Fox and Comcare
[2012] AATA 204
•5 April 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 204
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0543
GENERAL ADMINISTRATIVE DIVISION )
Re SANDRA FOX Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date5 April 2012
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Sandra Fox suffered an injury for which Comcare is liable to pay compensation.
The parties have not been heard in respect to orders for costs. Submissions on this point, if any, are to be filed within 14 days from this date. If no submissions are filed, Comcare will be ordered to pay Ms Fox’s reasonable costs in these proceedings as agreed or taxed.
.......................[sgd]...................
Mr S. Webb, Member
CATCHWORDS
WORKERS COMPENSATION - disease – adjustment disorder with features of depression - meaning of 'reasonable administrative action taken in a reasonable manner in respect of the employee's employment' - management and policy actions not 'reasonable administrative actions' 'in respect of the employee's employment' - perceptions of bullying based on actual events - disease not a result of reasonable administrative action in respect of the employee's employment – disease not excluded as an injury - decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 7, 14, 67
Public Service Act 1999 (Cth), s26
CASES
Australian Capital Territory v Comcare [2012] FCA 67
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88
REASONS FOR DECISION
5 April 2012 Mr S. Webb, Member 1. Sandra Fox is an employee of the Department of Education, Employment and Workplace Relations (the Department). She perceived that she was being bullied and harassed at work and became unwell. She claimed compensation. Comcare decided to reject her claim. Ms Fox applied for review.
2. At the hearing, Allan Anforth, counsel for Ms Fox, informed me that the case was not simply one concerning an injury in the form of a “disease” that was significantly contributed to by Ms Fox’s employment, but it also concerned a “mental injury” arising out of or in the course of her employment. Ultimately, however, this aspect of the case was not pressed and it is not necessary to address it further.
3. I was informed that there is no dispute that Ms Fox suffered a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), being an adjustment disorder with features of depression, to which her employment contributed to a significant degree. The evidence before me supports this conclusion[1] and I accept Comcare’s concession.
[1] See report of Dr Zsadanyi, Exhibit R1, p9, for example.
4. The issue at the heart of the dispute is whether the injury claimed by Ms Fox is excluded for the purposes of the Act by operation of s 5A(1). The disease to which her employment significantly contributed will not be an “injury” under the Act if it was suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of [her] employment”.
5. At the outset of the hearing Comcare identified a number of factors that it says significantly contributed to Ms Fox’s claimed injury and are within the meaning of “reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment” –
(a)decisions by the Department to change group managers in the period September 2009 to March 2010;
(b)a meeting between Ms Fox and Louise Hanlon, a Departmental branch manager, in January 2010 to discuss a payment made to Queensland under the Smarter Schools National Partnerships arrangements between the Commonwealth, States and Territories whilst Ms Hanlon was on leave;
(c)the decision to postpone external Smarter Schools National Partnerships workshops organised by Ms Fox in October and November 2009;
(d)the action taken by Ms Hanlon in internal workshops to express her views on the evaluation and reporting function of the Smarter Schools National Partnerships in or about October and December 2009;
(e)the decision and consequent action taken by Catherine Wall, a Departmental group manager, to restructure the work distribution for the Smarter Schools National Partnerships including moving the evaluation and reporting function managed by Ms Fox to Ms Hanlon’s branch; and
(f)the decision and consequential action taken by Gabrielle Phillips, a Departmental branch manager and Ms Fox’s direct supervisor, to offer Ms Fox alternative duties following the restructure.
6. There are three essential elements to the exclusionary aspects of s 5A(1):
(a)the undertaking of administrative action in respect of the employee’s employment;
(b)the suffering of a disease, injury or aggravation as a result of the administrative action; and
(c)the reasonableness of the administrative action and the manner in which it was undertaken.
7. Considering the submissions of the parties, and without adopting an unduly disaggregated approach, it follows that the issues to be determined are:
(a)whether one or more of these factors is administrative action taken in respect of Ms Fox’s employment; and, if so
(b)whether Ms Fox’s claimed injury was suffered as a result of or was aggravated by one or more of those actions; and for this purpose
(c)the date of Ms Fox’s claimed injury.
8. Before considering these issues, it is necessary to set out the contextual background.
9. In 2008, Ms Fox was employed as an Executive Level 2 (EL2) section manager in the position of Director of the Review, Analysis and Economic Section (the Evaluation Section) in the Department of Education Science and Training (DEST). Following the merger of DEST with the Department, the Evaluation Section was merged with an existing Branch of the Department, managed by Paul Volker.
10. In 2009, the merged Department worked to implement new government policy to improve education outcomes in schools through “National Partnerships” with the States and Territories. Ms Fox was assigned duties, at the EL2 Director level, to lead the Smarter Schools National Partnerships evaluation and reporting team in the Inclusive Education Branch (presently, the Educational Accountability and Reporting Branch), managed by Ms Phillips. Precisely when this assignment was made is not clear on the present materials. Ms Fox says that it occurred prior to June 2009.
