A. The specific issues pressed by Comcare require Ms Michalopoulos’ evidence to be weighed against that given by Mr Sharma and Mr Hijazi. Rightly or wrongly, Mr Sharma and Mr Hijazi are both the subject of complaints by Ms Michalopoulos. It is quite clear that the reliability and credit of these witnesses is in issue.
[65] Exhibit A5.
Comcare is legally represented by a firm of solicitors and by counsel. And yet, the striking similarity of Mr Hijazi’s statement at T19 and Mr Sharma’s statement in Exhibit R6 appears to have gone unnoticed until I raised it at the commencement of the hearing. It clearly raises an issue of credit. How this was over-looked is mystifying and a matter of concern.
The processes Comcare applied when providing instructions in this case, and the content of advice it obtained from its retained solicitors and counsel, are matters for it. But to my mind these aspects of the case raise issues for Comcare to reflect upon.
I certify that the preceding 104 (one-hundred-and-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. .................................[sgd]...................................
Associate
Dated 3 December 2012
Date(s) of hearing 19 and 20 November 2012 Date final submissions received 22 November 2012 Applicant In person Counsel for the Respondent Mr D. Richards Solicitors for the Respondent DLA Piper Australia
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