Erika Magro and Comcare
[2013] AATA 938
[2013] AATA 938
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2005
Re
Erika Magro
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 23 December 2013 Place Canberra The decision under review is affirmed
..........................[sgd]..............................................
RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – adjustment disorder – whether the condition is an ailment - whether contributed to by employment to a significant degree – whether not compensable because due to reasonable administrative action undertaken in a reasonable manner
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) sections 4(1), 5A(1),(2) and 14
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Comcare v Martinez [2013] FCA 439
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR
Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461
Domburg v Nurses Board (Vic) [2000] VSC 369
Falconer v Pedersen [1974] VR 185 at 187
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Re Findlay and Comcare [2013] AATA 324
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25
Re Radulovic and Comcare (2010) 120 ALD 31.
SECONDARY MATERIALS
A Deldridge (ed) Macquarie Australian Dictionary (rev’d 3rd ed, 2001)
DC Pearce Statutory Interpretation in Australia (6th edn, 2006)
Diagnostic and Statistical Manual of Mental Disorders (4th edn - TR, 2000)
Public Service Commission Counselling for Better Work Performance (2000)
Performance Development Scheme (PDS) Guidelines (2008)
REASONS FOR DECISION
RM Creyke, SMember
Ms Erika Magro applied in 2011 for acceptance by Comcare of liability for her adjustment disorder, which she claimed was employment-related. Comcare rejected the claim in a decision on 14 December 2011. This decision was affirmed by Comcare on 20 April 2012. Ms Magro sought further review by the Tribunal on 18 May 2012.
The matter was heard in Canberra on 4-5 November 2012.
The Tribunal is satisfied that it has jurisdiction in this matter.
Background
Ms Erika Magro, born 1957, was employed by the Department of Health and Ageing (agency) as a Health Programs Manager, an Australian Public Service officer level 6 (APS6) position.
On 29 April 2011, Ms Magro was informed by the Deputy Secretary of the agency that the ACT office of the agency in which she was working was too small to continue and would close on 13 May 2011. The area closed on 16 May 2001.
On 4 May 2011 Ms Magro was told she would be transferred into a position in the central ACT office of the agency and not long afterwards she was offered a position, which she accepted, as an acting Executive Level 1 (EL1) officer in the general practitioner afterhours section. The position was for an initial period of three months and Ms Magro took up the position on 19 May 2011.
On or around 29 July 2011, Ms Magro suffered an adjustment disorder and ceased working. Dr Torres said Ms Magro had a panic attack on 1 August 2011 on her way to work. She claimed that the condition was the result of the ‘loss of [her] job due to closing of the ACT office’. She said in her workers’ compensation claim that she first noticed the condition on 1 August 2011 when she sought treatment from Dr Wallace at Phillip Medical and Dental Care.
Medical evidence
Dr Greblo
Dr John Greblo, Ms Magro’s usual general practitioner, reported on 29 November 2011 that Ms Magro consulted Dr Wallace at his practice about her condition on ‘4 August 2011’. Dr Greblo had first seen her concerning the condition on 18 August 2011. He said she ‘appear[ed] to suffer from an Adjustment Disorder as a consequence of work restructuring’. He noted she had also sought medical treatment for depression in 2009, claimed to be secondary to work, and was prescribed an anti-depressant. He said that her workplace contributed to Ms Magro’s depression but she also had domestic problems relating to her husband’s employment and ‘issues with her children’.
Dr Torres
Dr Christian Torres, clinical psychologist, reported on 17 February 2012. She had seen Ms Magro on three occasions, in November 2011, December 2011, and January 2012, following a referral by Dr Greblo. She said Ms Magro scored ‘in the severe, extremely severe, and moderate range for self-reported symptoms of depression, anxiety and stress, respectively’. She also was in the ‘risky or hazardous drinking’ level bordering on alcohol dependence. Dr Torres diagnosed an adjustment disorder with mixed anxiety and depressed mood due to employment. At that stage Ms Magro was still contemplating a graduated return to work.