11. Responsibility for the Smarter Schools National Partnerships program was spread across three branches, one managed by Ms Phillips and another managed by Ms Hanlon, in the “Schools Cluster” of the Department, under one Group Manager. At the time Ms Fox transferred to her new role leading the Smarter Schools National Partnerships evaluation and reporting team, the Group Manager was Rebecca Cross. It appears that Ms Cross took up another appointment shortly thereafter and the position was not substantively filled until January 2010, when Ms Wall was appointed. Ms Hanlon and Carol Nichol acted in the Group Manager position for short periods during the hiatus.
12. During the six week period in which Ms Hanlon acted in the Group Manager position she “engaged an external consultant, Phillip Bonzer, to help me to look at the structures we had in place as it was difficult internally within our cluster to work across branches and groups”[2]. A number of administrative changes, integrating aspects of the Smarter Schools National Partnerships work, ensued.
[2] Exhibit R4, p2.
13. Affected staff were required to adjust to the new work arrangements and “some staff were reflecting on their own capacity and whether their skills suited the current environment”.[3] The evidence of Ms Fox, Gerald Crawford and Shirley Joritsma is that the work environment became increasingly difficult, in part at least because Ms Hanlon and Ms Phillips held different views and were engaged in a power play, and this adversely affected the morale of some staff.[4] Ms Hanlon and Ms Phillips denied any personal conflict but accepted that they may have held differing views about work issues when implementing the (then) new Smarter Schools National Partnerships policy. Ms Hanlon described Ms Phillips as a colleague and “a very good friend” at the time, even though they did not meet socially, and said that she was not aware of perceptions about a turf war, which she staunchly denied. I am reasonably satisfied that Ms Hanlon and Ms Phillips engaged in intense work-related discussions and “professional arguments” over the latter months of 2009 and into 2010 and, on the evidence of Ms Phillips, these interchanges may have been perceived as tense or as a turf war.
[3] Statement of Louise Hanlon, Exhibit R4 at [9].
[4] Exhibit A2, T29, T64 folios 200 to 203, and the oral evidence of Ms Fox, Mr Crawford and Ms Joritsma.
14. I accept, too, that changes of the kind that occurred in the Department in relation to the Smarter Schools National Partnerships policy, affected the arrangement of work within and between branches and sections of the Department. On the evidence of Ms Fox, Mr Crawford and Ms Joritsma, work demands and directions changed from day to day, communication was poor, tight deadlines had to be met, and often work that had previously been undertaken and decisions that had previously been made had to be revisited again. Ms Joritsma stated that “The working environment at the time was chaotic, reactive and frantic. Demands were made on staff without clear direction, without proper support or resources”.[5] Mr Crawford’s unchallenged evidence is that the “work environment was disorganised”.[6]
[5] T64 folio 202.
[6] Exhibit A2, page 2.
15. Ms Fox attributes many of the problems she experienced at work from September 2009 to March 2010 to “[Ms Hanlon’s] obstructive and corrosive tactics”[7] in this environment. Ms Fox struck me as a straight-forward witness who gave her evidence frankly and to the best of her recollection. I note that there are some minor inconsistencies in accounts she has given about her medical history and the progress of symptoms and events in her employment from March 2009 to March 2010. But to my mind these are no more than faulty recollections during a period in which Ms Fox was not well. I accept that in the course of actual events in the period from in or about September 2009 to March 2010, Ms Fox perceived, rightly or wrongly, that Ms Hanlon was bullying, obstructing and harassing her. On the present evidence, I am not able to determine with certainty whether her perceptions are correct, nor am I comfortably able to rule out that possibility. But it is not necessary to go further on this point.
[7] See T29 folios 53-57.
16. In or about February 2010 Ms Wall decided to integrate the Smarter Schools National Partnerships evaluation and reporting function in Ms Hanlon’s branch. This decision was communicated to Ms Fox on or about 4 March 2010 by Ms Wall.
17. On the evidence of Ms Hanlon, she required additional resources to deal with the additional workload in her branch –
My branch at the time, was one of the busiest and it certainly was not my inclination to take on more work. When it was suggested to me (by Catherine [Ms Wall]) that I take on the extra work, I made it very clear that I could only do so with additional resources.[8]
[8] Exhibit R3, page 3.
Earlier, in a statement to Comcare, Ms Hanlon described the arrangements in the following manner –
In early March, following this meeting [in February 2010] and other conversations, Cathy [Ms Wall] asked if I would consider taking the evaluation and reporting functions into my branch to achieve better integration across the 3 NPs [National Partnerships]. I was asked to take the 3 staff members that had been working in Sandra’s [Ms Fox] team but Sandra would remain in Gabrielle’s [Ms Phillips] branch and take on other functions. After consideration of the impact on my branch I agreed to incorporate the functions by splitting and assigning the functions to 2 experienced Directors.
18. On this evidence, it is quite clear that three officers were transferred from Ms Phillips’ branch to that of Ms Hanlon, where they were assigned to two teams managed by different Directors, and Ms Fox was to remain in Ms Phillips’ branch. In the usual course one would expect to find documentation supporting and authorising changes of this kind. But no such documentation was adduced.
19. Ms Wall’s evidence is that she advised Ms Fox that “her Branch Manager Gabrielle Phillips would discuss the details of this transfer of functions with her, and that there were other positions in that branch that were likely to better match her skills and interests”.[9] This is consistent with Ms Phillips’ evidence. Thus it appears that any action that was specific to Ms Fox in respect of the consequential effects of the restructuring, including in relation to Ms Fox’s duties or position, was action to be decided by Ms Phillips.
