GAIL BAKER and COMCARE
[2010] AATA 375
•18 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 375
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1055
GENERAL ADMINISTRATIVE DIVISION ) Re GAIL BAKER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date18 May 2010
PlaceMelbourne
Decision The decision under review is affirmed. (sgd) John Handley
Senior Member
COMPENSATION – applicant alleged depression and anxiety arose out of conduct and behaviour of her manager – extensive prior medical history – medical evidence from one treating general practitioner– clinical notes revealed inaccurate or incomplete histories – conduct and expectations of manager and employer consistent with sound management practice – no material contribution by employment to ailment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988
Comcare v Sahu-Khan [2007] FCA 15
Trewin v Comcare (1998) 156 ALR 615
Canute v Comcare (2006) 226 CLR 535
Comcare v Canute (2005) 148 FCR 232
REASONS FOR DECISION
18 May 2010 Mr John Handley, Senior Member 1. The applicant claimed compensation on 18 May 2007 for the condition of major depression and anxiety disorder. The respondent rejected the application on 25 August 2007 and determined that the injury was unspecified adjustment reaction. The decision was affirmed following a request for reconsideration on 30 January 2008. The applicant applies to review that decision.
2. The hearing of the review was conducted over four days in Wodonga. A number of persons were called to give evidence and a considerable body of documents were lodged by both parties. The witnesses heard and the documents lodged will be referred to later in these reasons.
3. The Tribunal’s transcription equipment failed during the hearing. Recording the hearing using the facilities installed in the Magistrates’ Court was partially successful. Accordingly, the Transcript eventually produced and made available to parties, is incomplete. A copy of my handwritten notes made during the hearing were given to the parties' representatives.
4. In her application the applicant, who was born on 23 November 1950 (and currently aged 59 years) alleged the injury arose out of her employment with Medicare as a reaction to supervisor's behaviour. Specifically, the claim form recorded that the events that led to the injury or illness were:
Treatment of my office manager, Pam Brady, unreasonable behaviour including isolating me from work colleagues, excluding me from higher duties, unnecessary monitoring of my work, aggressive and negative attitude and finally behaviour that I consider to be bullying and harassment. (T6, p22)
5. The applicant later provided a considerable body of information in support of her application (and to clarify the allegations made) in a letter to an officer of the respondent on 25 June 2007 (T15, p69-72).
LEGISLATION
6. The compensation entitlements of Commonwealth employees are set out in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The SRC Act was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Act No 54 of 2007). The amendments apply to injuries or diseases occurring on or after 13 April 2007 (Items 2, 41 and 42 of Act No 54 of 2007). The applicant has recorded that she suffered the injury on 23 March 2007 (T6, p20). The respondent does not dispute the date of injury.
7. The applicant attended her general practitioner on 23 March 2007 and the doctor’s notes record increasing depression – frustrated at work – 2/52 off. Lexapro was then prescribed at 20mg. It was also the day after an episode in the workplace involving a colleague. I note the applicant also attended Dr Bruce on 3 September 2006 where the notes record (in part) depression + issues at work +++. Little I think turns on that date (for the purposes of defining the date of injury) other than to note that it was a date before 13 April 2007.
8. I am satisfied that the date of injury was 23 March 2007. Therefore, the relevant law is found in the SRC Act prior to the 2007 amendments.
9. Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation to an employee who suffers an injury that results in incapacity to work or impairment. Section 4(1) defines injury as:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Section 4(1) of the SRC Act defines disease as:
…an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth.
Ailment is defined as:
…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
10. In Comcare v Sahu-Khan [2007] FCA 15, Finn J in part decided that:
…in a material degree requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially for suffering of the ailment etc in question.
11. Later His Honour said whether this will be so in a given case will be a matter of fact and degree.
12. The issues before the Tribunal are:
a)Does the applicant suffer from an injury?
b)Is the injury a disease?
c)Was the disease contributed to in a material degree by the applicant’s employment?
EVIDENCE
Gail Baker
13. The applicant commenced employment with Medicare Australia in June 1994 as a CSO 1. Initial training was in Wodonga over a period of between three and six months. Within 12 months she had achieved the CSO 6 level and had been elevated to the CSO 9 level by 1996. Employment until this time had been on a part‑time basis at the Wodonga office. In 1999 the applicant was offered extra hours, which she accepted and was also transferred to the Albury office. In 2003 the applicant became a full-time employee and remained at the CSO 9 level. She had also acted as a relieving manager at the Swan Hill office.
14. In 2005, Family Assistance (FA) claims which had previously been processed by Centrelink, were delegated to Medicare. Persons from the Albury office were asked by Pam Brady the Albury manager, to express interest in volunteering to train as FA officers (FAOs). The applicant willingly volunteered together with another Medicare officer, Ms Britton. The training was over a six week period in Sydney and a subsequent three week period under the supervision of a Centrelink officer in the Albury Medicare office. Ms Brady also trained as a FAO.
15. The applicant said that when she, Ms Britton and Ms Brady travelled from Sydney Airport she was excluded from conversation and when they arrived at their hotel, Ms Brady made it clear she did not want a room close to me. She also said that Ms Brady spoke with Ms Britton during the training but not with her. On returning to Albury, the applicant said Ms Brady was dismissive of her and refused her request to be seated adjacent to Ms Britton in the Medicare office so that they might consult with each other when processing FA applications. From information the applicant supplied as a supplement to her claim form (T15, p71) she had requested that she be seated next to Ms Britton but Ms Brady had said no way and did not give a reason. Rather, she said Ms Brady arranged for her and Ms Britton to sit at each end of the Medicare counter (which has provision for nine officers). The applicant also recorded that other staff members sat next to each other on a regular basis especially during training.
16. The applicant said between 1999, when she commenced work in the Albury office and 2005, she had a good working relationship with Ms Brady. She said from 2005 Ms Brady rejected her, would not listen, was curt, dismissive and displayed cold body language. She said the relationship with Ms Brady escalated and rapidly deteriorated between 2005 and 2007.
17. By way of example, the applicant said Ms Brady over monitored her and stood near and over her and listened to her telephone conversations which she said were always work-related. She said Ms Brady would frequently enquire whether the telephone call was work related or whether it was a private call, whilst she was having the conversation. The applicant said she would make approximately five telephone calls per day for work related matters and the enquiries made by Ms Brady would have occurred on at least three occasions per day. She said the telephone was located near the entrance to Ms Brady's office and she had no reason to think that telephone calls were made for any purpose other than for work-related matters. The applicant said other staff made private telephone calls using the same telephone but she had never observed Ms Brady stand near them or query the nature of those calls.
18. The applicant said she was also required to use the internet to open emails which would be supplied through Medicare and which contained information concerning work matters. She said all staff were required to access the emails, were expected to read them and discuss the work related information that was contained within them. She said Ms Brady would frequently stand near her when she had opened emails and would make comments such as do that later. In cross examination the applicant agreed that there was nothing unusual about Ms Brady, as the manager, coming onto the floor and asking that attention be given to serving customers who were waiting rather than reading emails. The applicant said she always did what I was told but found the conduct of Ms Brady to be excessive.
19. After the FA training had been completed the applicant said she and Ms Britton only processed FA applications. She said Ms Brady did not do that work and said that she had hated it. She said she was upset that Ms Brady had refused to allow her to sit next to Ms Britton.
20. The applicant said her relationship with Ms Brady continued to deteriorate after 2005 especially following an occasion when she said Ms Brady approached her and indicated that other staff members had reported that some persons were not contributing to their work responsibilities. The applicant asked Ms Brady whether she had been identified as a person who had not been contributing and Ms Brady said that she had. The applicant said she told Ms Brady that she was having trouble keeping up with FA and Medicare work and Ms Brady responded by saying that she was not doing (her) job properly. A suggestion put by the applicant to Ms Brady that there be a more even spread of FA work between her and Ms Britton was ignored.
21. The applicant also alleged that Ms Brady was treating her unfairly and inappropriately, especially in 2005 when she returned to work following incapacity because of neck pain. She said Ms Brady consulted the Occupational Health and Safety Office of Medicare and later overheard her comment to another officer, that she, (the applicant) was pulling the wool over their eyes. She said Ms Brady approached her shortly after that occasion and lifted up her handbag and said this is the problem. The applicant understood that to be a reference to what Ms Brady perceived to be the weight of the handbag. She said that comment was made shortly after a claim for compensation had been made for the neck pain.
22. The applicant's description of the events surrounding the neck injury were recorded by her in a diary she was maintaining and which was received into evidence. An entry is found at 24 January 2005 and appears to have been recorded after the applicant completed a telephone conversation with Carolyn Muir, the Occupational Health and Safety Manager. The applicant recorded Muir had said it sounded like we haven't been treating you too well. The applicant said she kept a diary and made the entry of 24 January 2005 because she thought the behaviour of Ms Brady was strange and she was failing me.
23. The applicant said that each working day would normally commence by some discussion and office banter amongst Medicare staff. However, on 28 February 2005 the applicant said she again felt a sense of exclusion and made another entry in her diary in the following terms:
Pam seems to be playing mind games again. She bypasses me on things within the office, hasn't spoken to me hardly. I greeted everyone working today. I thought all the problems from last week were finished. I tried to lift the office mood by asking a question – directed at everyone. I had a response from everyone but EW seems very moody. When I go out the back the conversation stops. It makes me feel uneasy.
24. The person EW is identified and is a Medicare officer who is also at the CSO 9 level. The diary entry of 28 February 2005 also refers to discussions concerning Saturday morning trading which the applicant said involved Medicare officers volunteering to work on that day. The applicant said she had chosen not to work on Saturdays because of family commitments but had indicated that she would always be available in the event of emergency. The applicant recorded her reaction to events in the workplace on 3 March 2005 in her diary in the following terms:
I spoke to EW today before work – she didn't answer. She wont join in our usual conversation in the office but talks “normally” to others in the office. I've tried before on Friday with a bit of small talk. I got a small response but she continues to ignore me. I wont try again.
25. The applicant said she was upset by a discussion she had with Ms Brady on 17 June 2005 following a meeting with all staff concerning altered trading hours. The applicant made a comment to Ms Brady and received a response which was upsetting. She recorded the event in her diary at 17 June 2005 in the following terms:
Pam launched "new trading hours" today. Very cynical authoritarian manner. Like it or lump it attitude. She called me in to "discuss the issues" I had (concerns only). I agreed because I thought it was a good opportunity. I expressed my views (through tears). Pam's comments were "for God's sake its only 20 minutes". "I have other people to consider besides you. Deal with it." My concerns are mainly the manner in which the HIC are expecting their staff to fill these new trading hours without consultation from staff.
26. The applicant said she had some time away from the workplace in 2006 for surgery unrelated to the employment and to have extensive dental treatment.
