Don Nufable and Comcare
[2012] AATA 82
•14 February 2012
ADMINISTRATIVE APPEALS TRIBUNAL )
)No. 2011/0198
GENERAL ADMINISTRATIVE DIVISION )
Re: Don Nufable
Applicant
And: Comcare
Respondent
TRIBUNAL: Deputy President J W Constance
DATE: 29 February 2012
PLACE: Melbourne
CORRIGENDUM TO DECISION [2012] AATA 82
Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 the Tribunal directs the Registrar to amend the decision dated 14 February 2012, by deleting paragraph 59 and inserting in its place:
59.Under s14(1) of the Act Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.
.....[sgd J W Constance]..........
Deputy President
[2012] AATA 82
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0198
Re
Don Nufable
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 14 February 2012 Place Melbourne The reviewable decision denying liability to compensate Mr Nufable in respect of depression and anxiety related symptoms, made by Comcare on 29 November 2010, is affirmed.
............................(sgd J W Constance)...............................
Deputy President J W Constance
COMPENSATION - depression and anxiety - whether or not the conduct which resulted in the disease suffered by the employee was reasonable administrative action taken in a reasonable manner - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7(4), 14(1)
Sami and Telstra Corporation Limited [2012] AATA 41
REASONS FOR DECISION
INTRODUCTION
1.Mr Nufable commenced working for the Child Support Agency as a Customer Service Officer in April 2009. His duties included dealing with telephone enquiries and accessing and recording information on a computer. Prior to commencing with the Agency he had been employed in the Australian Taxation Office for four years in a position which included telephone contact with taxpayers.
2.Mr Nufable claims that in April 2010 he suffered depression and anxiety related symptoms caused by his employment by the Agency.
3.The question to be decided in this application is whether Mr Nufable is entitled to compensation in respect of this condition under the Safety, Rehabilitation and Compensation Act 1988(Cth). He is not entitled to compensation if the condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. The definition of an injury which is compensable under the Act excludes a condition suffered in such circumstances.
4.Comcare has decided that it is not liable to compensate Mr Nufable. For the reasons which follow this decision will be affirmed.
EVIDENCE AND FINDINGS OF FACT
5.For the first six months of employment Mr Nufable was on probation. For the first four months he was engaged in classroom based training which involved a group of approximately 30 people; it was followed by two month’s “on-the-job” training.
6.The evidence of Mr Nufable as to the events which occurred in his workplace between the beginning of April 2009 and the time he took extended leave in July 2010 was confused and his memory of events was poor. On the other hand the evidence given by Mr Nufable’s fellow-employees called by Comcare was clear and detailed. I accept the evidence of Ms Rulla, Mr Atkins, Mr Stanley and Ms Carey and I make findings of fact in accordance with their evidence which follows.
7.I am satisfied of the facts found on the balance of probabilities.
Ms Rulla’s evidence
8.Ms Rulla was Mr Nufable’s team leader and direct supervisor during the whole of his probation.
9.Within the first two weeks of training Ms Rulla spoke to Mr Nufable and advised him of a complaint by the lead trainer that Mr Nufable was disruptive during the class sessions and that he appeared disinterested in the training material. She informed him that he needed to be aware of his surroundings and the learning styles of others. On 3 June 2009 Mr Nufable was advised by Ms Rulla, that his manner of speaking to other members of his training group was inappropriate.
During the period of Mr Nufable’s probation Ms Rulla received a number of complaints from his fellow-employees and from the Agency’s customers concerning his work performance and behaviour.
Ms Rulla regularly sat with Mr Nufable to review his work and to provide him with additional support in performing his tasks. She arranged for three other officers to assist with Mr Nufable’s training on a “one-on-one” basis.
As a result of Mr Nufable’s performance and behaviour he was placed on a Performance Improvement Plan for the period 18 August 2009 to 29 September 2009. At the commencement of the plan Mr Nufable was still on probation.
The plan was set out in a document signed by Mr Nufable. It recorded the underperformance issues which had been identified and discussed.[1]
[1]Exhibit R1, attachment RR4.
Ms Rulla met with Mr Nufable on 2 September 2009 to review his performance under the plan. At this meeting Ms Rulla informed Mr Nufable that he had not met the required standards in relation to his manner of dealing with customers by telephone. At the conclusion of the meeting Mr Nufable acknowledged that he needed to improve his performance.