[9] T53 folio 129.
20. Considering the evidence about actions taken by Ms Phillips following Ms Wall’s decision to restructure the Smarter Schools National Partnerships evaluation and reporting functions, the only actions taken specifically in respect of Ms Fox were conversations Ms Phillips had with Ms Fox soon after 4 March 2010, including while she was absent on leave, about possibilities and options on her return. Ms Phillips’ evidence is not entirely clear, definite or detailed about the specific actions taken –
I also discussed [with Ms Fox] work which my branch had taken on which would be high priority and interesting and that she would be focussed on that work. I made contact with Sandra [Ms Fox] at the end of her leave, prior to her return, to confirm that when she returned she would remain in my branch with a change in duties. I had a number of projects that she would be responsible for and that we would discuss staffing and similar once she returned and we had further discussions about the work that was required.
Sandra indicated that she wanted to retain her responsibilities for the evaluation and reporting. I indicated that this was not an option as the work was being integrated into two existing teams in another branch.
She indicated that she did not want to remain in my branch and I offered to assist her to find another position but that I had a position for her.[10]
[10] T49 folio 120.
21. Ms Phillips’ evidence does not establish that the matter progressed any further.
22. Furthermore, it is not clear whether these discussions were directed to allocating duties for Ms Fox to perform in her existing employment in Ms Phillips branch or whether they were directed to transferring Ms Fox into a different position in Ms Phillips branch or other employment elsewhere. There is no probative evidence concerning the established positions in Ms Phillips’ branch before or after Ms Wall’s decision to integrate the Smarter Schools National Partnership evaluation and reporting function in Ms Hanlon’s branch and what effect, if any, that decision had on the established positions in either branch.
administrative action in respect of employment
23. The scope and proper construction of s 5A and the meaning of “administrative action” taken “in respect of the employee’s employment” was decided in Commonwealth Bank of Australia v Reeve[11], in which Rares and Tracey JJ said –
[11] [2012] FCAFC 21.
[T]he action must be something different to the duties and incidents of that employment of, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
…
It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action” in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.[12]
[12] Ibid at [60] and [74].
24.Within that frame, “administrative action" “in respect of the employee’s employment” involves “action taken in respect of the administration of the relationship of the employer and employee … [something that is] done with respect to the employment relationship that the particular employee has with the employer”[13]. It should not be assumed that any interaction between an employee and a more senior manager in the context of employment is administrative action in respect of the employee’s employment – something must be done, in the form of administrative action, to effect the employee’s employment by the employer. For the purposes of s 5A, “employment” refers to the act of employing or the state of being employed, rather than that on which the employee is employed, being the duties, incidents and nature of the job or task entrusted to the employee.[14]
[13] Ibid at [33].
[14] Ibid per Gray J at [30], per Tracey and Rares JJ at [60] and [74].
25.Many interactions occur between managers and other employees in the usual daily operation of a workplace. Such interactions may commonly involve discussions or directions concerning the work duties and operational activities of the employee. An interaction of this kind has an operational character that is unlikely to constitute administrative action in respect of the employee’s employment. If an interaction involves discussion or directions concerning the employee’s employment it may be consistent with administrative action taken in respect of the employee’s employment.
26. The actions on which Comcare rests its case require careful consideration.
changing group managers
27. The changing of group managers within the area of the Department in which Ms Fox was employed in 2009 and 2010 is not action of an administrative kind in respect of her employment. These were operational actions within the Department. They were not taken in respect of Ms Fox’s employment and they are not within the scope of the exclusions set out in the definition of “injury” at s 5A(1).
payment to queensland
28. The meeting between Ms Fox and Ms Hanlon in January 2010, in which a Smarter Schools National Partnerships payment to Queensland was discussed, is not an administrative action in respect of Ms Fox’s employment. This meeting and the exchange between Ms Hanlon and Ms Fox has an operational character. Even though there is a dispute about what was said and about Ms Hanlon’s tone during the meeting, it was an operational action Ms Hanlon took, pursuant to her understanding of financial arrangements under the Smarter Schools National Partnerships. The meeting was not administrative action taken in respect of Ms Fox’s employment by the Department.
cancelling workshops
29. The same can be said of actions taken to cancel or postpone Smarter Schools National Partnerships workshops in October and November 2009. Those actions are purely operational. There is a conflict in the evidence about the precise reasons behind the cancellation of the workshops, concerning perceived incompetence or readiness for example, and the manner in which cancellation decisions were made or communicated. It is not necessary to go further on this – the precise operational or policy reasons for cancelling the workshops are not to the point. On any view, it is clear that these actions were taken for operational reasons and they are not administrative actions taken in respect of Ms Fox’s employment.
expressing opinions about operations
30.Ms Hanlon’s expressions of opinion during internal workshops in or about October and December 2009 about the Smarter Schools National Partnerships evaluation and reporting functions, for which Ms Fox had some management responsibility, were not appraisals of Ms Fox’s performance[15] or counselling actions in respect of Ms Fox’s employment[16]. The evidence of Ms Phillips and Ms Hanlon clearly establishes that Ms Hanlon’s expression of opinion had an operational or policy character. Any overt or implied criticism directed to Ms Fox in this context does not affect the character of the action taken, and further examination of it does not advance the matter. In short, Ms Hanlon’s expressions of opinion were not administrative actions of any kind in respect of Ms Fox’s employment.