27. In December 2006, the applicant answered a telephone call in the Medicare office which had been made by Denise Dobinson, the regional manager. She said Ms Dobinson was arranging for Medicare personnel to travel on a drought assistance bus. This was a program initiated by the government and required Commonwealth officers to travel between Wagga and Broken Hill and explain Commonwealth services and assist drought affected persons. She said Ms Dobinson was looking for a volunteer and did not require her to ask any other staff person. She said Ms Dobinson selected her to participate in that tour.
28. Ms Brady was away from work on that day and was notified on her return by the applicant that she would be taking part in the drought assistance bus tour. She said Ms Brady was sarcastic in her response and at the end of that day, having been required to arrange accommodation and travel, she said Ms Brady approached her and in the presence of others, said words to the effect this damn accommodation don't you ever volunteer for something like this again (T15, p69-70). The applicant said she felt embarrassed and regarded the comments by Ms Brady as typically unsupportive and negative. The applicant also said during that day she received a telephone call from Ms Dobinson and another Medicare executive congratulating her on making herself available for the tour and was given a briefing of the work that would be involved.
29. The applicant was away between 4 and 11 December 2006 and enjoyed the experience. She said contact had been made with local doctors, hospitals and social workers in drought declared towns. On her return to the Medicare office she said Ms Brady showed no interest and made no enquiries of her. Ms Dobinson later spoke with staff concerning the process of selecting the applicant and suggested to her that she present a summary of her experiences on the drought bus tour to other staff during a routine staff meeting. The applicant said Ms Brady did not ask her to give that presentation until some weeks later when she was asked to do so, on five minutes notice. When presenting from photographs and press clippings that she had retained in her handbag, Ms Brady interrupted her and, in front of other staff members, said words to the effect I have heard that it’s the most boring waste of time. The applicant said she was embarrassed and broke down despite being congratulated by another staff member (T15, p69-70).
30. On 1 February 2007 she said she had a bad week because Ms Brady had bypassed her in normal office chatter and continued to stand beside her on occasions when emails were opened or when she was making telephone calls. A diary entry of 1 February 2007 is recorded as follows:
Bad week with Pam – I feel I can't talk to Pam. Negative attitude. I'm now making a special effort to keep my mouth shut. Denise confirmed we can work flexible hours – Pam wont have it.
31. At February 2007 the applicant said that her health was deteriorating, she was depressed, frequently crying and the relationship with her husband and family was affected. She consulted Dr Angela Bruce her general practitioner.
32. On 22 March 2007 another Medicare officer, Sue Elliott, was acting manager having been allocated higher duties. It would appear from evidence that Ms Elliott gave (refer later) that all CSOs were allocated higher duties from time to time.
33. The applicant recalled that 22 March 2007 was a particularly stressful day. Although she was the back up FAO on that day, the applicant said she remained confused whether she was primarily a FAO or a Medicare officer. She said she had processed four FA applications on that day, each of which required a report to be completed and which prohibited her from undertaking normal Medicare work. She said Ms Elliott approached her and asked her to close her desk, complete the FA reports in a 20 minute period, then return to processing Medicare claims and refer all FA work to Ms Britton. The applicant said the behaviour of Ms Elliott was similar to that of Ms Brady, namely, interfering with her normal work.
34. At the end of that day, and after the office had closed, she said Ms Elliott approached her in an aggressive manner and said words to the effect of I'm not aware of a roster to close early. The applicant said to Ms Elliott that she regarded herself as being invisible, that she had worked hard, she had contributed to the branch but had been overlooked. The applicant recalled that she was crying during that discussion. Ms Elliott offered to continue the discussion at the rear of the office and said to the applicant that she had been instructed by Ms Brady to inform her that she was not to undertake FA work. The applicant again protested that she had worked hard and had been overlooked and said Ms Elliott agreed with her.
35. Between February and March 2007 the applicant attended Dr Bruce and was prescribed Lexapro medication. She said that her moods were quite low, that she would cry at the drop of a hat and was suffering hideous dreams. She found it difficult to attend the workplace. She said she had dreams of swimming in a pond and when she lifted her head, Ms Brady was present and put a foot on her head.
36. The 23rd March 2007 was a half day holiday in the Albury/Wodonga region and the applicant worked until midday. She completed Medicare work only and recalled she felt foolish from the day before (refer paragraphs 27 ‑ 29). She saw Dr Bruce later that day who completed a certificate and recommended that she absent herself from the workplace for two weeks. Another prescription for Lexapro was issued.
37. The applicant rang Ms Brady on Monday 26 March at 8.30am. The conversation is recorded in the diary of that date in the following terms:
Told Pam I'm taking sick leave. Pam replied "shit". I explained briefly I was suffering depression. She said "so am I". Pam asked if it was work related. I told her I would discuss it with her when I returned to work.
38. That conversation is also recorded by the applicant in some notes she said were made following the discussion (T15, p73).
39. In cross examination it was suggested to the applicant that she was approached by Ms Elliott on 22 March 2007 because she had been chatting frequently with (named), a co-worker. It was also suggested to the applicant in cross examination that a diary entry made on 5 April 2007 concerning the inequality of higher duty rotations and discussions with Ms Brady about FA work was incorrect because she was not then working. The applicant agreed that at 5 April 2007 she was absent on sick leave. She could not recall when she made that entry, she agreed she was not an accurate diary keeper and also agreed she was in Singapore with her sister during a period of recreation leave which she took following the expiration of two weeks of sick leave. The applicant was also referred in cross examination to the recording in her claim form of being excluded from higher duties (T6, p22) despite personnel records indicating that she had completed 12 days of higher duties in the period 1 January 2006 to 22 March 2007.
40. The applicant returned to work on 30 April 2007 and previously arranged to meet with Ms Brady that morning before the office opened with the intention of reconciling some differences and discussing work and relationship issues with her. During the discussion, the applicant said she intended to continue to work with Medicare until she retired and she preferred to resolve workplace issues, so that she could continue to work in a reasonable manner. She said she made notes of the meeting which she completed on 30 April during a tea break (T15, p72 and 74).
41. In evidence, and consistent with the notes, the applicant said she and Ms Brady had previously had a good relationship but it had deteriorated over the previous two years. She also said she indicated to Ms Brady that she felt as if she was not trusted and she explained that she was observed by Ms Brady on a television monitor that was located in her office (a camera was fitted to the wall of the Medicare reception area pointed towards the officers' desks).
42. The applicant said she felt as if she was being monitored and had frequently heard Ms Brady say (from her office) lift your head, serve, serve, serve.
43. The applicant also said that other staff members had expressed disappointment in the time she had been away from the workplace and specific reference was made to eight weeks of sick leave the applicant had taken during 2006. She said that Ms Brady had also commented that other staff members had reported that she was not contributing. The applicant said that she felt crushed because she gave 150% to Medicare and she again expressed her confusion as to whether she was regarded as a Medicare officer or a FAO.
44. The applicant said it became clear that her differences with Ms Brady could not be reconciled and the meeting ended about 9.00am when the office was due to open.
45. The applicant worked on 1 May 2007 and recalled that Ms Brady was then icy and quiet. The applicant said that she felt tense.
46. Later that day, the applicant and Ms Brady resumed their discussion from the previous day. She requested a referral to the employment assistance personnel and Ms Brady gave her leaflets explaining the procedures. The applicant eventually met with Catherine Kembrey, the employment assistance officer. The applicant said she discussed her level of distress and depression and the events that had occurred in the workplace, especially the circumstances surrounding the discussions with Ms Elliott on 22 March 2007. Ms Kembrey suggested that the applicant consult Dr Bruce which she did later that day and was given a certificate for two weeks incapacity. A prescription for Lexapro was again issued.
47. In the following two weeks the applicant attended Joel Harras, a psychologist in Wodonga. She also consulted Ms Kembrey. In August 2007 the applicant was referred by Dr Bruce to Robyne Slade, a psychologist who initially attended the applicant fortnightly and later on a monthly basis. The applicant was consulting with Ms Slade at the date of hearing.
48. Compensation was claimed on 18 May 2007 and on the recommendation of Sharon Todd, a compensation officer within Medicare, the date of injury was recorded as 23 March 2007, being the day after the discussions with Ms Elliott.
49. In July or August 2007 the applicant was offered work in the Wangaratta office of Medicare. The applicant had largely been absent from the workplace since May 2007 and it was suggested to her that working in Wangaratta would be part of a graduated return to work initiative. It was intended to be a part-time position of between 10 and 12 hours per week. The applicant thought that travel to Wangaratta was excessive, being a 150km return trip. She said she initially enjoyed the work and fitted in well. She regarded the staff as being pleasant but she struggled with travel. The applicant continued to take the Lexapro medication, she recalled episodes when driving of zoning out and frequently thinking about her prior experiences in the Albury office.
50. Shortly after commencing work in Wangaratta, the applicant recalled receiving a telephone call from Ms Todd, who enquired whether she was coping with the return to work. The applicant said that she was having difficulty driving because she was zoning out and said that Ms Todd had responded by indicating that her driving skills would need to be tested. The applicant said that she was shocked at that response and thought that it was an unusual reaction. The applicant attended Dr Bruce who apparently also thought that driving in the circumstances was excessive.
51. The applicant finished working in Wangaratta shortly after that discussion.
52. In March 2008 the applicant was again contacted by Ms Todd and asked to again try working in the Wangaratta office for one month only, as part of a return to work program. The applicant said she was keen to make the attempt despite concerns expressed by Dr Bruce.
53. After a few days working in the Wangaratta office the applicant learnt that there were two persons working in the Wodonga office of Medicare who lived in Wangaratta. The applicant thought that those arrangements were illogical and she spoke with Ms Todd and requested that she be transferred to Wodonga. She was told later that there were no positions available in Wodonga despite reminding Ms Todd that it was much closer to her home and that she was prepared to work in that office.
54. The applicant was referred by Ms Todd to Kelly Hammond from Konnect Employment Services (Konnect) who were engaged to assist the applicant in obtaining employment elsewhere. A resume was completed with the assistance of Ms Hammond.
55. Whilst working in Wangaratta, the applicant received an email from Ms Todd asking how she was coping with the return to work. The applicant replied that driving was a killer but she was happy working in the Wangaratta office. She said she received a telephone call later that day from Ms Todd advising the return to work initiative was terminated immediately because safety was regarded as an issue. She said she notified Ms Todd that the killer comment had been misunderstood and she preferred to keep working in Wangaratta as part of a proper return to work program.
56. The applicant maintained regular contact with Ms Hammond. A number of job applications were made and the applicant was interviewed. She said she had low self esteem and lacked confidence and was not successful in any job application.