Dr Saboisky
Dr John Saboisky, consultant psychiatrist, reported on 9 October 2012 that Ms Magro was not then suffering any psychiatric condition, but had formerly suffered from an adjustment disorder with mixed features of anxiety, depression and anger, a new condition. He also noted she suffered from excess alcohol consumption. In his opinion the most significant factor leading to Ms Magro’s condition was her section meeting on 28 July 2011 immediately followed by a meeting with her director regarding her behaviour in the earlier meeting. His opinion was that if the director had not had the subsequent meeting with Ms Magro she would still be working. He acknowledged that Ms Magro had said that the final straw was when the team were told that the other EL1 officer in Ms Magro’s section was to be given higher duties during the director’s absence.
Of the other possible contributing factors, including her husband’s employment problems, issues with her children and alcohol consumption, he said these ‘could be viewed as significant’. However, he considered there was insufficient evidence to support the move from the ACT office of the agency as causing her any major psychological disorder.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides for the circumstances in which Comcare accepts liability for ‘an injury suffered by an employee if the injury results in … incapacity for work, or impairment’.
In turn this involves recourse to section 4(1) which defines an ‘ailment’, and an ‘impairment’, section 5A which defines ‘injury’, including when a condition is not an injury either because it was not contributed to, to a significant degree, by employment, or it arose as a result of ‘reasonable administrative action undertaken in a reasonable manner’ (section 5A(1), (2)).
Issues
The principal issue is whether Comcare is liable for Ms Magro’s condition because it is an ‘injury suffered by an employee [that] results in … incapacity for work, or impairment’. In turn that raises issues concerning:
·The appropriate diagnosis of Ms Magro’s condition;
·Whether the condition is an ailment;
·Whether that ailment, being a mental ailment was contributed, to, to a significant degree, by Ms Magro’s employment; and
·If so, whether that ailment is not an ‘injury’ because it was suffered as a result of reasonable administrative action undertaken in a reasonable manner.
Consideration
Diagnosis
The first issue is the diagnosis of Ms Magro’s condition. Ms Magro has made a claim for an adjustment disorder. Comcare accepted in its reviewable decision dated 20 April 2012 that there was no dispute that Ms Magro suffered from an adjustment disorder.
The Tribunal notes that Ms Magro’s general practitioner found in August 2011 that she ‘appeared to suffer from an adjustment disorder’, a view supported by her treating psychologist, Dr Torres, who saw Ms Magro between November 2011 and February 2012 when he had diagnosed ‘an adjustment disorder with mixed anxiety and depressed mood’. Although Dr Saboisky found no psychiatric condition when he saw her in October 2012, he considered she had formerly suffered an adjustment disorder with mixed features of anxiety, depression and anger. The Tribunal is satisfied that the universal opinion from the relevant medical experts was that at the relevant time Ms Magro suffered from an adjustment disorder. The Tribunal so finds.
‘Ailment’
The second issue is whether that condition is an ‘ailment’. The Act defines ‘ailment’ in section 4(1) as follows: ‘An ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
Ms Magro’s adjustment disorder is a mental disorder, defect or morbid condition. The condition is recognised as a psychiatric disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000, Text Revision) (DSM IV – TR), a reputable and widely used manual of such disorders. As such, an adjustment disorder qualifies as an ‘ailment’.
Was Ms Magro’s adjustment disorder contributed to, to a significant degree, by her employment?
Comcare in its reviewable decision conceded that employment was the significant factor in the development of the condition. Dr Greblo said her adjustment disorder was due to ‘work restructuring’. The attribution of the adjustment disorder to work was supported by Dr Torres. Dr Saboisky too said that ‘the most significant factor’ leading to Ms Magro’s condition was her section meeting on 28 July 2011, that is, a work-related matter.
Ms Magro in her statement attributed her adjustment disorder to a combination of the closure of the ACT office at short notice in April and May 2011 and her need to counsel her staff about the move, and her move to the central office of the agency and promotion to an acting higher duties position in which she claimed she was faced with an overload of duties. Finally she said a meeting on 28 July 2011 about who was to act in the director’s position while the director was absent was also critical.
