Gilmour and Comcare (Compensation)
[2016] AATA 54
•3 February 2016
Gilmour and Comcare (Compensation) [2016] AATA 54 (3 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/1251
Re
Leanne Gilmour
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 3 February 2016 Place Sydney The Tribunal affirms the decision under review.
................................[sgd]........................................
Ms N Isenberg, Senior Member
CATCHWORDS
WORKER’S COMPENSATION – adjustment reaction with depressive reaction – whether injury the result of reasonable administrative action – performance appraisal – performance appraisal rating – higher duties – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 7, 14
CASES
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Commonwealth of Australia and Comcare and Anor [2013] AATA 503
Hart v Comcare [2005] FCAFC 16Martin v Comcare [2015] FCAFC 169
REASONS FOR DECISION
Ms N Isenberg, Senior Member
3 February 2016
DECISION UNDER REVIEW
The Applicant, Leanne Gilmour, claims that she suffers an adjustment reaction with depressive reaction as a result of incidents that occurred during her employment with Australian Customs and Border Protection Service (‘Customs’). In the reviewable decision the review officer affirmed a determination dated 22 September 2014 which disallowed a claim for compensation under s.14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) in respect of the claimed condition.
While the delegate was satisfied that the Applicant had sustained a psychological injury which was significantly contributed to by her employment, the delegate considered that the circumstances of the Applicant’s claim fell within the exclusionary provisions of the SRC Act, namely that the injury was as a result of reasonable administrative action taken in a reasonable manner. The decision under review is the reviewable decision dated 16 January 2015.
BACKGROUND
The Applicant commenced employment with Customs in 1986. She attained promotions and since about 2002, has held the classification of CL3 and performed the role of CL3 Senior Intelligence Analyst.
According to her position statement the role of Senior Analyst requires, among other attributes, ‘flexibility to respond to operational needs, including short or long term out-posting’. The Applicant had been out-posted for periods up 3 years at any one time to, for example, the National Organised Crime Taskforce, the Australian Crime Commission and the Australian Federal Police.
In about December 2012 she returned to her role of Senior Analyst within the Intelligence Support to Operations Branch (ISOp), Intelligence & Targeting Division of Customs.
By email dated 1 February 2013 the Applicant expressed interest in acting in the role of Liaison Officer (‘LO’) or acting as a Manager within Intelligence and Targeting. For two weeks in February-March 2013 the Applicant acted in the Manager out-posted analyst position and for two weeks in May 2013 the Applicant relieved on an out-posting with the AFP.
In May/June 2013 the Applicant participated in an end of cycle performance review (‘performance appraisal’). She objected to being rated as having ‘met agreed requirements’ and claimed that she should have been given a rating of ‘performed above agreed requirements’. This performance appraisal is discussed below.
Between mid-June 2013 and mid-November 2013 the Applicant was out-posted to the AFP, and then from mid-November 2013 was out-posted again.
In February 2014, at the Applicant’s request, she was released from her out-posting and returned to the Analyst Pool prior to the commencement of some short leave in mid-March 2014. By email dated 28 February 2014, the Applicant was informed that another employee would take over her out-posted role; and she facilitated a handover. On her return from leave she returned to her role as Senior Analyst within the Analyst Pool.
By email dated 4 March 2014 expressions of interest were sought from CL3 level employees in performing higher duties in the position of Manager ISOp (Joint Operations) during the period from March 2014 to early 2015. The Applicant expressed interest but was not selected for the role in the first instance. This is also discussed in detail below.
By email dated 24 March 2014, the Applicant was provided with the proposed narrative for her mid-year performance appraisal. The Applicant considered the narrative to be ‘quite basic’ and lacking relevant details. The Applicant stated that she ‘was now beginning to doubt [her own] ability and work performance’. The Applicant provided her supervisor, Ms Hall with additional supporting material. On about 28 March 2014 the Applicant participated in a mid-year performance appraisal discussion and was ‘shocked’ by the feedback she received during this discussion. The points raised by the Applicant were taken into account and the Applicant was provided with a revised narrative.