57. On 1 July 2008 the applicant sent an email to Ms Dobinson (Exhibit A2) notifying of her intention to cease employment with Medicare effective from Monday 21 April 2008.
58. On 3 July 2008 the applicant sent an email to Ms Dobinson and Lee Daniels at Medicare requesting her resignation notification be withdrawn (Exhibit A3). The applicant recorded she had submitted her resignation hastily and without thought during a very stressful period which I now regret.
59. The applicant said Ms Dobinson contacted her sometime after 3 July 2008 and advised that the resignation notification could not be withdrawn and all wheels were in motion.
60. When she was asked why she resigned, having previously expressed a preference to continue to work until retirement, the applicant said she had run out of money and had used all of her personal and long service leave. She said her husband was eligible for a service pension and she could receive a part pension as his spouse. She also regarded resignation as part of a process of moving on from Medicare because it had been taking a toll on my health and self esteem. The applicant agreed in cross examination that she and her husband had made an application for service pension in July 2008.
61. The applicant agreed there had been a discussion with Ms Dobinson who said a camera and a monitor had been installed for security purposes because the office safe was located near the manager's office. In the event of any attempt or suspicion of robbery, the manager could activate an alarm. The applicant did not agree that Ms Dobinson had explained to her that the monitor was also to be used to allow the manager to regulate workflow.
62. The applicant said the manager could have regulated workflow by leaving her desk and coming out into the public area. Indeed the applicant said there was nothing unusual about Ms Brady leaving her office, coming out into the public area and asking her and others to serve customers. However, she said, Ms Brady’s appearances for those reasons was excessive.
63. The applicant disputed a contention put to her that her primary role was as a Medicare officer and Ms Britton had been the designated person responsible for FA work. It was suggested to the applicant that the volume of Medicare work far exceeded the volume of FA work and there would be no need for the applicant to be a full-time FAO. In response, the applicant said she had assumed that that would be her role. She agreed that her duty statement had not been altered to record that she would be a FAO and that she had never been a full-time FAO. She maintained that she did not know whether she was a FAO or a Medicare officer. She denied she was frustrated in not undertaking FA work on a regular basis.
64. The applicant was asked to consider histories taken by Dr Ackerman (T20, p96) and Dr Kenny (Exhibit A1, p2) that her problems with Ms Brady commenced in 2004 and not 2005 as alleged. She was also asked to consider a report from Dr Cole (Exhibit A7, p2) that her problems commenced in late 2004 or early 2005. The applicant said she could recall no problems with Ms Brady in 2004 and could not recall giving a history to Dr Ackerman that she was isolated by Ms Brady in 2004. She also acknowledged that she had a poor recollection of the consultation with Dr Ackerman which she explained was probably the effects of the depression that she was suffering.
65. The applicant agreed she was treated for depression in 1999 at or about the time that she transferred from the Wodonga office to the Albury office. She also agreed she was later treated by Dr England, a psychiatrist in Albury, for about three years and who also prescribed Lexapro.
66. The applicant was taken to the clinical notes of Dr England (Exhibit R2) who recorded during his first consultation on 11 February 2002 that the depression had its onset 3 / 4 years ago when she was working at the Wodonga office and following a disagreement with the manager. Dr England recorded, worst episode by far à Gail exploded and lost control of temper.
67. The applicant said that the history recorded by Dr England was partially correct. She said she had telephoned Ms Brady and asked whether there were any positions available in the Albury office because she was then looking to work for longer than the 15 hours that she was currently allocated in Wodonga. It was suggested to the applicant that she made the enquiry to leave Wodonga and work in Albury because of her behaviour in the Wodonga office. The applicant said that her manager in Wodonga was abrupt and rude. The applicant agreed she must have given the history to Dr England that she exploded. When the applicant was informed that Dr England had recorded that she misperceives things – hideous – road rage à feels excluded by friends she said that he misinterpreted me. Equally she disagreed with his note mood – hates negative vibes – if no one says hello she feels flat – then can't stop crying – short fuse. The applicant disagreed with the suggestion put to her that she in fact was a negative person as opposed to Ms Brady (and other persons) being negative, as she had alleged.
68. The applicant acknowledged that she had notified Dr England that she would work with Medicare for couple more years then have courage to try something completely different (Exhibit R2, clinical notes of 9 December 2002). It was suggested in those circumstances that it was her intention to leave Medicare in about 2004 being the year, on the histories of Drs Ackerman, Kenny and Cole that she commenced having difficulties working with Ms Brady in the Albury office.
69. The applicant was then taken to her claim for compensation. She agreed that it was correct and true. She said she completed it without reference to her diaries and whilst she had initially recorded Ms Britton as a witness (T6, p23) she was later advised by Ms Britton that she would not support her application because she thought that her job would be in peril if she gave evidence.
70. The applicant indicated that she would be calling Glenda Dynon and Rachel Bailey former workmates as witnesses.
71. The applicant was challenged concerning the events in the workplace which gave rise to her injury, as alleged, and found within her claim form (T6, p 22). One of those events was the exclusion from working higher duties. An examination of personnel records indicated that the applicant had undertaken 12 days of higher duties between 1 January 2006 and 22 March 2007. The applicant said she had no recollection of working higher duties. The applicant was also informed that the personnel records indicated that Ms Britton had worked 12 days of higher duties in the same period. The applicant said she had no knowledge of whether other persons worked higher duties and regarded her exclusion from those duties as a stressor. She also agreed that she had given a history to Dr Inglis Synnott of exclusion of higher duties (T18, p79; Exhibit R12, p4; and Exhibit R16, p2).
72. An examination of the applicant's medical records indicated that she was prescribed Arapax by Dr Healey, a doctor in the same clinic as Dr Bruce, on 25 January 2004. The applicant said she could not recall the reasons for that prescription but acknowledged that Dr Healey recorded in her notes that Dr England had previously been prescribing that drug and she had also diagnosed the applicant as suffering from depression. It was suggested to the applicant that she could not have been depressed then because of workplace issues but rather she was not coping at the time. The applicant agreed that was probably true.
73. The applicant agreed that in or about 2004 and 2005 she was depressed because of the health of her son Simon, who had previously suffered severe injuries in a motor cycle accident in 1995. She also agreed she had suffered stress from 1995 and had been prescribed anti-depressant medication.
74. The applicant acknowledged that Dr Brewer (another doctor in the same clinic as Dr Bruce) took a history on 1 May 2005 of her suffering from depression related to ongoing issues with son's behaviour since mva 9 years ago; Arapax for 4 years. The applicant said she could not recall taking anti-depressant medication for 4 years, could not recall giving a history of depression before 2005 to Drs Synnott and Ackerman, could not recall whether Ms Slade had asked her whether she had taken Lexapro or Arapax and could not recall the questions asked of her by Dr Cole. Additionally, the applicant could not recall consulting Dr Bruce on 3 September 2006 where a history was recorded of depression + issues at work.
75. It was put to the applicant that the treating records from the Albury/Wodonga Family Medical Centre did not record any history throughout 2005 of the applicant attending for any reason associated with workplace issues. The records indicate an attendance for other reasons, on 11 occasions, and in the circumstances it was suggested to the applicant that her allegations of workplace events in 2005 were trivial. The applicant disagreed. She said the workplace matters were important, she chose not to discuss them with her doctors in 2005 but could not explain why she did not bring workplace issues to their attention.
76. The applicant agreed she commenced seeking employment outside Medicare in 2007 with the assistance of Konnect. She sought an advertised full-time position with the Wodonga Hospital because she felt that she was then well enough to work. The applicant said she felt she could work other than at the Albury office of Medicare. Indeed Dr Bruce had suggested she seek a transfer to the Wodonga Medicare office which the applicant agreed she would prefer and which she regarded as being suitable. Additionally, the applicant thought that but for the need to drive to Wangaratta she felt she would have been capable of working in that office because she enjoyed the work and the staff.
77. Prior to being engaged with Medicare from 1994, the applicant had undertaken administrative work with the Matador Motel in Albury for nine years. She agreed that there was no physical restriction from returning to work and she had sent a number of resumes to Commonwealth institutions including the Australian Tax Office, the Department of Defence and Centrelink. The applicant had an interview with Centrelink but crashed during it. She also scanned local newspapers for job vacancies and had sent resumes to the Albury Surgical Group, the Lutheran Aged Care Facility, the WAW Credit Union and to Harris Lieberman, Solicitors.
78. In re-examination the applicant said that she had assisted with the care of her son following his motor vehicle accident in 1995. She took between 10 and 14 days off work immediately following the accident and later she transferred to a Medicare office in Melbourne where she worked between September 1995 and March 1996. The transfer allowed her to be close to him whilst he remained an inpatient in hospital. When her son returned to Albury she continued to care for him but she did not take time off work and said his care did not interfere with her work.
Glenda Dynon
79. Ms Dynon was a Medicare employee in the Albury office on a part-time basis between 2000 and 2007. Her evidence in chief was largely an expansion of the contents of a statement she provided dated 19 October 2007 (T29, p153-156). Throughout her employment, Ms Dynon worked under the supervision of Ms Brady.
80. Ms Dynon said the FA work within the Medicare office was largely undertaken by the applicant and Ms Britton. She completed FA training in March 2006 and was familiar with it. She said FA work required greater effort than the typical processing of Medicare claims and said that a simple FA application would take between one and two hours to complete, whereas more complex matters, for example involving separated families, might take days to complete and require making a number of external enquiries. She said Ms Brady prohibited the applicant and Ms Britton sitting next to each other and thought that was unreasonable because they could have supported each other especially in complicated FA claims. She said that Ms Brady also prohibited her and the applicant discussing FA claims which she regarded as being discriminatory. She said Ms Brady was not impressed that we had to do FA work and she did not want Centrelink people in the office.
81. Ms Dynon said the applicant was keen to undertake FA work and she had regarded it as being a new challenge. She regarded the applicant as hardworking, helpful and of considerable ability.
82. Ms Dynon said Ms Brady monitored the applicant's work to a greater degree than others and there were occasions when she observed Ms Brady watching the applicant on the monitor in her office and verbally criticising her. She said Ms Brady used to watch it [the monitor] like a hawk and Ms Brady had also, on occasions, in an audible voice, said words to the effect what is she doing when referring to the applicant. On occasions she was also heard to say why are they talking when she was observing the applicant and another employee. Ms Dynon agreed that Medicare employees did talk with each other in the workplace and 90 per cent of the conversations were always work related.
83. Ms Dynon was aware that the applicant was absent during 2006 because of personal illness and because her son's health had deteriorated. She said Ms Brady was unsympathetic to her and often made comments that the applicant lacked commitment to her work. Ms Dynon regarded those comments as unfair and the absence of the applicant from the workplace was the subject of a comment made by Ms Brady during a staff meeting. Without identifying the applicant directly, all persons present were aware that Ms Brady was referring to her. She noted that the applicant, who was present, was upset at that comment.