A second review meeting between Ms Rulla and Mr Nufable was held on 9 September 2009. At this meeting Mr Nufable was told that “there had been a number of telephone calls that he had managed extremely well and that he had shown significant improvement in that regard.”[2]
[2] Exhibit R1, paragraph 11.
A final review meeting was held on 25 September 2009. Ms Rulla advised Mr Nufable that he was satisfactorily meeting the required capabilities of his level. The Performance Improvement Plan was signed off as having been successful.
In October 2009 Mr Nufable completed his probation and his employment was continued. Shortly after this Ms Rulla received a number of complaints regarding Mr Nufable’s performance.
On 26 November 2009 a meeting was held between Ms Rulla, Mr Nufable and Ms Rulla’s Manager, Mr Atkins. At this meeting Mr Nufable’s performance and his request for a transfer to the Agency’s Brisbane office were discussed. Mr Nufable was given examples of his failure to follow correct procedures and his providing customers with incorrect information. He was advised that his performance needed to improve before his request for a transfer could be considered. Mr Nufable was advised further that a Getting Back on Track Plan would be implemented in respect of his performance.
On 10 December 2009 Ms Rulla received an email from Mr Nufable requesting the inclusion of further information in the Getting Back on Track Plan.[3]
[3] Exhibit A3.
A meeting to discuss the implementation of the Getting Back on Track Plan was held on 15 December 2009. It was attended by Mr Nufable, two union representatives on his behalf, Ms Rulla and two members of her management team. Mr Nufable required that two documents (a Performance Agreement Record and an Individual Development Plan) be completed before the Plan was implemented. It was agreed that Ms Rulla and Mr Nufable would work together to finalize the documents requested.[4] The documents were completed on 17 December 2010.[5]
[4] Minutes of this meeting appear in Exhibit T1 pp.58-60.
[5] Exhibit T1, document T31; transcript 13.12.11 p.27.
A Performance Agreement Record is a generic document which lists the Agency’s expectations as to the performance of a person in a particular position. The Individual Development Plan is a document in which an employee records his or her plan for development of his or her performance in the position.[6]
[6] Statement of Ms Carey, Exhibit R2 p.3.
On 24 December 2009 Ms Rulla ceased to be Mr Nufable’s Team Manager as she moved to another position.
Mr Atkins’ evidence
In a statement dated 28 October 2011 Mr Atkins stated in part:
I am aware that the Applicant has asserted that he was placed on a PIP instead of a Work Improvement Plan (WIP) while he was on probation. I recall that the CSA was in the process of developing its performance management processes at the time that the Applicant was placed on a PIP. Whilst the plans are different in that they have a different title, the intent is the same in that they are implemented to formalise agreements between the Team Leader and the employee in respect of what behaviours the employee needs to improve.[7]
[7] Exhibit R9.
Mr Atkins held the position of Service Manager from January 2009 until November 2009 and was Ms Rulla’s supervisor during that time.
Back on Track Plan
A Back on Track Plan was signed by Mr Nufable and Mr Polemi (Acting Team Leader) on 8 January 2010.[8] A Back on Track Plan is a document which is required to be completed “where the employee is not performing to a satisfactory level”.[9]
[8] Exhibit T1, pp.61-69.
[9] Exhibit T1, p.61.
Mr Stanley’s evidence
Mr Stanley was Mr Nufable’s Team Leader from 25 January 2010 until 13 April 2010.
On 4 February 2010 Mr Stanley met with Mr Nufable. This meeting was arranged at the request of Mr Nufable to discuss his progress under the Getting Back on Track Plan. At this meeting Mr Stanley explained his expectations as Team Leader and advised Mr Nufable that he would arrange for him to be observed when speaking to clients, following which a formal review meeting would be conducted and feedback would be provided.
A formal review meeting was held on 17 February 2010 between Mr Nufable and Mr Stanley. Mr Stanley provided to Mr Nufable detailed advice as to the observations of his conduct and informed him that he was not meeting the standards required of a Customer Service Officer at his level. It was agreed that further training would be provided to Mr Nufable. Following this meeting Mr Nufable undertook further training by sitting with three experienced officers and listening to the manner in which they spoke to clients.