During a meeting with the Director on 3 April 2014 the Applicant expressed her belief that she had ‘been unfairly treated within Intelligence in relation to the distribution of higher duties (and Liaison Officer) positions’. The Applicant expressed dissatisfaction with the way in which the acting role of Manager ISOp (Joint Ops) was allocated, and her belief that she had been denied opportunities to participate in acting manager roles (and overlooked for a position as a Liaison Officer), resulting in a loss of potential earnings. The Applicant stated that following this meeting she felt ‘deflated’.
In April 2014 the Applicant took about a week’s leave. She was due to return to work on 28 April 2014, but, she said, ‘was instead in tears and did not want to return as [she] felt that [she] was being unfairly treated and was not being heard, nor that [her] issues were valid’.
The Applicant consulted her general practitioner, Dr Oliver Smith on 29 April 2014. Dr Smith recorded the reason for the consultation as ‘stress’ and she was certified unfit for work from 28 April 2014 to 5 May 2014.
In mid-May 2014 the Applicant took 3 days sick leave. She twice consulted Dr Smith and discussed her stress at work. Dr Smith referred her to a psychologist. The Applicant was certified unfit for work for more than a week. On 29 May 2014 the Applicant consulted psychologist, Susan Li who recorded the Applicant as presenting ‘with stress and anxiety relating to work stressors’. She continued to consult Dr Smith in relation to her work-related stress.
RELEVANT LEGISLATION
Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In subsection 5A(1) injury is defined to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 7(4) of the SRC Act deems the date of injury to be when the employee first sought medical treatment, or the condition first resulted in incapacity for work or impairment of the employee.
ISSUES
There was no dispute that the Applicant suffers from ‘an adjustment disorder with anxious and depressed mood’ and that this ailment is in the nature of a disease that was contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth.
In order to determine if Comcare is liable to pay compensation in accordance with s.14 of the SRC Act, the Tribunal must decide whether Ms Gilmour suffered an “injury” as defined in the Act. In considering this issue it is necessary, having regard to the exclusionary provisions in s.5A of the SRC Act, for the Tribunal to determine whether the Applicant’s condition was a result of reasonable administrative action taken in a reasonable manner in respect of her employment.
As the Applicant first sought medical treatment for her condition on 29 April 2014, the deemed date of when the condition first resulted in incapacity for work injury is 28 April 2014: s.7(4) SRC Act.
At the outset of the hearing I sought to clarify with the Applicant, who was unrepresented, what aspects of her work with Customs she said contributed to, to a significant degree to her adjustment disorder with anxious and depressed mood. The Applicant referred to a number of incidents. However, as the hearing evolved over 4 days, the Applicant crystallised her complaints to issues surrounding her 2012/2013 performance appraisal and her failure to obtain higher duties.
EVIDENCE
The Applicant made a number of statements and gave extensive evidence at the hearing. Evidence was also given by:
·Debra Hall, the Applicant’s supervisor
·Anne Alexander, the Applicant’s supervisor
·Matthew O’Connor, the Director Operational Intelligence
·David Andrew, Assistant Director Operational Intelligence
·Dr Anne-Marie Rees, consultant psychiatrist who had examined the Applicant at the Respondent’s request.
CONSIDERATION
In her evidence Dr Rees said that the Applicant had told her she was upset about receiving a ‘basic’ performance appraisal in 2013 and her perception that she was “not appreciated in the workplace”. The Applicant also gave a history about her failure to obtain higher duties but, according to Dr Rees, did not provide a lot of detail. Dr Rees diagnosed the Applicant as suffering an adjustment disorder with anxious and depressed mood which related to a perception that she has been bullied in the workplace by her director and manager.
The Respondent contended that the Applicant’s condition was suffered as a result of one or more reasonable administrative actions taken in a reasonable manner in respect of her employment. Because the Applicant had narrowed her contentions, only those matters are addressed.
Considering the application of exclusion provisions in a similar form to s 5A of the SRC Act which applies to the present matter, Branson, Conti & Allsop JJ stated in Hart v Comcare [2005] FCAFC 16 at [22]:
In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry.
Simply put, the exclusion in s 5A applies even though an applicant’s condition may have had other causes.
In Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 Rares and Tracey JJ discussed the operation of s.5A:
... the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment …
Performance Appraisal conducted in May/June 2013
Ms Li observed that the Applicant had first consulted her in May 2014 and took a history that the Applicant’s anxiety was first caused when she had been asked to “prove herself”. From the context of the remark, I took this to relate to the Applicant’s 2013 performance appraisal.