84. Ms Dynon also said that Ms Brady attempted to restrain staff members socialising outside work. She said during an assessment by Ms Brady of her, she expressed unhappiness about occasions when she and the applicant had socialised outside the workplace.
85. In cross examination, Ms Dynon said she could not say what Ms Brady was thinking from time to time but it was clear from her body language and by comments that were made whilst she was observing the monitor that she was directing criticism towards the applicant. She said she had kept records of incidents which did occur in the workplace in diaries but they had been disposed because she did not think that she would ever need them.
86. Ms Dynon said Ms Brady would not talk to the applicant, Ms Britton or her about concerns that they all felt about conducting FA work and about having a FAO work on a Saturday roster. She said attempts by the FAOs to arrange a meeting with Ms Brady were unsuccessful because Ms Brady would only meet with one officer at a time.
87. Ms Dynon agreed that Ms Brady, as the office manager, was responsible for supervising staff. She also agreed that it was important that customers were served without delay and the monitor in Ms Brady's office permitted her to determine whether there was any delay in customers being served.
Rachel Bailey
88. Ms Bailey was an employee of the Albury Medicare office between August 2006 and October 2007. She did not work after July 2007 when a discrepancy of $501.00 was alleged. Charges were laid, Ms Bailey resigned from Medicare and a Magistrate placed Ms Bailey on a good behaviour bond.
89. Ms Bailey adopted a statement she completed on 19 October 2007 (T29, p150-152). In her statement, she recorded she had noticed the applicant was not seated next to either of the other two FAOs which she thought was unusual. She learnt that the seating arrangements for FAOs were determined by Ms Brady, the office manager, but she was not aware of her reasons.
90. Ms Bailey said that there were a number of occasions when she was at or near Ms Brady's office and was aware that she had been observing a monitor and was audibly expressing the words to the effect why is she doing that. Ms Bailey had no doubt that Ms Brady was referring to the applicant because the applicant could be observed on the monitor. She also noted that Ms Brady frequently spoke to the applicant in an abrupt or blunt manner.
91. Ms Bailey acknowledged that Ms Brady was responsible for quality control in the office which she routinely undertook with staff and which she estimated to be on one occasion every fortnight. Yet the applicant's work was monitored for quality on three or four occasions per week.
92. Ms Bailey said Ms Brady would frequently hover around the applicant whilst she was working or when she was using the telephone. When Ms Brady and the applicant were in the same room together, the atmosphere was tense. She recalled the applicant's demeanour deteriorated during the time that she worked in the Medicare office.
93. The witness said that she had been instructed by Ms Brady that if she had any questions she was to approach her for advice. However, the practice within the office was for staff to ask each other. Ms Bailey said that she frequently went to the applicant to seek advice or assistance which was willingly given. She regarded the applicant also as being a competent and able staff member.
94. Ms Bailey also recalled an occasion where she arrived at work one morning and found the front door closed. She also recalled some other Medicare employees had gathered at the front of the office and had been denied access because the door was locked. When access to the office was eventually permitted, she noticed the applicant was already seated and working and it was obvious that both she and Ms Brady had been in the building together. She regarded that circumstance as unusual because it was well known amongst staff that the applicant and Ms Brady did not get along well (T29, p151).
95. Ms Bailey was not a FAO and did not have knowledge of the work involved in processing applications of that type. However, she said it was not unusual for a FAO to spend up to half an hour with a customer and sometimes up to three hours completing forms.
96. In cross examination Ms Bailey agreed that she did not work after July 2007. She said she could not recall being absent for 20 days previously because of a depressive illness.
97. Ms Bailey agreed that Ms Brady was concerned about the quality of her work and she did not achieve quality control standards until six months after commencing the employment. She also agreed that there were occasions when she was late attending the workplace which she said arose out of her responsibilities as a single mother of two young children. She said on the occasions when she knew she would be late attending the workplace she would ring Ms Brady.
98. Ms Bailey agreed that she did not know the nature of the meeting between Ms Brady and the applicant on the occasion when she was denied access to the office. She assumed, by the applicant's appearance when she saw her behind her desk, that she was upset.
Catherine Kembrey
99. Ms Kembrey is a psychologist registered for practice in New South Wales, to whom the applicant was referred by the employer as part of an employee assistance program (EAP). She saw the applicant on a number of occasions between 4 May 2007 and 18 September 2007. Her clinical notes were received into evidence (Exhibit A6).
100. Ms Kembrey said the applicant was distressed and weepy at first interview which she did not regard as unusual. She observed the applicant was more distressed at a second interview four days later. Her notes record the applicant said she was haunted about an episode eight years earlier concerning the incorrect processing of a claim. There was also a confrontation resulting in referral to a psychiatrist and medication being prescribed. Ms Kembrey acknowledged that she did not take notes of the manager's harassment because she wanted to be emotionally present (with the applicant).
101. On 18 May 2007 Ms Kembrey assessed the extent of the applicant's depression and stress by reference to diagnostic scales. The results indicated that the applicant suffered a greater degree of depression and stress than the majority of the general population.
102. By 15 June 2007, Ms Kembrey assessed that the applicant was more in control and by 18 September 2007 the applicant was much stronger.
103. Ms Kembrey said that it was her usual practice to consult with persons on three or four occasions in EAP referrals only. She concluded that there may have been an incident in the workplace or several incidents to cause the applicant to react in the manner that she did. She understood that there could be a cumulative effect by events over a period of time and there may have been an affect upon her by an event eight years earlier. She had assumed that the applicant had previously enjoyed a happy life but her workplace had caused her to suffer reactive depression. She did not think the previous injuries suffered by her son were the cause of her current condition but thought that the applicant may have been vulnerable.
104. In cross examination Ms Kembrey said that she was not engaged to form or express an opinion upon the relationship between work and any injury. She diagnosed depression tentatively but that diagnosis could only be confirmed by a greater number of consultations and was not intended to amount to a firm diagnosis. She thought that the depression suffered by the applicant was reactive. That is to say, the applicant was reacting to events in the workplace. Ms Kembrey agreed that she did not take notes of specific workplace instances and said she would not give an opinion upon the relationship between work and any subsequent injuries because she was not there.
Susan Elliott
105. Ms Elliott was called on behalf of the respondent. She has been employed by Medicare in the Albury office for approximately 20 years. She has known the applicant since 1999. Ms Elliott completed a statement dated 31 July 2009 received as Exhibit R4 which she said was true and correct and was adopted by her without amendment.
106. Ms Elliott was aware that the applicant, Ms Brady and Ms Britton all completed a nine week FA training course in 2005 and she was the acting manager during their absence. She recalled when those officers returned there was a management direction that there should not be any us and them mentality and the FAOs were to be integrated back into the office. Thereafter, FA work was done by the applicant and Ms Britton only.
107. Ms Elliott recalled she was acting manager on 22 and 23 March 2007 and had received instructions from Ms Brady that Ms Britton was to undertake the FA work on 22 March 2007. Ms Elliott said that she recalled the applicant was undertaking FA work that she was not supposed to be doing which was the subject of discussions that were initiated by Ms Elliott with the applicant, privately, at the end of that day.
108. In her statement, Ms Elliott said that higher duties were allocated to suitably qualified staff members whilst Ms Brady was absent and she thought the allocation had operated evenly. However, she also thought that it was difficult for the applicant and Ms Britton to be allocated higher duties because they were designated FAOs. Ms Elliott said in evidence that higher duties were not allocated by a roster.
109. Ms Elliott said she has worked under Ms Brady for approximately 11 years and she got on reasonably well with her. She regarded her as a good colleague and efficient manager. She had no recollection of Ms Brady ever telling her or anyone else in the office that Medicare claims were being processed slowly. She speculated that would happen if an officer was doing something they were not supposed to do or had been chatting with customers. She said Ms Brady can be assertive but had not ever seen her to be over assertive. She could not recall Ms Brady being assertive towards the applicant. Ms Elliott said that she could not ever recall Ms Brady asking the applicant to work faster but there were occasions where she saw Ms Brady speak with the applicant whilst she was serving a customer but she had no knowledge of what was spoken. She did not notice any tension between Ms Brady and the applicant after they returned from FA training in Sydney but added that she wouldn't say they were friendly. She regarded Ms Brady as disciplined and the applicant sometimes being domineering. In her statement at paragraph 18, Ms Elliott said that the applicant was an emotional person and ran hot and cold. She explained that description as the applicant being a person who would appear to be very good friends with you one day and hardly speak to you the next day.
110. Ms Elliott was aware that processing FA applications was more intensive than processing Medicare applications and could take a longer period of time. She was also aware that reports were written as a result of FA applications. She said one person would usually be allocated as a FAO but the other officer would act as backup in the event of more than one FA applicant being present in the office.
111. Ms Elliott reaffirmed the content of her statement at paragraph 7 where she was directed by Ms Brady to have Ms Britton undertake the FA work on 22 March 2007 and for the applicant to be back up only.
112. Ms Elliott recalled the circumstances in the workplace on 23 March 2007 where she observed the applicant undertaking FA work. She said she was not happy that she was doing it and reminded her that she was only to undertake FA work as a backup. She recalled the applicant was at the back of the office filing documents and had not been serving a FA customer. She added even if a FA customer had been present, there would be no reason for her to be at the back of the office filing documents.
113. Ms Elliott said there was a policy operating within the Albury office that FAOs would not be seated together. She said that this was to ensure that only one person would be the designated FAO and the other would be a backup.
Graham Smith
114. Mr Smith is a regional manager of Medicare who was responsible for the Albury office between July 2003 and October 2005 and from March 2009. He completed a statement dated 15 June 2009 which was received as Exhibit R5.
115. In the statement, Mr Smith said that he visits all of the Medicare offices within his region at least once every five or six weeks. His role includes responsibility for matters concerning staff, recruitment, property, technical systems, processing applications and financial audits.
116. He said the Medicare policy with respect to allocation of higher duties is based in equity and responsibility is delegated to each branch manager to have a system which takes account of career aspirations and skills of CSOs.
117. Mr Smith recalled speaking with the applicant privately in approximately April 2005 for about 10 minutes where she thought that she was not receiving her fair share of higher duties (Exhibit R5, paragraph 10). He investigated her concern. After speaking with Ms Brady and examining records, he was satisfied that higher duties had been equitably allocated and he notified the applicant of his conclusions.
118. Mr Smith recorded in his statement that he had never observed bullying or disharmony in the Albury office but acknowledged he did not spend a large amount of time in it. He also recorded he had given Ms Brady advice and guidance on making decisions being equitable in the workplace and developing relationships. He recorded she was not exceptional or difficult in this regard. He also recorded he had not ever received any complaints about Ms Brady's management of the Albury office.