There was a meeting with staff on 28 July 2011. There is some dispute as to whether it was an informal farewell for the director who was going on leave, or a normal section meeting. It is not necessary to decide that dispute. The director chose that occasion, just prior to her departure, to announce the person who would act in her place during her absence. Ms Magro said it was a decision which she would first have told her senior managers before sharing it with staff. The person nominated was the person occupying the other EL1 position in the section, a person who had been in the area for some 4 years and had been acting as an EL1 for eighteen months.
At that meeting on 28 July 2011 Ms Magro, according to the director, had persistently queried who was to be responsible for each of the tasks the director mentioned as needing to be undertaken during her absence. Ms Magro also asked whether that person would be getting higher duties, a question she acknowledged at the hearing was not well-framed. She said that afterwards she had gone to the person who was to act as director and apologised if she had offended him by that question and according to her he had said it had not. The director said in evidence to the Tribunal that she was unaware that an apology had been offered.
Immediately following this meeting the director had invited Ms Magro to speak with her. Ms Magro’s evidence was that she had papers which needed to be signed by her director before she left. Again there was a dispute as to whether this was accurate as the director has no recall of being asked to sign papers. The meeting between the two was held in a closed office. The director said she was disappointed in Ms Magro’s behaviour at the previous meeting and according to Ms Magro had said that on her return they would need to have discussions about how they could better work together. The director also said in evidence that she had been increasingly concerned that Ms Magro was not supporting her and her performance was bordering on the underperformance level. These were concerns she had not previously shared with Ms Magro.
Ms Magro said in her statement that at the meeting her director had accused her of wanting her job, but the director denied this. Ms Magro also strongly denied she wanted the director’s position. She said she had in fact been looking for jobs elsewhere. Her role in the GP afterhours section involved a lot of typing and editing for which she felt she was not best suited. She had attended a job interview on the afternoon of 28 July 2011. In support of her lack of interest in being director, Ms Magro said she could not cope with her then job, much less that of a director. The director had also mentioned that Ms Magro’s performance development agreement had not been finalised. Ms Magro said she had placed a version of the document in her director’s in-tray some weeks prior to her departure and it had not been returned to her.
Ms Magro said she felt aggrieved by the reprimand about her behaviour at the preceding meeting. She said she had tried hard to support her director, and had willingly taken on the considerable familiarisation work involved in the new position as well as the operational functions. She had only been at work in the GP afterhours section for about six weeks. She had thought she and her team were doing well as the branch head had praised them for an idea they had developed. In her daily contacts with her director, she said there was never an indication that she was not performing to expectations. So the interchange with her director at the meeting on 28 July 2011 came as a shock. Ms Magro said she did not know what her director meant when she said at the meeting that on her return, things would need to change.
Ms Magro said she expected to go to work on 29 July 2011 but said that on the morning she was ill, physically and mentally, and could not make it. The 28 July was a Thursday, so she was absent from work on Friday 29 July 2011. The clinical records indicate that Ms Magro attended her general practice and saw Dr Lynne Wallace on Monday 1 August 2011 when the notation in the clinical notes reads ‘WC Stress’. She then returned to the practice and saw Dr Wallace again on 4 August 2011. She had not returned to work after 28 July 2011.
The coincidence of her absence from work from 29 July 2011, the day following the 28 July meeting, the visits to her medical practice the first business day following, and a further consultation on 4 August 2011, Ms Magro’s growing realisation that the temporary position she was filling was not suitable, as evidenced by her seeking other positions, and the absence of alternative explanations indicate that it was Ms Magro’s employment which significantly contributed to her adjustment disorder. The Tribunal so finds. Moreover, although Ms Magro listed other matters which she said had contributed to her adjustment disorder, and the Tribunal accepts that cumulatively they may have done so, the evidence indicates that it was the events of 28 July 2011 which precipitated the absence of Ms Magro from the workplace, and which were the most significant factors, a finding supported by similar comments in the reports of Dr Greblo and Dr Saboisky.