In his statement dated 3 November 2011 Mr Stanley said:
There was then a slight improvement in the Applicant’s performance and behaviour as the number of complaints made against him had reduced. I believed that the informal performance management approach was working as the Applicant appeared to be happy and seemed to respond well to this approach. I continued to have periodic informal discussions with the Applicant in which I encouraged him to continue to focus on his customer service skills.[10]
[10] Exhibit R6, paragraph 10.
On 11 March 2010 the Agency agreed to Mr Nufable’s request that he have flexible working hours and thereafter he worked four days per week.
During March 2010 Mr Stanley received further complaints as to Mr Nufable’s behaviour. Mr Stanley met with Mr Nufable on 17 and 19 March 2010 and explained to him that his conduct on the occasions complained of was not acceptable.
Subsequent routine observation of Mr Nufable’s conduct on the telephone showed that he was not meeting the standards required of his position in that he was giving incorrect information and was failing to follow standard procedures.
On 13 April 2010 Mr Stanley met with Mr Nufable. On this occasion Mr Stanley provided further information to Mr Nufable as to his failure to meet the standards required of his position. Mr Nufable was given a document setting out details of the conduct discussed and offered the opportunity to respond. Mr Nufable did not take this opportunity. Mr Nufable was told also that the period of his Getting Back on Track Plan would be extended by three months. At the conclusion of this meeting it was agreed that Mr Nufable would work with Ms Carey in order to make a “fresh start”. Ms Carey did assist Mr Nufable with his work. The Plan was not extended.
Ms Carey (nee Mohren)’s evidence
Ms Carey was appointed Acting Team Leader of Mr Nufable’s team on 12 April 2010.
Following the meeting of 13 April 2010 Mr Nufable took personal leave of one week.
On 22 April 2010 Mr Nufable requested that the decision to extend the Getting Back on Track Plan be reviewed by the Australian Public Service Commission.[11] At a meeting on 27 April 2010, attended by Mr Nufable, his support person, Ms Carey and her Assistant Operations Manager (Ms Pito), it was agreed that the Plan would be finalised with a “no result” and a new Plan put in place to allow Mr Nufable to make a fresh start. It was agreed further that a new Performance Agreement Record and a new Individual Development Plan would be prepared. Mr Nufable said that in future he wished to have correct procedure followed.
[11] Exhibit A17.
On 29 April 2010 Ms Carey met with Mr Nufable and his support person. Mr Nufable told Ms Carey that he agreed with the expectations of him set out in Performance Agreement Record. He agreed also to complete the Individual Development Plan by the end of the following day which he did.[12]
[12] A copy of the minutes of this meeting is at p.158 of Exhibit T1.
On 13 May 2010 another meeting was held at which Ms Pito congratulated Mr Nufable on having completed the Performance Agreement Record and the Individual Development Plan so quickly and advised him that a Getting Back on Track Plan would not be implemented at that stage. Mr Nufable again requested that he be transferred to Brisbane. Ms Pito advised him that such requests could take several months to finalise and required negotiations between the two offices concerned.
In her statement of 27 October 2011 Ms Carey said:
… I recall one occasion on 19 May 2010 when I pulled the Applicant aside to address an urgent performance issue. I told the Applicant that a meeting would be held on 25 May 2010 to implement a Getting Back on Track (GBOT) plan because it had been brought to my attention by another CSO that he had made negative remarks about the CSA, that the general tone of his conversations with customers had not been professional and that he had been dancing at his desk. The Applicant replied ‘no, no, no’ in a dismissive tone, so I asked if he was disputing the allegations, to which he stated that he would neither confirm nor deny them. The Applicant stated that, pursuant to HR Policy ‘Managing Underperformance’, he would not sign a GBOT plan due to his stress levels and that he did not have to. I told the Applicant that I was not aware of any such right and he said that he would show me where it was written, but he never did.[13]
[13] Exhibit R2, paragraph 14.
Shortly prior to 20 May 2010 Mr Nufable was informed that telephone observations of the whole team would commence on that day. He advised Ms Carey that he was again feeling victimised by the Agency, that he was feeling stressed and that he may need to take some leave.
On 28 May 2010 Mr Nufable and his support person met with Ms Pito and Ms Carey. Ms Carey informed Mr Nufable of several complaints which had been made recently concerning his conduct and that he was required to respond to those complaints in writing. It was agreed that Mr Nufable would be provided with details of the complaints and that he would respond in writing within seven days. Mr Nufable acknowledged that he had been provided with evidence of the complaints relating to his work output and agreed to work with Ms Carey in relation to those issues. Mr Nufable was provided with details of the other complaints by email and requested to respond.[14] He informed Ms Carey that he could not respond as he had not been provided with any evidence of the unsubstantiated claims.