119. In evidence Mr Smith said he regarded the Albury office as being competently managed, was efficient and had met all of the performance objectives of Medicare.
120. In cross examination, Mr Smith said commencement of FA work was a significant program for Medicare and there were some initial teething problems, especially with its management and its practice. He said care was needed in implementing the FA processes and practice and the work was marginally more complicated than Medicare processing. He did not regard FA applications as being any more sensitive than the Medicare applications.
121. Mr Smith recalled security cameras were installed in the Medicare office in approximately 2007. He said large amounts of money were stored on the premises and there was a risk of robbery. He said the camera relayed messages to a monitor in the manager's office who could activate an alarm in the event that a robbery was perceived or in progress. He said that the camera also permitted the manager to observe the busyness of the office and to allocate or change staffing or seating arrangements.
122. Having acknowledged that he had not spent a great deal of time in the Albury office, he acknowledged that bullying may have occurred without complaint being made to him. Nonetheless he said that he has the ability to sniff out such things because he speaks with, and listens to staff, but also acknowledged that he was not infallible.
123. In re-examination Mr Smith said that he would not expect FAOs to file documents when customers were waiting and there was no necessity to file documents immediately after a customer enquiry had been completed. He said so long as the documents were not within the view of other customers, they could remain at the officer's desk and be filed at a later time.
Pam Brady
124. Ms Brady is the manager of the Albury Medicare office who completed a statement on 5 June 2009 which was received into evidence as Exhibit R6.
125. Ms Brady has been an employee of Medicare since 1991 initially as a CSO and has managed the Albury office since 1998.
126. The Medicare office in Albury was the subject of a view between the parties, their representatives and the Tribunal on the evening of the third day of the hearing. Ms Brady said in evidence (confirmed later when we attended the view) that her office is located at the rear of the customer section behind a wall to which the public do not have access. A window is fitted within the wall but from her desk Ms Brady is unable to see staff and customers. A television monitor is mounted on a wall in her office to the right of her desk which displays images from a camera located in the customer section. The camera does not allow Ms Brady or any other persons observing the monitor to observe the entirety of the customer section of the office and an unobstructed view is only possible when Ms Brady or the acting manager leaves the office desk and stands at the window. The monitor is primarily used in the case of actual or risk of burglary or in the event that customers are aggressive. Additionally, it is used to observe staff to ensure that customers waiting to have claims processed are dealt with promptly. Ms Brady said the camera is programmed to take differing images throughout the customer section at 10 second intervals and this allows her to observe CSOs working.
127. Ms Brady said that there have been numerous occasions when she has observed staff talking with customers whilst other customers are waiting to be served. She said on those occasions she would be frustrated and she would also on occasions speak to a CSO and remind them of their service obligations. Ms Brady said from the monitor she was only able to observe the PC screens of the CSOs who worked closest to the dividing wall between the customer section and her office.
128. In her statement, Ms Brady referred to the nine week training program in Sydney where she, the applicant and Ms Britton attended under the supervision of Centrelink officers to learn the operation of FA claims and processing. She agreed that she, the applicant and Ms Britton travelled from Sydney Airport to the training venue in a taxi. She said she sat in the front seat of the taxi because she is frequently car sick as a passenger and a conversation in the circumstances was not possible. She denied that she was ignoring the applicant during that journey. She said the applicant had no reason to form any opinion that she ceased communicating with her and there was no rift between them.
129. During the training in Sydney, Ms Brady said that she did not socialise after hours with the applicant and Ms Britton because she wanted (her) own space and she returned to Albury on weekends whereas the applicant and Ms Britton stayed in Sydney. She recalled that the applicant had expressed her upset at not being seated next to Ms Britton during the training and asked her to intervene. Ms Brady said she suggested to the applicant that she should raise that issue with Centrelink officers because they were running the training program (Exhibit R6, paragraph 8).
130. Ms Brady said, immediately prior to returning to Albury at the completion of the training program, concern was expressed at an external management level about the desirability of a smooth integration back into mainstream Medicare work. Ms Brady said that she, the applicant and Ms Britton had been trained for six weeks in Sydney and then for three or four weeks in a Centrelink office and then under the supervision of a Centrelink officer for another three or four weeks in the Albury Medicare office. The concern by senior management was that there should not be an us and them mentality between Medicare officers and those officers processing FA applications. She recalled that the applicant had frequently expressed a preference to sit beside Ms Britton during the training phase but when it had completed it was decided that all officers, the applicant and Ms Britton included, should be part of a pre-existing rotation of being seated at different positions within the office on a monthly rostered basis.
131. The issue of seating arrangements was the subject of discussion on a number of occasions at meetings in the Albury office and the desirability of working as a team was emphasised by Ms Brady. She also emphasised that there was to be no distinction between those officers who process Medicare applications only and the officers who also had FA training (Exhibit R6, paragraphs 9-12).
132. In response to the applicant's allegations that she was unfairly monitored in her work, Ms Brady said Medicare engaged a system of computer generated quality control which randomly selected work which had been completed by officers. That is to say, Ms Brady did not select the officers which were to be the subject of quality control over their work. She said the system operated on the basis that it would decide whether the work of a number of different officers would be checked on a day-to-day basis. Ms Brady said the applicant had not ever complained to her about the frequency of quality control over her work and she was at a loss to understand why Ms Bailey had said in evidence that the applicant had been monitored for quality control on more occasions than other officers. Ms Brady said that the applicant had progressed incrementally to CSO 9 level and there was nothing about her work performance which obstructed that progression. She said she had never disciplined the applicant in relation to the quality of her work with the exception of occasions where customers were waiting to be served because the applicant was chatting with others or had been absent from her desk (and was asked to return to it) or was filing documents which could have been completed at a later time. Ms Brady said that she did not have an issue with officers talking and working at the same time but she was frustrated when she saw officers talking with customers whilst not processing their applications and when other customers were waiting to be served.
133. Ms Brady agreed that the applicant had raised with Mr Smith her belief that she was unfairly being denied higher duties in the months prior to travelling to Sydney (Exhibit R6, 17-20) but said that an inspection of the higher duties records by Mr Smith had revealed that the applicant had not been discriminated. She said Mr Smith was satisfied the applicant did not receive any lesser allocation of higher duties than other officers in the period leading up to 2005. In 2006 the applicant was absent for considerable periods of sick and personal leave but subject to those times, the applicant was rostered to perform higher duties equally with other officers of sufficient seniority and who wished to undertake those duties. Ms Brady said that higher duties were only available when she was either on flex leave or sick or when on holidays.
134. In about 2005, Medicare decided to open its offices on Saturdays and staff were asked to work on a voluntary basis. That is to say, staff were not rostered to work against their will. Ms Brady said that most staff, including herself, were not keen to work on Saturdays despite the office not being as busy as weekdays and the opportunity to work overtime. However, it became more difficult to have staff agree to work on Saturdays when Medicare decided to cease paying Saturday overtime. The applicant made it clear that she was not prepared to work on Saturdays although Ms Brady indicated that there was an expectation held by Medicare that she should make herself available to do so and on occasions she did work some Saturday mornings. A new staff member, Kerryn Jones, joined the Albury office in 2004 as a part-time officer (having previously being a manager in the Parramatta office of Medicare). She became a full-time officer in June 2005 and was keen to undertake extra work. Ms Brady said if she was away on a Thursday and Friday she would allocate higher duties to Ms Jones on those days and on the following Saturday because it reduced the number of handovers and it contributed to greater efficiency in the office. Indeed Ms Brady recorded in her statement (paragraph 22) that the applicant had suggested to her that any higher duties work on Saturdays should be given to Ms Jones.
135. Ms Brady was also aware that the applicant had expressed concern about her conduct concerning the use of telephones during working hours. She said that there were two telephones located in her office, another telephone at the seventh desk and a cordless hands free telephone located at the end of the officers' desks near the dividing wall. She said that personal telephone calls were to be taken behind the dividing wall and on occasions the applicant did take personal telephone calls using one of the telephones on Ms Brady's desk. She said on those occasions she would leave the office and give the applicant privacy. She was aware that a number of the calls were related to, or from her son and the calls could take between 10 and 15 minutes. She said that she did not have any issue with the applicant taking calls of that nature nor did she ever remonstrate with her for taking those calls. She said in the event that she answered a telephone call of a person wanting to speak with the applicant or any other officer she would ask whether it was urgent and if it was not, she would either ask the caller to ring back or she would take a message and pass it to the CSO to return the call when they were not busy. She did agree that she became cranky if personal telephone calls were being made in the customer section of the office and if customers were waiting to be served.
136. Ms Brady was aware that the applicant complained of neck injury in January 2005 with the report of it having occurred on 13 December 2004. The report was entered in her diary which was received into evidence as Exhibit R7. She recalled that the applicant complained that her neck was injured by her having to turn to her right to observe any waiting customers when she was seated at the first desk inside the front door of the office. The injury was the subject of a further discussion with the applicant on 25 February (refer Exhibit R7). Ms Brady was notified that the applicant had made a recording in her own diary on 24 January 2005 following a report of the neck pain and had recorded that she had said the applicant was pulling the wool over her eyes. Ms Brady said that she had not reported the neck injury to any other persons and she had never used the expression pull the wool over her eyes. She said the first desk inside the office was modified and a mirror was fitted to the wall to relieve any officer working at it from turning to observe any waiting customers.
137. In her statement, Ms Brady referred to the drought bus initiative of December 2006. She recorded that Medicare had a number of officers attend rural and remote locations to provide assistance to persons who were affected by drought. The applicant travelled as part of that program between 4 and 10 December 2006 and when she returned to the office, she asked whether she could speak to staff concerning her experiences. Ms Brady recorded in the statement that other staff did not show a great deal of interest and the applicant was disappointed.
138. In evidence, Ms Brady said it was not a condition of being part of the drought bus initiative that officers report to their colleagues when they returned. She thought that the applicant would want to give a report to other officers in the Albury office in order to share her experience. Ms Brady agreed that during the presentation she made a comment, based on what she had heard from other persons in Medicare outside Albury, that the experience was hot and boring. She agreed that the applicant did complain to her later that that comment was derogatory. However, Ms Brady said it was not intended for that purpose and she apologised to the applicant.
139. Ms Brady said she was away from work on 22 and 23 March 2007 during which time Ms Elliott was acting manager. She learnt that there had been a verbal disagreement between Ms Elliott and the applicant and she intended to discuss this later with the applicant when she returned to work.