Whether Ms Magro’s ‘ailment’ was not an ‘injury’ because it was suffered as a result of reasonable administrative action undertaken in a reasonable manner (s 5A(1)(2)).
Comcare contended that the director’s action in calling Ms Magro in for a discussion following the staff meeting on 28 July 2011 was ‘administrative action’. Specifically, Comcare contends that the action fell within section 5A(2)(b) of the Act being ‘a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment’.
As Gray J said in Commonwealth Bank of Australia v Reeve, administrative action is ‘action with respect to the employee as employee and his or her employment relationship with the employer’.[1] Rares and Tracey JJ in the majority judgment in Reeve said that ‘administrative action’ referred to ‘action…directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment’.[2]
[1] Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463 at [30].
[2] Id at [57].
At the meeting between Ms Magro and her director on 28 July 2011, the director reprimanded Ms Magro for her questions at the preceding meeting which she said were inappropriate, reminded her that she had not completed her performance development form, and said that on her return from leave the two of them would need to work on better managing their relationship. The remarks were directed specifically to Ms Magro, arose out of the relationship between the director and her immediate junior officer in the workplace, related to events in the workplace affecting that relationship, and were accordingly administrative actions.
What amounts to ‘counselling (informal or formal)’ is not defined. The concept was explored by the Tribunal in Re Radulovic and Comcare..[3] The activity is frequently spelled out in workplace agreements. It is clear that ‘counselling’ in the therapeutic sense is not the intended meaning. In Domburg v Nurses Board of Victoria[4] Ashley J said that ‘counselling’ in an employment relations context ‘has an industrial relations flavour’[5] and involves ‘something less than a caution or reprimand’.[6] It is the ‘least severe – or most benign’ of the corrective administrative actions which can be made by an employer or provisional association.[7] In the Tribunal’s view, it is used in this sense in section 5A(2)(b).
[3] Re Radulovic and Comcare (2010) 120 ALD 31.1 at [76]-[77].
[4] Domburg v Nurses Board (Vic) [2000] VSC 369.
[5] Id at [63].
[6] Id at [62].
[7] Id at [62.].
The Tribunal has also considered the ordinary meaning of ‘counselling’. The Macquarie Dictionary defines ‘counselling’ as relevant as: ‘8) to give counsel to; advise; 9) to urge the doing or adoption of; recommend (a plan, etc). 10) to give counsel or advice’.[8] The Public Service and Merit Protection Commission and Comcare, in a joint publication, refer to ‘performance counselling’ as a ‘“formal” process in relation to assessment and monitoring of an individual’s work performance’, while ‘effective feedback’ is referred to as a form of ‘informal counselling’.[9] Consistent with the distinction made in Domburg, the publication notes that ‘Counselling’ is used in the sense of ‘assisting people to achieve and maintain a satisfactory standard of work performance and should not be confused with the type of counselling provided by professionally qualified counsellors’. The ordinary meaning reinforces the Tribunal’s view.
[8] A Deldridge (ed) Macquarie Australian Dictionary (rev’d 3rd ed, 2001) 439.
[9] Public Service Commission Counselling for Better Work Performance (2000).Although the Public Service Commission has noted that the publication is no longer current, but has said that the content may still contain good practice advice, and the Tribunal considers this to be so, particularly in relation to the practices of formal and informal counselling.
The unscheduled meeting immediately following the earlier team meeting was to provide counsel and advice to Ms Magro, to give her feedback about her performance, and to suggest the need on Ms Magro’s return for the two to work to achieve a more satisfactory standard of work performance. As such it amounted to informal counselling. So although the director emphatically denied that the meeting on 28 July 2011 involved ‘counselling’, her reference to the agency’s policies and procedures for such action indicates that the director was using the term to mean formal counselling, not an informal meeting at which preliminary concerns were being expressed which amounted to counselling of a less formal nature. For these reasons, the events at the meeting on 28 July 2011 do fall within the boundaries of administrative action, and section 5A(2)(b), as being ‘informal counselling’.