The Applicant had participated in performance appraisals for the 27 years she worked in Customs. There are differing financial implications depending on the outcome of a performance review.
She was unclear about precisely when, in 2013, she had learned that her annual performance appraisal was to take place, but agreed in cross-examination that she had the opportunity to, and did, prepare for it.
The Applicant’s recollection was that at about 3.00pm on 31 May 2013, she met with Ms Hall and Ms Alexander, for her end of (financial) year performance appraisal. Ms Hall had been her manager during her out-posting during the review period and Ms Alexander had been her manager since about January 2013. In cross-examination the Applicant agreed that both Ms Hall and Ms Alexander had been her managers during the preceding 12 months, but was surprised that Ms Hall was present as she expected only Ms Alexander, her then current supervisor, to conduct the performance review. She agreed that because Ms Hall was present she had the opportunity to ask her to vouch for aspects of her work, but denied this was advantageous to her; she said that in fact she found it more daunting, because having more than one person present does not usually occur.
She said she told Ms Hall and Ms Alexander that she had had worked extremely hard and believed she had performed above the agreed requirements during the performance appraisal period. She cited various achievements of an operational nature. She agreed in cross-examination that she had had the opportunity to put her case.
Ms Hall agreed she told the Applicant that everything she had done during the period under review was '[her] job', although Ms Hall did not recall the use of those exact words. She proposed a rating of 'Met Agreed Requirements' (‘MAR’). In cross-examination Ms Alexander agreed that in the short time she had supervised the Applicant she found her performance in the analyst pool to be ‘excellent’. She said that, for her part, she had taken into account everything the Applicant had said or written in support of her claim but had still thought more was required for a 'Performed Above the Agreed Requirements' (‘PAAR’) rating.
The Applicant claimed that during the conversation Ms Hall informed her that she had had no problem getting PAAR approved for some of her other out-posted analysts, but details could not be discussed. Ms Hall did not deny she had said that but noted that there was no limit to the number of people who could be put forward for PAAR. Ms Alexander could not recall that discussion.
The Applicant was in tears during the discussion. When it was clear that she disagreed with the performance rating, Ms Hall told her she would discuss it further with Mr O’Connor, the Director Operational Intelligence, and would get back to her shortly. The Applicant claimed at that stage she should have been afforded the opportunity to discuss her concerns directly with Mr O’Connor. She claimed there was a denial of “natural justice or procedural fairness” as he was the second line manager and the ultimate decision-maker. She noted that the previous year she had gone to her then Director seeking intervention, and assumed it would happen again.
At about 4.00pm the same day, the Applicant said she again met with Ms Hall and Ms Alexander, although Ms Alexander did not recall a second meeting that day. (Ms Hall had thought that the whole discussion had occurred on 5 June 2013 – see below). Ms Hall told the Applicant that she had spoken with the Mr O’Connor who had advised that the performance agreement had to be finalised that afternoon. The Applicant was again advised that she would be given a performance rating of MAR, and not PAAR, to which she believed she was entitled.
Ms Hall told her that she would soon be performing the role of out-posted analyst at the AFP and that if she sorted out processes at the AFP that were causing a high and unrealistic workload for the out-posted analyst, then that would be the 'type of task' that would deserve a rating of PAAR.
The Applicant contended that she found Ms Hall’s behaviour in to be offensive, belittling, and undermined her confidence and self-esteem. As a result, it caused her discomfort and made her feel upset, unimportant and unworthy of serious consideration. She also felt that it was disrespectful in that Ms Hall had no regard for her feelings. She did not believe Ms Hall's action was reasonable or constructive, nor was she was treated with respect and courtesy.
The Applicant further contended that when Ms Hall told her that she had spoken with Mr O’Connor and he advised that the matter had to be finalised that afternoon and that the Applicant would be given a performance rating of MAR, she found Mr O'Connor's behaviour to be “offensive, belittling, hostile, threatening, intimidating, abrasive and coercive”. As a result, it caused her “great discomfort” and made her feel “distressed, upset, vulnerable, anxious and victimised”. She also felt like she was “under duress, unimportant and unworthy of his serious consideration in this matter and that he disliked [her]”. Similarly, she felt that it was “disrespectful” as Mr O’Connor had “no regard for her feelings and rights”. As such, she did not believe Mr O’Connor's action was reasonable or constructive, nor did it involve circumstances of fairness or meet the rules of natural justice.