[15] Section 5A(2)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
[16] Ibid. s 5A(2)(b)
restructuring operational functions
31. Ms Wall’s decision to restructure Smarter Schools National Partnerships functions and the distribution of work between branches within the area of the Department she managed was an operational decision. It was not an administrative action taken in respect of Ms Fox’s employment by the Department. It was an action that affected the duties and workload of a number of employees of the Department, some of whom were required to transfer from one branch or section of the Department to another, coming under the supervision of different management personnel. Ms Fox was not required to transfer to Ms Hanlon’s branch, but her duties and possibly her position were affected. Operational functions and employees she supervised in the section of the Department she managed were transferred to Ms Hanlon’s branch, but she was not.
32. Ms Wall’s evidence is very clear – the transfer of evaluation and reporting functions was “a routine business decision made by me to enable our team to deliver on our priorities”[17]; this was “an administrative decision made to deliver on a business priority”[18]. This evidence is supported by the evidence of Ms Phillips[19] and Ms Hanlon[20]. Clearly, Ms Wall’s decision to transfer the Smarter Schools National Partnerships evaluation and reporting function was not an action directed to Ms Fox specifically. Nevertheless, it appears that Ms Wall’s action may have affected Ms Fox’s duties or her position in employment. This is a matter to which I will return.
[17] T53 folio 129.
[18] Exhibit R5, page 2.
[19] Exhibit R4, page 3.
[20] Exhibit R3, page 3 and T53 folio 131.
33. It is not established that Ms Wall proceeded on the basis that Ms Fox’s performance was not satisfactory. Even if Ms Fox “had not demonstrated the collaborative and influencing skills necessary to achieve consensus across several teams”[21], it does not follow that the discussion between Ms Wall and Ms Fox about these matters on 4 March 2010 (which is also the subject of dispute) is properly characterised as an appraisal of Ms Fox’s performance or a counselling action, or any other kind of administrative action, in respect of her employment. Ms Wall simply informed Ms Fox of operational changes that were not directed to her, specifically, but which would affect her work duties.
[21] T53 folio 129.
assignment of duties
34. The assignment of duties to a Departmental employee such as Ms Fox accords with the arrangement of functional responsibilities and operational requirements across sections, branches and divisions within the hierarchical structure of the Department. It can readily be accepted that restructuring functional responsibilities in this context, albeit for policy or operational reasons, affects the responsibilities, daily work and supervisory arrangement of individual employees within the overall structure.
35. Under s 26 of the Public Service Act 1999 an Agency Head “may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed”. Clearly, these are features or “conditions” of employment.[22] Nevertheless, the performance of duties is ancillary to the employment itself and the employment continues irrespective of whether the employee performs particular duties, or any duties at all, from time to time.[23]
[22] John Holland Group Pty Ltd v Robertson [2010] FCAFC 88, per Dowsett J at [72]-[73].
[23] Australian Capital Territory v Comcare [2012] FCA 67 at [44].
36. Clearly, the performance of tasks or duties is an intrinsic feature of Ms Fox’s employment, being part and parcel of her employment[24], but there is a question whether action taken to change Ms Fox’s duties is administrative action taken ”in respect of” her employment.
[24] Reeve [2012] FCAFC 21, per Rares and Tracey JJ at [61].
37. The words “in respect of” that appear in the exclusionary aspect of s 5A(1):
provide a relational context for the administrative action taken and the employee’s employment … [and] require that the action be specific to the employee’s work or job so that the exclusion can operate harmoniously with the preceding portion of s 5A(1) rather than as eviscerative of it.[25]
[25] Ibid at [69].
A distinction is to be drawn between “specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job”[26] – to enliven the exclusionary aspect of s 5A(1), the administrative action “must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be”[27].
[26] Ibid at [60]
[27] Ibid at [63]
38. It appears that the actions taken by Ms Wall affected Ms Fox’s duties or her position in employment and the action Ms Phillips took was in the form of conversations with Ms Fox to discuss consequential implications and options. Even though the evidence is deficient, it is clear that a substantial part of the Smarter Schools National Partnership evaluation and reporting function and staff was transferred to and integrated into Ms Hanlon’s branch. It may be inferred that the part remaining in Ms Phillips’ branch was confined to Ms Fox, alone. If that is correct, Ms Phillips may have assigned new duties for Ms Fox to perform in her existing position, or she may have transferred Ms Fox to another position. On Mr Phillips’ evidence it appears that that both options may have been discussed, but it is not established that any clear decision or action was taken one way or the other. Ms Phillips evidence is that there were duties for Ms Fox in the branch and that she would assist Ms Fox into another position outside the branch if that was her preference.
39. To my mind, insofar as the conversations between Ms Phillips and Ms Fox concerned a change in Ms Fox’s specific duties, they had an operational character that did not bear upon the fact of her continuing employment. To the extent that the conversations traversed the possibility of Ms Fox transferring to a different position, this may have had an administrative character. It is difficult to accept that the discussion of options, prior to formal action being decided or taken, is administrative action taken in respect of Ms Fox’s employment. To my mind, it is not.