[14] Exhibit A18.
Mr Nufable’s evidence
Mr Nufable said that he emailed a response to Ms Carey on 7 June 2010. A copy of the email is exhibit A19. This response provided Mr Nufable’s comments as to the positive aspects of his performance; it did not deal with the specific complaints made against him. In an email of the same date Mr Nufable advised that:
I do not need to respond to any allegation whether apparent or real. I await your findings.[15]
[15] Exhibit A21.
Mr Nufable’s performance was assessed by Ms Carey in June 2010 and was rated as having “met agreed requirements.”[16] In the Performance Agreement and Development Record signed by Ms Carey and Mr Nufable on 22 June 2010 Ms Carey provided the following comment:
Throughout this financial year Don has received some constructive feedback in relation to his performance. Although Don’s initial reaction to feedback was apprehensive, he has improved over the recent months. Don has been given a clear understanding of what is required with respect to business outcomes and behaviours and has been maintaining a satisfactory level of performance over the last few months. I believe that with adequate support mechanisms available to him, Don will continue to improve his technical capability. Don has displayed a passion for HR policy and has expressed his interest in this field of work. [17]
[16] Exhibit A24.
[17] Exhibit A24.
Mr Nufable gave evidence that after he received this assessment he still felt “a little apprehensive” about his employment as he felt that there was some ambiguity in the manner in which he had been treated. However he said that it was a relief to get the rating he was given as he believed he deserved it and he had worked hard for it.[18]
[18] Transcript 12 December 2011 p.87.
On 13 July 2010 a discussion took place between Mr Nufable and Ms Styles (Mr Nufable’s team leader at the time) during which Ms Styles informed Mr Nufable that there had been a complaint concerning his dealing with a client on the telephone. Ms Styles advised Mr Nufable that it was likely that he would be put on another Getting Back on Track Plan.[19] Mr Nufable said that he felt “sick and betrayed” when he was advised of this as at the time he had not been provided with a Performance Agreement and Development Record for 2010-2011. He felt it was becoming routine that he be put on a plan without the necessary preliminary documents being completed.
[19] Transcript 12 December 2011 pp.88-92; Exhibit T1 p.176.
On 14 July 2010 another meeting took place between Mr Nufable and Ms Styles during which they discussed how the plan was to be implemented. Mr Nufable was invited to contribute to the plan. A further meeting to discuss the plan was to be held a week later.[20]
[20] Transcript 12 December 2011 p.93; Exhibit T1 at p.177.
Mr Nufable gave evidence that during the two weeks following 14 July 2010 Ms Styles repeatedly asked him to sign an agreement for the plan but he refused to do so.
On 27 July 2010 Mr Nufable was informed that it was unlikely that his request for a transfer to the Brisbane office would be approved.
On 28 July 2010 Mr Nufable went on leave and did not return to his employment until early May 2011. On his return to work he was posted to a different office.
When asked what it was that caused him to go on leave on 28 July 2010 Mr Nufable replied:
It was just the constant bullying of trying to get me to sign a piece of paper that I don’t believe I should because they haven’t provided any evidence, they haven’t followed the HR policies of – their internal policies about managing underperformance …[21]
EVIDENCE OF HEALTH PROFESSIONALS
[21] Transcript 12 December 2011 pp.96-97.
Dr Urosevic, General Practitioner
Mr Nufable has been a patient of Dr Urosevic since December 2008.
On 14 April 2010 Mr Nufable consulted Dr Urosevic complaining of “job related stress”.[22] Dr Urosevic referred him to Ms Lazarevic, Psychologist.
[22] Exhibit T1, p.112.
Ms Lazarevic, Psychologist
Mr Nufable first consulted Ms Lazarevic on 20 April 2010. Ms Lazarevic diagnosed Mr Nufable as suffering from “depression and anxiety related symptoms … primarily related to communication and relation issues arising between Mr Nufable and his superiors since Mr Nufable was placed on a work related performance management plan…” Ms Lazarevic reported also that “Mr Nufable’s psychological difficulties appear to be currently maintained by ongoing communication and relation difficulties between Mr Nufable and his employment superiors.” [23]
Ms Lazarevic is continuing to treat Mr Nufable.