140. She said she recalled a telephone call from the applicant on 26 March 2007, advising her that she intended to take leave between 26 March and 7 April, having obtained a medical certificate from her doctor. Ms Brady said she could not recall the entire conversation but thought that it was a reasonable normal conversation. She thought she was probably surprised by the application for leave and had no recollection that the conversation was nasty. She said unplanned leave has a major impact on Medicare branches because Medicare is a customer service organisation. Unplanned leave is high and is a major item of discussion at Medicare conferences. She said that absenteeism is frequently discussed at the management level and strategies are also discussed to encourage attendance in the workplace. As a branch manager, she said she was required to explain absent employees and form opinions about whether the absence is reasonable and whether there was any pattern of absenteeism amongst officers.
141. Ms Brady was then referred to the meeting of 30 April 2007 which was initiated by a telephone call from the applicant on 27 April requesting the opportunity to meet and discuss a number of issues. Ms Brady said that she had not seen the notes completed by the applicant following the meeting (T15, p73-74). Ms Brady said that she made notes also of the discussions and they were attached to her statement as Annexure B. She said that she notified the applicant that she would make notes during the meeting and would later have them typed.
142. Ms Brady said that she was not sure what she expected from the applicant and was not aware that the applicant had so many issues that she wanted to raise. She said that she felt guarded during the meeting and felt that she was being attacked. She recalled the applicant appeared to be irrational and also recalled the applicant continually telling her that she was not looking for an argument. She also recalled persistently asking the applicant to tell her what the issues were that concerned her.
143. Ms Brady said that she would contact the human resources section of Medicare and her manager and report the discussions but the applicant protested and said that she would be outnumbered.
144. Ms Brady said that she was not aware until she was giving her evidence that the applicant had lodged a written complaint against her on 17 December 2007 (ST 59, p119).
145. In cross examination, Ms Brady said that she had been an employee of the Health Insurance Commission (HIC) since 1991, had been an acting manager with Medicare in 1998 and appointed to the Albury Office Manager in August 1998. She said that she had undertaken a number of management courses with the HIC but she held no formal qualifications from educational institutions. Her training also extended to courses in recruitment, office performance and delivery of services. She said that she had been the subject of monitoring by human resource consultants from Sydney for a period of three months and was also familiar with key performance indicators (KPIs) imposed by Medicare with respect to delivery of service to customers. She said there was an expectation of her that in the event that KPIs were not achieved, she would undertake investigations and ensure that they were.
146. Ms Brady agreed that the typed notes of her conversations with the applicant on 30 April, 1 May and 2 May 2007 (Annexure B) were a faithful recording of the discussions. She recorded her own thoughts and references to management matters, performance issues and the possibility of complaints. She said she did not consider the applicant would commence litigation and said the applicant had told her that she did not know whether she would be making any work related claims.
147. Ms Brady recalled that the processing of FA applications on behalf of Centrelink was a challenging and complicated system. She said that new skills were learnt by her, the applicant and Ms Britton which involved extensive training in Sydney and later in a Centrelink office and in the Albury Medicare office under Centrelink supervision. She recalled that there were some initial teething problems and the applicant and Ms Britton would frequently seek assistance from each other. She said she did not initially discourage them from talking about FA applications or queries that they had but she did ask them to return to their respective desks to process Medicare applications when customers were waiting.
148. Ms Brady confirmed that there was a perceived risk of an us and them mentality within the Albury office between dedicated Medicare officers and those officers who had FA training. Later, the applicant and Ms Britton were separated from each other and occupied desks at each end of the office because FA work was regarded as sensitive and customers deserved privacy. Thereafter, the applicant and Ms Britton would undertake the FA work on a roster of alternate weeks. That is to say, the applicant would undertake FA work for one week and Ms Britton would perform that work in the following week. In the event that there was more than one FA customer waiting, they would both serve. In recent times, each customer entering the office would take a numbered ticket and would be called by number. In the event that a FA customer was called to a Medicare officer, the customer would be asked to wait until one of the two FAOs was available to deal with their enquiry.
149. Ms Brady agreed that she deliberately caused the applicant and Ms Britton to work separately from each other because their primary role was as Medicare officers and seated them at each end of the office to ensure privacy for FA customers. In a Memorandum found at T10 commencing at page 44 (in response to queries raised of her by Ms Todd, the workplace safety manager) Ms Brady said that she did not isolate the applicant from her colleagues. She agreed that the applicant might have perceived isolation and recalled that it was expressed during the meeting of 30 April 2007. She denied a suggestion put to her in cross examination that when they came back from training in Sydney, she could not wait to separate them because you were annoyed you couldn't speak to one without the other being present. Ms Brady said that she did not resent the applicant and Ms Britton being friends. She acknowledged that the FA work was complex and that she did not have any concern about the applicant and Ms Britton speaking with each other about FA work as long as it was not at the expense of other waiting customers.
150. Ms Brady acknowledged that she would have preferred Medicare not to have undertaken FA work because it slowed the processing of Medicare applications. She agreed that she did observe staff from the monitor in her office and also agreed that when watching the monitor, she would have said words to the effect of come on (officer's name) serve but that was an expression of her frustration of customers having to wait when she thought that officers were taking too much time to process applications. She said the monitor had its primary function as a security aid but she did use it because of her paramount consideration of achieving KPIs, one being the serving of Medicare customers in less than 10 minutes. She said, she was not focussed on the applicant but rather was concerned that all staff met the KPIs.
151. Ms Brady said that she was unable to see the computer screens of any of the officers except the screen of the officer closest to the dividing wall. She denied having any knowledge of what was being displayed on the other computer screens unless she was in the customer section standing near or behind other officers. She denied that she would hover behind or near the applicant and denied that she stood near the applicant when she was making telephone calls.
152. Ms Brady said that the applicant was not regarded always as a team player. She recalled during the meeting of 30 April 2007 the applicant frequently asking how she was perceived as fitting into the office and also saying she was unsure what her job was. Ms Brady said that she attempted to reassure the applicant that she was a Medicare officer and a FAO. She said that she had no problems with the speed or accuracy of the applicant's work but said that the applicant thought that officers should serve or process the same number of customers (Exhibit R6, paragraph 39).
153. Ms Brady said that she had thought that her working relationship with the applicant had deteriorated over a two year period since the commencement of the FA work in 2005. She said she and the applicant were never best friends but she had previously held a good working relationship with her. In retrospect, she thought the FA work had created low morale within the office and an us and them attitude had emerged which had contributed to a deterioration in the relationship. She disagreed that she had been abrupt or curt with the applicant and also disagreed that she had ignored the applicant. She agreed that she may have been assertive. Ms Brady said she could not recall in any detail, a telephone discussion with the applicant on 26 March 2007 where she rang notifying of her intention to take personal leave from that date until 7 April. She said she could not remember whether she said shit in response to the notification by the applicant of her intention to take leave (refer T15, p73) and possibly did say so am I when the applicant notified her that she was suffering stress/depression. Ms Brady said that if she had used those words she would have intended them to mean that she was also feeling stressed about the situation in the workplace. When it was suggested to her that her response was flippant, Ms Brady said that the response, if made, was probably not very compassionate.
233. The report from Dr Akkerman was disappointing. It appears to have been recorded in a superficial manner. The absence of any detailed history was noteworthy.
234. All of the doctors who provided reports reached the same conclusion with respect to diagnosis, namely, adjustment disorder with depression and mixed anxiety. There were differing opinions expressed as to whether the applicant continued to experience that condition. Nonetheless, the uniformity between the doctors with respect to diagnosis was remarkable as also were the opinions expressed (excluding Dr Akkerman) that there was an association between the workplace and the resultant illness. However, all doctors expressed their opinions on the basis of the history given to them by the applicant. Dr Synnott initially declined to express an opinion with respect to an association between illness and injury and later expressed the opinion of material contribution. However, when further materials were made available to him, he recorded that he could not be certain that the workplace was as described to him (by the applicant).
235. Ms Slade has been attending the applicant since August 2007 on a monthly basis until December 2008. It is not known whether she has consulted the applicant subsequently. She was aware of the applicant being previously treated by Dr England and was aware also that the applicant's son had been involved in a motor vehicle accident. She had a history of the applicant having an unfortunate experience when previously working in the Wodonga office. She concluded, on the history that she obtained from the applicant that all treatment she had with Dr England had concluded by 2000 and she had not subsequently been prescribed medication.
236. It was remarkable that most of the doctors had a history from the applicant of being treated by Dr England in the late 1999s when in fact he attended her on 10 occasions during 2002. Subsequent to the cessation of his treatment there does not appear to be any presentation by the applicant at the Albury/Wodonga Family Medical Clinic for any work related matter or complaint. This appears to be consistent with the conclusions reached by Dr England and recorded on each of the last four of his consultations that the applicant was (on each occasion) good. However, the applicant was diagnosed with depression by Dr Healey on 25 January 2004 and was prescribed Aropax. Dr Brewer consulted the applicant on 2 April 2005 and recorded the applicant suffered from emotional upset and sig stress problem which, according to her note, seemed to have an association with the subsequent management of her son's treatment and his entitlements under the Transport Accident Commission. She consulted with the applicant again on 1 May 2005, diagnosed depression and noted that Aropax had been prescribed for four years but because of side effects, decided that the applicant should commence treatment with Lexapro. Dr Bruce prescribed Lexapro on 23 July 2005 but ceased prescription of it on 9 August 2006. On 9 February 2007, Dr Bruce recorded that the applicant was unhappy at work and resumed prescribing Lexapro.
237. The notes of the general practitioners do not record any association with the prescription of Aropax or Lexapro after 2002 until 9 February 2007. References to treatment by Dr England in the 1990s and the absence thereafter of medication is incorrect.
238. A number of the doctors in their reports recorded the absence of any significant family history. However, the notes of Dr England during his 10 consultations in 2002 record detailed and intimate accounts of the applicant's recollection of family and interpersonal relationships which need not be recorded here, save that the notes made by him must have been made as a result of the history given by the applicant. I am unable therefore to conclude, having regard to the notes of Dr England, that there was an absence of significant family history, as some of the doctors reported.
239. Of significance also was the applicant's experience in the aftermath of the serious injury suffered by her son in a motor vehicle accident in 1995. Indeed on 24 April 2002, Dr England recorded the applicant having been in Melbourne for about six months following the motor vehicle accident, her son being unconscious for a period of about two months and the poor accommodation that had been made available to her. He reported that those experiences had wore her out – she has never bounced back.
240. Of significance also in my view, is the experience of the applicant of what appears to be a great deal of unpleasantness in the Wodonga office in about 1999. The applicant has referred to that experience in her evidence (refer earlier) and some of the doctors have also referred to the applicant being upset by that experience. Nonetheless, Dr England at his first consultation on 11 February 2002 referred to the applicant having had a disagreement with a new manager after working in Wodonga and recorded that the event (which he has not described) was worst episode by far. He also recorded that the applicant exploded and lost control of temper. Subsequent to that event, the applicant transferred from Wodonga to Albury, an event in the circumstances I do not regard as being insignificant.