40. The central issue is whether changing an employee’s position or duties is administrative action taken in respect of his or her employment. These are matters of fact and degree. It is not difficult to conceive of changes in an employee’s duties where no administrative action is taken in respect of his or her employment – for example, a bricklayer may work first on one wall and then on another in the same building; or a Commonwealth officer may work first on evaluating and reporting performance in one jurisdiction and then in another within a national program. Similarly, it is not difficult to conceive of examples in which changes in an employee’s duties require administrative action in respect of employment – for example, if an employee is transferred or promoted to a different position or job, or if the employee is suspended from performing duties.
41. Commonly, an employee’s duties would be set out in a duty statement or job description of some kind attaching to the position in which he or she is employed. But no duty statement or job description attaching to Ms Fox’s employment before and after the restructuring of the Smarter Schools National Partnerships evaluation and reporting function has been adduced.
42. There is no reliable evidence that Ms Fox was re-assigned duties by Ms Phillips, or if she was, what those new duties were and the extent to which they differed from her previous duties. There is no reliable evidence that her position was abolished or that she was required to transfer into a new or different position of any description although that may be inferred on Ms Wall’s evidence.
43. The definitional guidance concerning “reasonable administrative action” provided by s 5A(2), albeit not exhaustive for the purposes of s 5A(1), is to be construed “in respect of, but apart from, ordinary duties or tasks of the employee’s employment or job itself”[28]. The instance in s 5A(2)(a) concerns an appraisal of the employee’s performance. Those set out in s 5A(2)(b) to (d) are expressly “in respect of the employee’s employment”, whereas those set out in s 5A(2)(e) and (f) are directed to “anything reasonable done in connection with” actions taken or the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with the employment. In the context of s 5A, the words “failure to obtain” or “to retain” imply that the subject of the failure – a promotion, reclassification, transfer or benefit – was desired or sought; the failure being attended by frustrated desire or disappointed ambition.
[28] Ibid at [63].
44. In the present circumstances, Ms Fox did not seek to obtain a promotion, reclassification, transfer or benefit, although she was disappointed when Ms Wall decided to transfer the Smarter Schools National Partnerships evaluation and reporting function from Ms Phillips’ branch to the branch managed by Ms Hanlon.
45. Without further and better evidence concerning the change in Ms Fox’s duties or her position, it is not possible to determine whether the actions taken were in respect of her employment. The evidence of Ms Wall and Ms Phillips is inconclusive and it is difficult to go any further on the present evidence.
46. Nevertheless, doing the best with the available evidence, on balance, it is probable that Ms Phillips’ discussions with Ms Fox were directed to duties in her employment, rather than to her employment itself. Alternatively, if Ms Phillips discussed options for transferring Ms Fox into a different position, to my mind the discussion was preliminary to the deciding and taking of administrative action to effect any such change. In either case, the actions Ms Phillips took to give effect to Ms Wall’s restructuring decision, are not administrative actions taken in respect of Ms Fox’s employment.
47. If that is correct, none of the actions on which Comcare relies are made out and the exclusionary elements of section 5A, whereby Ms Fox’s claimed injury would not be included as an “injury” for the purposes of the Act, are not determinative of her claim.
48. Alternatively, if the actions taken by Ms Wall and Ms Phillips are administrative actions taken in respect of Ms Fox’s employment, it would be necessary to determine whether Ms Fox’s “disease” was suffered as a result of these actions and, if so, whether the actions, and the manner in which they were undertaken, were reasonable.
49. As will appear, even if the actions taken by Ms Wall and Ms Phillips on or after 4 March 2010 are administrative actions taken in respect of Ms Fox’s employment, it is not established that Ms Fox suffered from a disease as a result of those actions.
date of injury and causation
50. The date of an injury in the form of a disease is to be determined under s 7(4) of the Act.
51. Clearly, if Ms Fox’s claimed injury is deemed to have occurred on a date prior to the date of an exclusionary action, it cannot be said that the injury was suffered “as a result of” that action. Nevertheless, in those circumstances no bar is raised against the exclusionary effects of s 5A applying in respect of a subsequent “injury” or “disease”. For example, if a disease is aggravated by reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment, and the aggravation itself is a disease under s 5B(1)(b), it may be excluded as an injury by operation of s 5A(1). In those circumstances, it should not be assumed that the injured employee’s entitlement to compensation will cease. Entitlements under particular heads of compensation are assessed with reference to an “injury” – even if the aggravation is excluded as an “injury”, the employee may still be entitled to compensation in respect of the original “injury” that predated the aggravation.
The Medical Evidence
52. In 2007, Ms Fox experienced symptoms of depression and anxiety allegedly as a result of workplace bullying. She obtained treatment in the form of antidepressant medication from her general practitioner, but this treatment was discontinued as she experienced an adverse reaction to the medication. She was treated by a clinical psychologist and substantially recovered.[29]
[29] T29 folio 52, T47 folio 101 and T48 folio 110 refer.