The Applicant said she knew she had a right of appeal but claimed not to know what that process was. She said that she had considered lodging an appeal against the performance assessment but, given it was late in the day and she had been told the performance agreement had to be finalised that day, she agreed to the rating of MAR; she did not realise she could accept the assessment and appeal later. Ultimately, the performance appraisal was not finalised that day. She told Ms Hall and Ms Alexander that she would agree to the rating but said she had felt coerced into agreeing.
She said that she had verbally agreed on 31 May 2013 to click the 'agree' button when the online performance appraisal was provided. Ms Alexander had added comments into the online appraisal document, which the Applicant received on 5 June 2013. She saw that the points which she had raised to support her claims for a PAAR rating were cited as examples to support a performance rating of MAR. Her evidence was that there was no option but to click the “I agree’ button. She conceded in cross-examination though that there was an opportunity to click “I’d like to discuss further’ but did not do so. In one of her statements she wrote that she had decided to accept the MAR performance rating and click the 'agree' button, hoping that the situation would improve and she would be treated fairly and reasonably in the future. She wrote that she also feared possible reprisal from the work area if she did not agree to the performance or if she were to lodge a performance appeal and therefore did not provide additional information to substantiate her claims for a PAAR performance rating, as she had previously advised. She said in cross-examination though that between 31 May 2013 and 5 June 2013 she had ‘let it go’ and had not gone to see Mr O’Connor about the appraisal, as she had proposed.
The Applicant sent Ms Alexander an email on 5 June 2013 in which she addressed the performance criteria for PAAR. She wrote that while she agreed with the comments made in relation to her performance she believed they substantiated the rating of PAAR. She referred to having sustained a high level of work performance, and noted that she was widely recognised for her contribution to the work area/organisation. She wrote that she had consistently had a major positive impact on the work area/organisational outcomes and was a positive role model for others. She said she would provide further details but could not do so until the following week due to operational needs.
Both Ms Hall and Ms Alexander sought Mr O’Connor’s views when the performance review team informed Ms Alexander that the Applicant was challenging the performance rating. There was an email chain where Ms Hall sought Mr O’Connor’s views about a PAAR, given that the previous year the Director had supported the Applicant’s claim for PAAR despite Ms Hall’s reservations.
Mr O'Connor wrote to Ms Hall and Ms Alexander on 5 June 2013:
As discussed (with Anne), I think you should meet again with Leanne this afternoon to discuss her claims and performance over the last year. You should then assess the rating and endeavour to discuss your assessment with Leanne. I will be guided and comfortable with your assessment of Leanne's performance (MAR or PAAR).
Ms Hall said she outlined to the Applicant why she believed she was not entitled to a PAAR rating and that the examples of tasks the Applicant relied on in support of her claim were those expected of a senior analyst.
The Applicant complained that neither Ms Hall nor Mr O’Connor had ‘visibility’ of her performance during her out-posting. The performance appraisal document however refers to the Applicant having received excellent feedback from the Team Leader of [her out-posted position]. The Applicant produced an email from Detective Superintendent Benjamin McQuillan of the AFP, which she had forwarded to Ms Hall. SUPT McQuillan wrote positively about the Applicant’s performance between June and November 2013, while out-posted. It is clear from the appraisal document that these were taken into account. Ms Hall agreed the comments were good but the Applicant’s performance still did not meet PAAR.
The Applicant squarely raised her performance appraisal as one of the causes of her condition. She complained of aspects of the conduct of the appraisal and, importantly, it was clear, was disgruntled by her performance rating. It is clear that conducting a performance appraisal and providing a performance rating is a reasonable administrative action.
After her long career in the public sector the Applicant was familiar with the process. She was given notice of the appraisal appointment which allowed her time to prepare. The interview was conducted by her immediate past supervisor and her then current supervisor, and they had the benefit of input from the Applicant’s manager from her out-posting. The Applicant had the opportunity to articulate her claim. When she complained about the proposed rating Ms Hall took her complaint to Mr O’Connor, who took the reasonable course of leaving the decision to her line managers. On the Applicant’s own evidence she chose not to approach Mr O’Connor herself. She was well aware that it was open to her to make representations if she disagreed with the proposed rating; she had in fact successfully invoked that course in the previous year.