[23] Exhibit T1, p.124.
Ms Shembrey, Psychologist/Rehabilitation Consultant
Ms Shembrey assessed Mr Nufable on 3 May 2010 at the request of the Agency to determine his needs aimed at maintaining and supporting his return to work. In a report of 14 May 2010 she stated:
It appears that the barrier preventing Mr. Nufable from undertaking his role during his absence was his frustration and difficulty coping with the allegedly mismanaged performance management processes. Whilst it appears that the previous processes have now been abandoned and the appropriate procedure initiated; Mr. Nufable continues to harbour a sense of distrust as a result of his previous experience. [24]
[24] Exhibit T1, p.89.
On 23 October 2010 Ms Shembrey reported:
… Mr Nufable stated that he would not return to work in Melbourne; and would only return to work in Brisbane. Mr Nufable indicated that he had been requesting a transfer to Brisbane for an extended period of time and that his requests had been declined. [25]
[25] Exhibit T1, p.215.
Dr Miller, Consultant Psychiatrist
Mr Nufable was assessed by Dr Miller on 3 August 2010 at the request of the Agency. On 5 August 2010 she reported:
In my opinion, Mr Nufable is suffering stress and anxiety related to unresolved workplace issues. Although he is preoccupied by this I do not believe he is suffering from depression at this time because he is able to pursue and enjoy his dance interest and apply himself. His appetite is normal and concentration at assessment appeared normal.[26]
[26] Exhibit T1, p.195.
Dr Strauss, Consultant & Occupational Psychiatrist
Dr Strauss assessed Mr Nufable on 31 May 2011 at the request of the Solicitors for Comcare. He provided a report dated 31 May 2011[27] and gave evidence.
[27] Exhibit R5.
In his report Dr Strauss stated:
He believes that he was treated inappropriately and this may well be the case and this may have led to the development of a mild psychiatric reaction in this man in 2010 which led to his time off. It may well be that he did develop a mild adjustment disorder with mixed anxiety and depressed mood because of his perception of circumstances in the workplace.
In the opinion of Dr Strauss Mr Nufable had recovered from any adjustment disorder from which he may have suffered by the time of his assessment of him.
LEGISLATION
Under s14(1) of the Act Telstra is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.
Injury is defined in section 5A as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Disease is defined in section 5B:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
Ailment is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Subsection 7(4) makes special provision for determining the date on which an injury, being a disease, is suffered:
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
ISSUES FOR DETERMINATION
The issues for determination are as follows.
(1)Has Mr Nufable suffered a disease within the meaning of the Act?
(2)If so, when did Mr Nufable first suffer the disease?
(3)Is the disease an injury within the meaning of the Act?
REASONING
Issue 1: has Mr Nufable suffered a disease within the meaning of the Act?
On the basis of the evidence of Ms Lazarevic I am satisfied that at the time Mr Nufable first consulted her (20 April 2010) he was suffering from depression and anxiety related symptoms. Further on the basis of the symptoms and signs recorded by Ms Lazarevic in her report I am satisfied that the condition diagnosed was an ailment as defined in the Act.
I am satisfied also that Mr Nufable’s condition was contributed to in a significant degree by his employment by the Agency. I make this finding on the basis of the evidence of Ms Lazarevic and Ms Shembrey. I take into account also that Dr Strauss was of the opinion that it was possible that workplace issues contributed to Mr Nufable’s suffering a psychiatric condition. Although there is some evidence that Mr Nufable’s mental state in April 2010 may have been affected by issues unrelated to his employment, this evidence does not cause me to reach a different conclusion.
Both Dr Strauss and Dr Miller expressed opinions that Mr Nufable did not suffer from depression at the time of their respective assessments of him. By reason of the conclusion I have reached in this matter it is unnecessary that I make a finding as to the time during which Mr Nufable continued to suffer the condition for which he seeks to be compensated.
Issue 2: when did Mr Nufable first suffer the disease?
Mr Nufable consulted Dr Urosevic in relation to “job related stress” on 14 April 2010. On the evidence before me this was the first occasion on which he sought medical treatment for the disease diagnosed by Ms Lazarevic less than a week later. In accordance with subsection 7(4) of the Act Mr Nufable is taken to have suffered the disease on 14 April 2010.