53. The evidence of Dr Cameron establishes that in March 2009 Ms Fox gave a history of battling depression for the previous two years.[30] This suggests that Ms Fox had not entirely recovered from her previous bout of depression in 2007. Dr Cameron prescribed a low dose (10mg) of Lexapro[31], an antidepressant medication. It appears that this medication was changed to Cymbalta (at an initial dose of 30mg) in May 2009 and later the dosage was increased to 60mg.[32] On 2 June 2009 he noted that Ms Fox was generally better and she had commenced a new job. Ms Fox continued with the antidepressant medication until in or about December 2009[33] even though she experienced some adverse side effects. It appears that she complained of symptoms of giddiness, palpitations and headaches throughout 2009.[34]
[30] T52 folio 124.
[31] T54 folio 140.
[32] T54 folio 138.
[33] T54 folio 136.
[34] See T3 to T19 inclusive.
54. In her compensation claim form, Ms Fox nominated 9 October 2009 as the date on which she first experienced symptoms of the injury under claim.[35] She resiled from this date at the hearing, however, stating that she did not know why, or on what basis, it had been included in the claim form – it appears that a person in the Human Resources area of the Department completed the claim form in discussion with Ms Fox. In any event, Ms Fox signed the claim form on 28 April 2010. I note that the claim form includes references to Ms Fox’s statement[36] of the same date.
[35] T33 folio 65.
[36] T29.
55. It appears that on or about 23 March 2010 Ms Fox consulted Greg Aldridge, a clinical psychologist, at the request of her employer.[37] Mr Aldridge diagnosed a Major Depressive Disorder[38] as a result of perceived bullying. In his 13 April 2010 report, Mr Aldridge set out factors Ms Fox described as bullying – “excessive workload, loss of her team, exclusion from important information, loss of ‘her project’, being ignored”[39]. In his 14 June 2010 report to Comcare, Mr Aldridge was more expansive about the factors that precipitated Ms Fox’s depressive disorder –
a complex set of incidents at work which [Ms Fox] perceived as a pattern of behaviour which could be summarised as bullying or harassment … Ms Fox believes that one of the other senior managers LH2, in early to mid 2009 wanted to take over Ms Fox’s domain. In Ms Fox’s opinion she commenced a complex but systematic set of actions to undermine Ms Fox’s professional reputation and to cause her great personal distress. As documented in her own report, Ms Fox wrote:
“She did this by excluding me from relevant meetings, withholding information, withholding reports, changing and avoiding meetings, and sending in lower level staff who were not able to make decisions. Documents provided to us were inaccurate or the incorrect versions. Decisions made in meetings were reversed, ignored or misrepresented. I could not stabilise the job and we were made so busy rushing from one invented crisis to another that there was never any progress – a situation not helped by (LH2’s) constant insistence that points that had been decided months or days previously should be revisited over and over. I had no control over not only the project but even my day to day tasks.”
This behaviour by some of her senior colleagues continued for most of 2009 and the early part of 2010. Ms Fox could eventually stand it not [sic] longer and in March 2010 she took sick leave at her GP’s instruction.[40]
[37] T25 folio 43; T20 folios 31-32, T44 folio 94 and T48 folio 108 refer.
[38] T25 folio 43, T44 folio 95 and T48 folio 113.
[39] T25 folio 43.
[40] T48 folios 110-111.
56. Mr Aldridge summarised the reported impact of these factors on Ms Fox in the following terms –
In summary she described:
·Feeling undermined and deliberately humiliated at work
·By mid 2009 feeling depressed and anxious and being trialled on antidepressants (which she could not tolerate)
·Feeling she had no control over [her] work
·Feeling that she must work worked [sic] longer and longer hours
·Constant headaches
·Extreme reluctance to attend meetings for fear of being ambushed
·Lost [sic] of self confidence
·Anxiety about her future
Matters began to become extreme when in January 2010 Ms Fox wet herself at work during an anxiety attack
…
During this time Ms Fox said that she repeatedly tried to alert her seniors to this pattern of systematic undermining of herself. She reported that they consistently failed to recognise or act on what she was reporting. In the end she felt both demoralised and badly let down by her colleagues and “the system”.
Her distress at being undermined was greatly enhanced by her perceived abandonment by her colleagues.[41]
[41] T48 folio 111.
57. Dr Jeffery Bertucen, a consultant psychiatrist, assessed Ms Fox on 4 June 2010 and produced a medical report[42]. He diagnosed a “chronic Adjustment Disorder characterised by a Depressed Mood and Anxiety” arising in relation to an identifiable stressor – “the identifiable stressor is the alleged bullying, harassment, interference and obstruction that Ms Fox experienced at the hands of a senior manager, Louise Hanlon”[43]. Dr Bertucen described these alleged behaviours in terms that are consistent with those reported to (and by) Mr Aldridge[44]. He reported the history in the following manner –
In mid 2009, in response to the workplace situation described above (more specifically the bullying and harassment from Ms Hanlon), [Ms Fox] recalls an aggravation of her depression and anxiety symptoms including disturbed sleep with early morning wakening, intrusive and uncontrollable night time ruminations about the work situation, an increase of 15 to 20kg in weight owing to lethargy, demotivation to exercise and sugar food craving, easy tearfulness, feelings of being easily overwhelmed, abandonment of her social pastimes, (i.e. the band, and bicycle riding) and spent “most of the weekend in bed”. In early 2010, she became stressed to the point where she experience passive suicide ideation.[45]
[42] T47.