241. On 1 July 2002 Dr England referred to the applicant having a sense of being marginalised and attacked following the Wangaratta/Wodonga/Swan Hill fiasco. The fiasco is not explained and it is not clear whether it is a reference to the unpleasant experience endured by the applicant in the Wodonga office in 1999. Nonetheless, it is worthy to note that Dr England has referred to an episode which he has described as a fiasco and which the applicant described her reaction as being marginalised and attacked.
242. Ms Sowden, in a report of 4 June 1999, referred to the applicant having been exposed to significant stressors, one of which included the motor vehicle accident of her son and the inappropriate manner in which Mrs Baker's industrial situation has been handled. No further description or information is given with respect to that matter but I assume that it is a reference to the Wodonga episode in 1999.
243. Ms Slade refers to the applicant having previously been engaged as the relieving manager at the Swan Hill Medicare office with issues subsequently emerging when she returned to Wodonga concerning the processing of radiotherapy accounts and where she was verbally attacked by a relieving manager. Perhaps that is the episode referred to as the fiasco by Dr England. Ms Slade noted that the applicant had been treated by Ms Sowden in about 1999, which was correct. She also noted that the applicant had previously been treated by Dr England which at or about that time was not correct (T29, p147). He did not consult the applicant until three years later.
244. Dr Tapsall made a note on 30 April 1999 of á distressed work and she prescribed Prozac. It was at or about that time, that she referred the applicant to Ms Sowden.
245. In conclusion therefore, I am satisfied that prior to the applicant's experiences in the Albury office as she described in evidence and as she described to her doctors, she did have a history of a number of significant events in her life for which she had been treated by a number of practitioners who had prescribed medication to relieve the symptoms of distress, depression and upset which she had reported from time to time.
246. It would appear that the treating doctors have accepted the applicant's history with respect to prior illnesses, treatment, responses to treatment and the workplace circumstances and events as she alleged and perceived.
247. I regret the treating doctors of the applicant [other than Dr Bruce] were not called. Whilst I do not draw any adverse inference, had they given evidence, a comprehensive and factually correct history of treatment could have been put to them. I would have then been more confident in the weight to be given to their opinions and in any findings on whether there was any connection between the employment and any injury, illness, or disease.
248. Nonetheless, on the basis of the clinical material and the reports, it appears the applicant did have a history of treatment for emotional or psychiatric type illnesses prior to the commencement of the interpersonal difficulties in the Albury Medicare office in 2005. It also appears that the applicant has suffered an adjustment disorder, depression and anxiety. That diagnosis of illness or injury is consistent amongst the doctors.
CONCLUSION
249. As I listened to the evidence of the applicant and other witnesses in this application and on reflection, having read the extensive documentation lodged, it is impossible to conclude that an adjudicative process resulting in an imposed decision will be a satisfactory conclusion to these proceedings. Had there been an appropriate dispute resolution process operating within the Albury Medicare office or available to its staff, it is highly unlikely that the conflict which has given rise to this dispute would have ever escalated to the level that it did. This is an application which involved persons not being acknowledged or heard, their needs not being met or satisfied, reasonable expectations having failed and perceptions being held which were misconceived. It would also appear that the applicant has suffered adjustment disorder, depression and anxiety. That diagnosis of illness or injury is consistent amongst the doctors.
250. The applicant alleged that her manager excluded her from undertaking higher duties. The records held by the employer indicated that higher duties were undertaken by the applicant on 12 days between 1 January 2006 and 22 March 2007.
251. Mr Smith said that the policy of Medicare was to delegate each branch manager with the responsibility of allocating higher duties to suitably qualified and responsible persons, having regard also to the career aspirations of employees. It is also noted from the employment records that the applicant was absent from employment for considerable periods of time in 2006 and accordingly, she would not have been allocated higher duties during those periods.
252. Ms Brady said higher duties were available only when she was either absent on flex leave or when she was sick or on holidays. She said higher duties were made available to four people in the Medicare office in Albury who were suitably qualified one of whom was the applicant. It would appear that higher duties were also made available to a new employee, Karen Jones because of her experience within Medicare (having previously been a manager of a Parramatta office) and her willingness to work Saturdays. If Ms Brady was absent on days immediately before a Saturday she said it was her practice to allocate higher duties to Ms Jones rather than avoid a handover to another employee. That to me suggests a sensible management strategy. The applicant’s unwillingness to work on Saturday mornings would not have assisted the allocation to her of higher duties in the event that Ms Brady was absent on days leading up to a Saturday.
253. The applicant complained to both Mr Smith and Ms Dobinson either about the absence of higher duties being allocated to her, or an inequitable allocation of higher duties amongst suitably qualified staff. Mr Smith and Ms Dobinson raised those concerns with Ms Brady and the employment records were inspected. Those persons, being regional managers at different times, were satisfied that there was no inequality in the allocation of higher duties.
254. An equitable allocation of higher duties does not mean an equal allocation. The applicant was away from the workplace for a large part of 2006 and she generally did not make herself available to work on Saturdays. She cannot reasonably allege exclusion from higher duties when she is not at or willing to work. I am not satisfied the applicant was excluded.
255. Another criticism by the applicant of her manager was the unnecessary monitoring of (her) work. The predominant examples given by the applicant of being over monitored occurred either when she was using a telephone, reading emails, being asked to serve customers and quality control of her work.
256. The applicant said that she was required as part of her work duties to make telephone calls at approximately five per day. Yet Ms Brady would enquire on at least three occasions per day whether those calls were work related. Ms Brady said she was aware that the applicant’s son had previously suffered injuries in a motor vehicle accident. She said there were occasions when telephone calls were made by persons wanting to speak to the applicant concerning her son and on some of those occasions she had answered the telephone in her office. She said that she would notify the applicant and permit her to take the call, that she would leave her office and allow the call to be taken privately. On other occasions where personal calls were made but were not regarded as being urgent, Ms Brady said that she would take a message and pass it on to the applicant or if the applicant was not serving customers and customers were not waiting she would permit her to take the call.
257. In notes appended to her claim form, the applicant (T6, p71) recorded that Ms Brady was often hovering when she was on the phone resolving work issues.
258. I accept the applicant was required to make telephone calls in the course of her daily work and for reasons associated with the work. She said she would make five calls per day. She also said Ms Brady would query three of those calls, per day.
259. Ms Brady said on a number of occasions that the quality of the work completed by the applicant was not queried and was never the subject of complaint. In the absence of complaint about the quality of her work, why would the telephone calls be queried?
260. The applicant also alleged that Ms Brady would hover when she was reading emails containing work related matters. There were occasions alleged by the applicant that Ms Brady would stand near her when emails were opened and she asked her to do that later (read the emails).
261. Another criticism by the applicant of Ms Brady was the scrutiny of the quality of her work. However, Ms Brady explained in evidence that quality control of the work undertaken by staff was computer generated on a random basis. It follows that the applicant’s work may have been the subject of the computer based quality control initiative. Just as likely was the quality control being undertaken of the work of other employees. There is nothing which points to the computer deciding that the applicant’s work be the subject of any enquiry of quality to a degree greater than other employees. Ms Brady acknowledged that she had not ever complained about the quality of the work undertaken by the applicant, or had she ever disciplined the applicant concerning her work.
262. The most predominant complaint of the applicant directed towards Ms Brady was of her being observed by the monitor in Ms Brady’s office.
263. Ms Dobinson said that the security cameras were installed primarily for security reasons and to monitor the customers. Mr Smith said that the camera permitted the manager to observe on the monitor the business of the office and/or to make changes to staffing or seating arrangements within the public area.
264. The applicant and Ms Bailey both said that there were occasions when they were in, or near the manager’s office, when she was observed looking at the monitor and was heard making comments, in a tone of frustration, about delays in processing applications or about the numbers of persons waiting to be served. Ms Bailey also said that there was an occasion where she observed Ms Brady observing the applicant on the monitor and making a comment to the effect why is she doing that.
265. Ms Brady acknowledged that she did observe the monitor from time to time to inform herself whether the Medicare objective of orderly and efficient processing of applications was occurring without undue delay. She did acknowledge that there were occasions when she would ask staff to cease reading emails or refrain from making telephone calls if customers were waiting. She also acknowledged that her performance as a manager was measured by efficiency within the office.
266. On balance, I am satisfied that Ms Brady did monitor the work of the applicant from time to time. I am also satisfied that she monitored the work of every other employee as she was obliged to do as the manager. I am not satisfied that there was any unnecessary monitoring of the applicant’s work. Ms Brady would be expected as the manager to ensure that the performance indicators established by Medicare are either achieved or that every reasonable effort is made to ensure that they are achieved.
267. Ms Bailey acknowledge that Ms Brady was responsible for quality control and the applicant agreed in cross examination that there was nothing unusual about Ms Brady coming onto the floor in the public area, requesting staff give attention to serving customers who were waiting. The applicant described that conduct as excessive. However, as a customer service organisation, such monitoring would be prudent. Indeed, Ms Brady would have a responsibility to ensure that customers are not unnecessarily kept waiting.
268. If customers were waiting to be served whilst an officer is reading an email or having a conversation or making a telephone call, the Medicare service delivery objective would not be achieved. Customers would be waiting unnecessarily and in violation of Medicare's standards. I am not satisfied that there was any excessive – as opposed to routine – monitoring of the applicant’s work and the work of the other officers.
269. In concluding this part, I am satisfied that the monitoring was not unnecessary. I am not satisfied that there was any contribution to the applicant’s injury in a material degree by Ms Brady monitoring the work of the applicant.
270. Another criticism by the applicant of Ms Brady was of isolating (her) from work colleagues.
271. So far as I can determine, those comments are directed towards the training and subsequent work by the applicant of FA applications.
272. The applicant was critical of Ms Brady during the training in Sydney. She specifically alleged that she was excluded from conversations between Ms Brady and Ms Britton. However, Ms Brady said in evidence that she did not socialise with the applicant or Ms Britton in Sydney because she wanted her own space and she decided to return to Albury each weekend during the nine week training period, whereas the applicant and Ms Britton stayed in Sydney. Ms Brady also said, when travelling from Sydney airport to the conference venue she sat in the front seat of the taxi because she was frequently sick as a passenger and she could not engage in a conversation with the applicant or Ms Britton who were in the back of the taxi.
273. Of substance, however, was the persisting complaint of the applicant that she wanted to work in a seat adjacent to Ms Britton, so they could support and mentor each other as FAOs.