Issue 3: is the disease an injury within the meaning of the Act?
The further issue which arises, and which was the real issue in dispute between the parties, is whether or not the conduct which resulted in the disease suffered by Mr Nufable was reasonable administrative action taken in a reasonable manner.
Mr Nufable’s argument
Mr Nufable argued that the conduct of those supervising him on behalf of his employer contributed to his suffering the disease. These were:
ofailing to provide him with evidence of complaints made against him;
ofailing to properly respond to his questions and being repeatedly told to “be resilient to feedback and don’t ask too many questions”; [28]
osubjecting him to a Performance Improvement Plan while he was on probation;[29]
ofailing to properly implement the Performance Improvement Plan by failing to conduct regular reviews of his performance during the currency of the Plan;
oimplementing a Getting Back on Track Plan for a period of three months from 11 January 2010;[30]
ofailing to implement a Performance Agreement Record and an Individual Development Plan prior to placing him on a Getting Back on Track Plan;
ofailing to properly review him during the operation of the Getting Back on Track Plan;
otelling him that the Getting Back on Track Plan was to be extended;
ofailing to place him on a graduated return to work program when he returned to work after being on sick leave for one week in April 2010;
[28] Transcript 12 December 2011 p.13.
[29] Transcript 12 December 2011 p.47.
[30] Transcript 12 December 2011 p.51.
I am satisfied that Mr Nufable’s employer did provide him with proper details of the complaints made against him and that it properly responded to the questions put by Mr Nufable to those responsible for his supervision and training.
Further I am satisfied that the required documents were prepared and signed before Mr Nufable was placed on a Getting Back on Track Plan in early January 2010.
I am satisfied on the evidence of those responsible for supervising Mr Nufable that all of the action taken in respect of Mr Nufable and in respect of which there is evidence before me, was reasonable administrative action to address shortcomings in his performance and behaviour. On the same basis I am satisfied that this administrative action was taken in a reasonable manner.
I have found that whilst he was on probation, Mr Nufable should have been placed on a Work Improvement Plan rather than a Performance Improvement Plan. However I am satisfied that the purpose and requirements of each plan were the same and that this error had no effect on the manner in which Mr Nufable was dealt with in his employment.
I do not consider that any of the variations from Departmental policy was of sufficient seriousness to warrant a finding that the manner in which the administrative action was taken was unreasonable. Any failures to comply with policy were minor. There is no evidence to suggest that Mr Nufable was treated unfairly as a result or that there was any improper motive in the failure to comply.[31]
[31] C.f. Sami and Telstra Corporation Limited [2012] AATA 41.
I am satisfied that it was reasonable for the Agency not to place Mr Nufable on a graduated return to work program following his absence on sick leave for a period of one week in April 2009. The period of absence was only short and on the evidence before me there was no request or recommendation for such a program.
Taking into consideration all of the evidence I am satisfied that all of the employer’s conduct towards Mr Nufable, including all of the conduct of which he alleges resulted in his suffering a disease and which I have found to have occurred, was reasonable administrative action which was carried out in a reasonable manner. At all times those acting on behalf of the Agency endeavoured to assist Mr Nufable in reaching the standard of performance and behaviour reasonably required of him to fulfil the requirements of the position in which he was employed. The Agency’s action in relation to Mr Nufable’s request for a transfer to Brisbane was reasonable at all times.
As I am satisfied that the disease suffered by Mr Nufable was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment, the disease does not come within the definition of injury in section 5A of the Act and is not compensable.
In the findings of facts set out earlier in these reasons I have found facts which occurred after 14 April 2010, being the date on which Mr Nufable would have been taken to have suffered an injury if the depression he suffered had come within the definition of injury under the Act. I have considered those facts to determine whether Mr Nufable may have suffered an aggravation of his condition which did not result from reasonable administrative action taken in a reasonable manner. I am satisfied that he did not suffer such an aggravation.
CONCLUSION
The reviewable decision denying liability to compensate Mr Nufable in respect of depression and anxiety related symptoms, made by Comcare on 29 November 2010, will be affirmed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
..........................(sgd K Peterson).....................................
Associate
Date of hearing 12, 13 and 14 December 2011 Applicant In person Counsel for the Respondent Mr John Wallace Solicitors for the Respondent Ms J Robinson, Thomsons Lawyers
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