[43] T47 folio 103.
[44] T47 folio 100.
[45] T47 folio 101.
58. Dr Bertucen reported that:
[Ms Fox] described herself as “essentially non-functional” in January to February 2010 and discussed her grievances with her overall group manager (Katherine Wall) in March 2010. She was highly distressed at Ms Wall’s response that she should merely look for another job and noted in her statement “Louise [Hanlon] had undermined me so much that I was seen as the problem”. She described Ms Wall’s response as “the most unkind and telling blow”.[46]
[46] T47 folio 101.
59. Ms Fox gave written and oral evidence that she experienced anxiety attacks in December 2009 and January 2010 – she provided details of the circumstances in which these were said to have occurred. In her statement of 28 April 2010 she refers to only one such incident in December 2009 in which she lost control of her bladder[47]. Dr Bertucen made no express reference to these attacks in his 4 June 2010 report, but he was provided with Ms Fox’s 28 April 2010 statement. In his 1 June 2010 report, Mr Aldridge referred to Ms Fox’s fear that a similar attack may recur if she is exposed again to her “tormentors at work”[48].
[47] T29 folio 56.
[48] T44 folio 95.
60. Dr Michael Cameron, Ms Fox’s treating general practitioner, reported that Ms Fox was “extremely concerned about the possibility of this happening again when she returns to work”.[49] It is curious that Dr Cameron only became aware of these alleged anxiety attacks when he reviewed Ms Fox’s statement while preparing his 23 June 2010 report to Comcare. It appears that Ms Fox did not raise the issue with him when she consulted him in on 3 January 2010 about another condition. Thereafter, Ms Fox did not consult Dr Cameron again until 25 March 2010 following a “meltdown” at work[50].
[49] T52 folio 126.
[50] T55 folio 145; T52 folio 124.
61. On 15 April 2010 Dr Cameron completed a Mental Health Assessment Plan for Ms Fox, in which he diagnosed depression as a result of conflict at work.[51] On 23 June 2010 Dr Cameron produced a detailed report to Comcare, in which he sets out a detailed history and diagnoses “quite severe depression and anxiety” as a result of perceived bullying and overwork[52]. Dr Cameron reported that:
I now believe that many of the physical symptoms she experienced during 2009 were due to the depression and anxiety she was experiencing at that stage AND, that her depression and anxiety during 2009 also relate directly to her work situation. Clinically I believe that she and I should have explored the cause of the symptoms during 2009 to a greater degree than was the case.[53]
[51] T26.
[52] T52 folio 126.
[53] T52 folio 126.
62. Dr Zoltan Zsadanyi, a consultant psychiatrist, examined Ms Fox in May 2011 and produced a report[54]. Dr Zsadanyi diagnosed a Chronic Adjustment Disorder with depressed mood but was not able to determine when the condition commenced, except that it related to bullying over several months. Dr Zsadanyi stated that “Ms Fox’s allegations of perceived harassment and bullying in the workplace significantly contributed to her onset and development of depressive and anxiety symptoms”[55]. The Doctor set out examples of the alleged bullying and harassment on pages 4 and 5 of his report –
[54] Exhibit R1.
[55] Ibid., page 8.
[Ms Fox] had not been provided data, not given copies of agreements;
she was ambushed at meetings with other people being present;
Ms Hanlon cancelled [a] workshop claiming that Ms Fox had not done her work properly in relation to preparing for the workshop;
she would be required to give a brief or prepare a document and she would work long hours only to be told the next day that there would be significant changes to this;
she had been labelled as completely incompetent by Ms Hanlon;
she felt she had no control over her day to day work;
[Ms Hanlon] took credit for Ms Fox’s work without acknowledging this;
she had previously been given “incorrect” information or … information she required was missing; and
Ms Fox advised Ms Phillips that she felt she was being bullied by Ms Hanlon [but] Ms Phillips allowed the above situation to continue.
Consideration
63. Considering the medical evidence, it is clear that Ms Fox experienced symptoms of depression that were sufficient to require medical treatment on and after 19 March 2009. The clinical notes of Dr Cameron do not reveal whether Ms Fox’s depression varied in intensity during the period from June to December 2009. The proposition that Ms Fox’s previously existing depression from March 2009 was related to her employment was not seriously pressed. I will go no further on this point.
64. On the evidence of Dr Bertucen, Dr Zsadanyi, Dr Cameron and Mr Aldridge I am satisfied that Ms Fox suffered an Adjustment Disorder and that condition was significantly contributed to by her perceptions of bullying and harassment in employment. The subject of her perceptions, rightly or wrongly, was Ms Hanlon and the perceptions arose in relation to events that actually occurred. There are varying opinions about the date of onset of this Disorder.