Whether administrative action is reasonable must be tested objectively.[10] The meaning of ‘reasonable’ for statutory purposes is its ordinary, natural meaning,[11] which may involve recourse to a dictionary,[12] and must be considered in its context.[13] As the Victorian Supreme Court said in Falconer v Pedersen: ‘One must interpret the phrase [or word] as used in its context, assisted as it may be but not necessarily bound by one of a variety of dictionary definitions’.[14] The administrative action need not be faultless;[15] it is sufficient if it is reasonable in all the circumstances, albeit there are alternative ways it could have been done.[16]
[10] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 per French J at [78]-[79]. See also Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25.
[11] Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461.
[12] DC Pearce Statutory Interpretation in Australia (6th edn, 2006) [3.30]. As Pearce comments ‘the law reports contain thousands of examples of cases in which courts have referred to dictionaries for guidance’.
[13] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[14] Falconer v Pedersen [1974] VR 185 at 187.
[15] Re Findlay and Comcare [2013] AATA 324 at [34] – [35].
[16] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [82] per French J.
The context may require the consideration of many factors including, if the context is a public service agency, the seniority of officers, the terms of any contract or directions to which the officer is subject, general requirements within the public service, including any code of conduct or ethics, or any integrity statement, and the terms, if relevant, of the certified agreement.[17] The circumstances are not confined to the impact on the person involved.[18]
[17] Re Georges and Telstra Corporation Ltd [2009] AATA 731 at…
[18] Comcare v Martinez [2013] FCA 439 at [73].
As Lander J said in Keen v Workers Rehabilitation and Compensation Corporation:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.[19]
[19] Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47 – 48. The extract was quoted with approval by Robertson J in Comcare v Martinez [2013] FCA 439 at [83].
The director was due to go on leave during the working day on 28 July 2011. She had little opportunity to speak with Ms Magro prior to her departure at 3.00pm that day. Hence for her to call Ms Magro into her office immediately following the earlier meeting was reasonable in the circumstances. The director said in evidence that as she was about to go on leave, she thought it better to address the issue up front rather than leave it until she returned from leave. The door was closed and only Ms Magro and director were present. So there was no untoward embarrassment attending the meeting.
In addition, since the meeting was not a formal counselling session, to take action at that point was consistent with the Performance Development Scheme (PDS) Guidelines (2008) of the agency which, in a section headed ‘Ongoing Performance Review and Feedback’, noted: ‘Supervisors must immediately discuss any performance issue with a staff member as soon as it is identified. It is poor practice to use a formal performance appraisal as the first means of expressing concerns about a staff member’s performance’.[20] In these circumstances, the Tribunal finds that to institute informal counselling at that time was appropriate and reasonable.
[20] Performance Development Scheme (PDS) Guidelines (2008), 18.
Nor was it undertaken in an unreasonable manner since the meeting was conducted in private, the Tribunal accepts that the director did not raise her voice, and as this was an informal process, there was no obligation for advance warning, nor to offer that a support person for Ms Magro be present. The director had simply taken the step to counsel Ms Magro about her behaviour and to suggest that further discussion would take place on her return from leave.
Conclusion
In summary, while Ms Magro’s adjustment disorder had been contributed to, to a significant degree, by her employment, since the events on 28 July 2011, particularly the subsequent meeting between the director and Ms Magro, triggered her absence from work, to have implemented that counselling in the circumstances was reasonable. Nor was the counselling undertaken in an unreasonable manner. That means the exception in section 5A(1), (2) of the Act is triggered, and Ms Magro’s condition does not amount to an ‘injury’ for the purposes of the Act. As a consequence, Ms Magro is not entitled to compensation. The decision under review is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, SM ........................[sgd]................................................
Associate
23 December 2013
Date(s) of hearing 4 and 5 November 2013 Counsel for the Applicant James Lawton Advocate for the Applicant Geoff Lutnant Solicitors for the Applicant RSK Legal Counsel for the Respondent Andrew Dillon Advocate for the Respondent Michael La Vista Solicitors for the Respondent Australian Government Solicitor
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