274. It appeared that they were seated together when they returned to Albury but later they were separated and were directed to occupy positions at each end of the counter which were designated for processing FA applications. The applicant also raised a concern on a number of occasions that she did not understand whether she was a Medicare officer or a FAO.
275. The work surrounding the FA applications, having heard the evidence of Ms Brady, Ms Dobinson and Mr Smith, seemed to me to have been well established and communicated to the applicant.
276. The extreme ends of the Medicare counter were designated for the processing of FA applications to ensure that claimants were given privacy, having regard to the nature of their enquiries and the numbers of documents they would lodge and which would be scrutinised by the FAO. The quantity of FA work compared to Medicare work was considerably less and only on infrequent occasions would there be more than one FA customer being served. There was no need in my view for both Ms Britton and the applicant to occupy adjacent seats in order to discuss and mentor each other concerning FA applications. It was appropriate in my view that the FAOs occupy each end of the counter because those positions allowed FA customers to be seated during lengthy interviews and gave them privacy.
277. The applicant was at all times a Medicare officer. She was an employee of Medicare. Her primary responsibility was the processing of Medicare applications. She was never a full-time or permanent FAO. Her employment contract was not amended to describe her as a FAO or to indicate she was primarily responsible for FA processing. A roster was devised where she would be the first FAO responsible for processing FA applications for one week and Ms Britton would be the equivalent officer in the following week. They would backup each other in the event of more than one FA customer waiting to be served. FA work was never intended to be given priority over Medicare processing and it is not difficult to comprehend the irritation of Ms Elliott on 22 March 2007 when she observed the applicant filing FA documents when Ms Britton was the FAO that week and when Medicare customers’ were waiting to be served.
278. Mr Smith, Ms Elliott, Ms Brady and Ms Dobinson gave evidence that prior to returning to Albury after the FA training that an us or them mentality amongst Medicare staff was to be dissuaded because all Medicare employees – the applicant and Ms Britton included - had the primary responsibility for undertaking Medicare work.
279. If there was any isolation of the applicant from Ms Britton it would have been for sound management reasons and by a reasonable position held by the employer that colleagues should not have any sense of an us or them attitude.
280. Any perception by the applicant that she was primarily an FAO was erroneous. Having regard to the quantity of FA work, compared to Medicare work, it is difficult to comprehend why she would have had that perception. Her belief that she did not know whether she was a Medicare or an FAO is also difficult to comprehend.
281. I am not satisfied the applicant was isolated from her colleagues. Rather, the intent of the employer to integrate employees with FA skills was a sound management initiative. It demonstrates an objective that all employees should not lose focus from the primary responsibility of processing Medicare applications and enquiries. In those circumstances, there was no contribution to her injury in a material degree by the employer.
282. The other issue of significance to the applicant and as pleaded in her claim form was an aggressive and negative attitude by Ms Brady towards her.
283. The applicant alleged that Ms Brady had been overheard commenting to another officer that her claim for neck pain was pulling the wool over their eyes. She also alleged that Ms Brady later approached her, lifted her handbag and made the comment this is the problem. Ms Brady said that she had not ever spoken to any other Albury officer concerning the neck injury and denied making the comments alleged by the applicant.
284. It was also alleged that Ms Brady was aggressive towards her during a discussion concerning the implementation of altered trading hours in the meeting on 17 June 2005 (refer paragraph 25 earlier). Her memory was refreshed from a diary entry she said that she made on that day. The alleged response by Ms Brady to issues that were raised by the applicant mainly, for God’s sake it’s only 20 minutes – I have other people to consider besides you. Deal with it, were – if made – intemperate but also suggest a degree of exasperation. It is worthy to note that the applicant recorded in her diary that her concerns were mainly the manner in which the HIC are expecting their staff to fill these new trading hours without consultation… I think it is worthy to note that the applicant’s concerns were directed mainly towards the employer and not to Ms Brady, the manager.
285. The applicant alleged that Ms Brady hovered around her when making telephone calls. Ms Brady agreed (paragraph 136) that she became cranky if personal telephone calls were being made when customers were waiting to be served. Having regard to the service obligations of Medicare I see nothing aggressive or negative about the manager becoming cranky if staff are dealing with personal matters at the expense of customers waiting.
286. The applicant recorded in her diary on 26 March 2007 that she rang Ms Brady and notified her she was taking sick leave. She said that Ms Brady replied with the word shit and when she told Ms Brady she was suffering depression the response alleged was so am I. Ms Brady said in evidence that she could not recall that conversation in any detail, she did not remember her response and agreed that if she did say the words so am I, it was probably not compassionate but would have been intended to refer to her own sense of stress about the workplace (refer paragraph 141).
287. The applicant alleged that she was upset by a comment made by Ms Brady when she was reporting on the outcome of the drought bus tour. It was alleged that Ms Brady in the presence of co-workers had said, that the trip was regarded as hot and boring. Apparently the applicant complained to Ms Brady about that comment and Ms Brady did acknowledge the concerns that she had raised (refer T5, p14). In evidence Ms Brady also agreed that the applicant did complain to her that her comments were derogatory. however, she did not intend to make the comments for that purpose and she had apologised to the applicant.
288. The relationship between the applicant and Ms Brady had deteriorated to the extent that on 17 December 2007 the applicant lodged a complaint with Ms Dobinson relying on what she recorded as authority to do so under Clause 17.4 of the Medicare Certified Agreement (ST59, p119). Ms Brady said in evidence she had no knowledge that a complaint had ever been made until it was brought to her notice whilst giving evidence in these proceedings. Ms Dobinson said she referred the complaint to the Human Resources section of Medicare but had heard nothing since. It was assumed in the absence of Ms Brady having any knowledge of it and Ms Dobinson not having any response to it that the complaint was not investigated or if it was, it was not upheld.
289. I think it is worthy to note that many allegations were made by the applicant about the conduct of Ms Brady in 2005 and 2007, many of which were recorded in her diary. Her diary of 2006 was received into evidence. There is not one single entry in it of any concern or complaint against Ms Brady. There was not one word of evidence in these proceedings alleging any concern or complaint about Ms Brady in 2006. The only entry in the clinical notes of the Albury/Wodonga Family Medical Centre in 2006 referrable to work are on 3 September 2006 (a Sunday) and the entry records depression + issues at work +++.
290. It is acknowledged that the applicant was away for considerable periods throughout 2006. Ms Brady also acknowledged that absenteeism from the workplace was a major issue for Medicare and was the subject of discussion at Medicare conferences. Nonetheless, I am at a loss to comprehend why the applicant endured many unpleasant experiences as she alleged with Ms Brady in 2005 and 2007 but none in 2006.
291. Ms Brady was perceived by Ms Elliott as an efficient, assertive and disciplined manager. Mr Smith said that he had never received any complaint from any other employee about Ms Brady’s management of the Albury office.
292. In conclusion, I am not satisfied that Ms Brady did adopt an aggressive or negative attitude towards the applicant. There may have been occasions where she was intemperate or frustrated either with the applicant or with other matters within the Albury office but I am not satisfied that the injury suffered by the applicant was contributed to in a material degree or at all by the manager.
293. The remaining contribution to her ailment was an allegation by the applicant of bullying and harassment by Ms Brady.
294. I assume, without specific examples being given, that this allegation is more ambit in nature, intended to either capture the overall conduct and behaviour of Ms Brady. Alternatively, it is intended to be an expression of Ms Brady's behaviour as the applicant perceived it or reacted to it.
295. I am not satisfied the allegation has been established. I think Ms Brady was an efficient manager. She was responsible for the Albury office and staff. She was also accountable to the HIC. There would have been occasions when she was stressed or irritated but no one who was familiar with Ms Brady – including the applicant's witnesses – alleged bullying or harassment – either by those words or by conduct which would fit that description.
296. It follows that there was no material contribution to the injury, or at all, by Ms Brady allegedly bullying of harassing the applicant.
297. There remains another issue which largely emerged during the hearing, namely, whether the applicant failed to obtain a transfer, benefit or promotion. If she did, it would be exempt from the definition of injury in s 4.
298. This issue emerged when, having been unsuccessful in the return to work initiative at Wangaratta, the applicant learnt there were persons working in the Wodonga Medicare office who were residents of Wangaratta. It seemed to the applicant that being transferred to Wodonga was sensible because it would improve her health and allow separation from the Albury office. Equally sensible would be to have the Wangaratta officers work in the town where they reside. (I would have thought there was much to commend these arrangements).
299. Nonetheless, despite being aware of the applicant's wish to be transferred (ST4, p12; ST9, p19; and ST13, p28), the employer did not allow the applicant to be transferred.
300. If there was any contribution to the applicant's injury by the failure or refusal to be transferred, it is to be excluded by s 4 and there was no injury, as defined.
301. Having regard to s 4 and s14 of the SRC Act recorded in paragraph 7 earlier, and by reason of the evidence heard in these proceedings, I am satisfied as follows:
(i)The definitions of injury and disease embrace the conditions of adjustment disorder, mixed anxiety and depression suffered by the applicant (Comcare v Canute (2005) 148 FCR 232 at [84]).
(ii)The primary concept in the definition of disease is ailment, meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). The adjustment order, mixed anxiety and depression suffered by the applicant meets the definitional description of ailment and is an injury within the disease category (Canute v Comcare (2006) 226 CLR 535 at [9]).
(iii)Compensation is payable for injury (Canute (2006) at [10] and s 14 of the SRC Act).
(iv)Whether a person suffered an injury as defined is a question of fact. I am satisfied the applicant did suffer the injuries recorded earlier.
(v)The employment must contribute in a material degree to the disease. (s 4(1) of the SRC Act).
(vi)For the reasons given earlier, I am not satisfied that events alleged by the applicant (T6, p22) did occur.
(vii)It follows, I am not satisfied that there was any contribution to the injury by the employment.
(viii)The applicant was no doubt disappointed by the employer failing or refusing to transfer her to the Wodonga office. If the injury in whole or part resulted from that failure or refusal, it would be excluded as an injury as defined. There was no evidence of any legally or administratively enforceable right or entitlement to such a transfer (refer Trewin v Comcare (1998) 156 ALR 615 at 620‑621).
302. In all of the circumstances, the decision under review will be affirmed.
I certify that the three hundred and two [302] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Signed: Olympia Sarrinikolaou
Legal Assistant
Dates of Hearing 31 August 2009, 1-4 September 2009
Dates of Final Submissions Applicant – 11 November 2009
Respondent – 15 December 2009
Date of Decision 18 May 2010
Counsel for the Applicant Mr P. Clarke
Solicitor for the Applicant Ms L. Block, Harris Lieberman Solicitors
Counsel for the Respondent Mr J. Wallace
Solicitor for the Respondent Mr R. Ternes, Sparke Helmore Lawyers
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