65. Ms Fox’s evidence is that her symptoms deteriorated in the latter part of 2009 and became more pronounced, to the point where she suffered an anxiety attack at work in December 2009, and another in January 2010. Ms Fox staunchly adhered to this point under cross-examination, even though there is no contemporaneous corroborating medical evidence to support the occurrence of anxiety attacks in December 2009 and January 2010, and there are inconsistencies in her accounts about these matters over time. She did not raise the alleged attacks with Dr Cameron at the time or subsequently until June 2010, even though she did not feel inhibited discussing personal issues with him. Nevertheless, the explanation that Ms Fox suffered from other symptoms, including a suspected ear infection in December 2009 that required further investigation, and those matters were on her mind when she consulted Dr Cameron on 3 January 2010 is plausible. So, too, is her explanation that when she consulted the Doctor on 25 March 2010, other difficulties and experiences concerning her health and her employment had overtaken events in December 2009 and January 2010, including her referral to Mr Aldridge by her employer on or about 23 March 2010.[56]
[56] T25 folio 43.
66. On balance, I accept that it is probable Ms Fox experienced an anxiety attack in the course of her employment in or about December 2009, involving the loss of bladder control, and it is appears that she may have experienced a second similar attack in January 2010, during which she was unable to answer the telephone or leave her office for a time. While it is not possible to be certain, it appears to me that Ms Fox gave truthful evidence about these matters and I will proceed on that basis.
67. There is no evidence that Ms Fox suffered an anxiety attack prior to December 2009. That being so, the anxiety attack in December 2009 indicates that Ms Fox’s symptoms had changed and become worse at that time. Mr Crawford’s evidence lends support to this conclusion. It is possible that the tiredness about which she complained at the time, and that was noted by Dr Cameron, may have been related to this development.
68. In all likelihood, the change in Ms Fox’s symptoms in or about December 2009 signifies the onset of the Adjustment Disorder diagnosed by Dr Bertucen in June 2010. It is very clear that the Adjustment Disorder was suffered as a result of factors in Ms Fox’s employment, including perceived bullying and harassment by Ms Hanlon in relation to events that actually occurred.
69. It appears that Ms Fox’s condition continued and possibly deteriorated further after December 2009, to the extent that her employer referred her to Mr Aldridge on or about 23 March 2010 and she was certified unfit for work on 25 March 2010 by Dr Cameron. As I have said, on Mr Aldridge’s evidence, the operative factors acting on her presentation at this time were “excessive workload, loss of her team, exclusion from important information, loss of ‘her project’, being ignored”[57]. This assessment, however, must be weighed against the evidence of Dr Bertucen and Dr Zsadanyi, both of whom concluded that the operative causal factor of Ms Fox’s Adjustment Disorder was her perception of bullying by Ms Hanlon combined with the apparent failure of Ms Phillips to do anything about it in January and Ms Wall’s dismissive response in March 2010.
[57] T25 folio 43.
70. Once the Adjustment Disorder was established in or about December 2009, it is possible that further exposures to the predisposing stressor, perceived bullying by Ms Hanlon at a workshop in February 2010 for example, may have exacerbated or aggravated the Disorder. This is not established, however. To my mind the better conclusion is that once the Adjustment Disorder was established it continued, albeit perhaps with increasing symptoms or intensity, with on-going exposure to the identifiable stressor but with no proper treatment until on or about 23 March 2010.
71. I am not persuaded that Ms Phillips’ failure to act when Ms Fox informed her of her concerns about Ms Hanlon’s behaviour in January 2010 caused an “aggravation” of Ms Fox’s already established Adjustment Disorder. Nor am I persuaded that Ms Wall’s response in March 2010, and her decision to integrate the Smarter Schools National Partnerships evaluation and reporting function in Ms Hanlon’s branch caused such an aggravation. Although, it is clear enough that these events contributed to the progress of the Disorder.
72. Further, I am not persuaded that Ms Phillips inconclusive efforts concerning changes to Ms Fox’s duties or to her position in employment, in the form of conversations on or after 4 March 2010, exacerbated or aggravated the Disorder, even though these events may have added their measure to its continuing progress. The Adjustment Disorder was already established by this time and it was affecting Ms Fox’s behaviour at work. This fact was noted by Ms Hanlon, Ms Wall, Ms Phillips and Mr Crawford.
Conclusion
73. Ms Fox suffered an Adjustment Disorder in or about December 2009 as a result of perceived bullying and harassment by Ms Hanlon. Her employment significantly contributed to the Disorder. The Disorder was not suffered as a result of reasonable administrative action taken in respect of her employment. It is an injury for the purposes of the Act. It follows that the decision under review is set aside and Ms Fox is entitled to compensation, subject to claim under specific heads of entitlement.
74. The decision is favourable to Ms Fox. The parties have not been heard in respect to orders for costs. Submissions on this point, if any, are to be filed within 14 days from this date. If no submissions are filed, Comcare will be ordered to pay Ms Fox’s reasonable costs in these proceedings as agreed or taxed.
1. I certify that the preceding 74 (seventy four) paragraphs are a true copy of the reasons for the decision herein of MR S. WEBB, MEMBER.
.................[sgd]......................................
Associate
Dated 5 APRIL 2012
Date of Hearing 12 and 13 December 2011
Date of Decision 5 April 2012
Solicitor for the Applicant Mr Bill Repath, Nicholl and Co.
Counsel for the Applicant Mr Allan Anforth
Solicitor for the Respondent Mr Bradley Dean, Australian Government
SolicitorCounsel for the Respondent Miss Rhonda Henderson
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