In my view there was no evidence that the Applicant had been bullied into accepting the MAR rating. Neither, do I find anything in Ms Hall’s conduct to be “offensive, belittling, hostile, threatening, intimidating, abrasive and coercive” as the Applicant claimed. Similarly, while the Applicant may have felt that Mr O’Connor had been “disrespectful” and had “no regard for her feelings and rights”, this contention, in my view, is without foundation.
Alleged failure to follow the PA Guidelines
The Applicant also contended that the performance appraisal was not a reasonable administrative action, taken in a reasonable manner in relation to her employment because it was not conducted in accordance with the Instructions and Guidelines for Performance and Feedback (‘the PA Guidelines’).
The relevant PA Guidelines are dated March 2009. The Applicant referred, for example, to the reference in the PA Guidelines to the effect that where a staff member changes position (or reporting line) for greater than 3 months the supervisor must complete an interim assessment, usually within 6 weeks (of completion). Ms Hall could not recall if such an interim assessment took place.
In Commonwealth of Australia and Comcare and Anor [2013] AATA 503 at [31]) (‘re Haseler’), Deputy President Hack SC, in referring to the Australian Public Service Code of Conduct, observed that a policy of that kind should be treated as a guide of general application but one that, where necessary, yielded to particular circumstances; it does not have legislative force. This also applies, in my view, to the PA Guidelines.
Ms Hall referred to the PA Guidelines with respect to deciding on an appropriate rating recommendation:
When deciding on this ranking the following definitions apply:
Consistency
In achieving their Primary Responsibilities the staff member has met expectations as described in the measure at this level.
Sometimes
While fulfilling their Primary Responsibilities the staff member has not always achieved the measure at this level as described, but has done so more often than not.
Rarely
Primary Responsibilities have not been achieved and/or expectations as described in the measure have not been met.
It is important to keep in mind that it is the quality of performance that is being assessed. In some instances opportunities to demonstrate particular measures may be rare of infrequent. If a staff member achieves their Primary Responsibilities and their performance meets the requirements outlined in the performance measure, a ‘consistently’ rating would apply, even if performance against a particular measure has only been required once or twice in the assessment period.
4.2 Deciding on an Appropriate Rating Recommendation
As stated above, prior to End-Cycle feedback discussions with staff, supervisions must meet with their managers to discuss work group outputs/outcomes and expected performance ratings.
When deciding the final recommended rating supervisors need to take into account:
·The staff member’s overall performance throughout the cycle,
·Indicative Mid-Cycle or Interim ratings,
·Demonstration of skills and competence, and
·Individual contribution to team performance and the outputs of the work area.
Examples of performance should be included to support the rating recommendation.
Ms Hall said these provisions were to be read conjunctively, that is, all needed to be satisfied. While she agreed some aspects of the Applicant’s performance were noteworthy, she did not, in her view, meet all criteria over the whole period. She conceded that the Applicant was at the high end of the criteria for MAR.
The PA Guidelines permit an employee to lodge a written appeal within two weeks of finalisation of the rating if they disagree with the performance rating. The Applicant did not lodge an appeal in respect of the performance rating. She cannot now complain, that in that regard, there has been no compliance with the PA Guidelines.
Conclusion as to the performance appraisal conducted in May/June 2013
I find that the appraisal of the Applicant’s performance was a reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
Failure to obtain higher duties
By email dated 4 March 2014 Mr O’Connor informed staff within Intelligence and Targeting of internal personnel moves and invited CL3 level employees to notify him of their interest in performing higher duties backfilling the position of Manager ISOp (Joint Operations) (‘the acting Joint Ops role’) during the period from March 2014 to early 2015. The email clearly indicated that the ‘development opportunity’ to perform the acting Joint Ops role was to be offered to a number of CL3 level employees.
Almost immediately the Applicant responded to Mr O’Connor by email, informing him just of her interest in the opportunity to act in the role. She understood Mr O’Connor to be aware of her experience; she was also busy on operational matters to submit more details as to her claim to the position.
Mr O’Connor’s evidence was that, with the managers, he spent a considerable amount of time trying to accommodate all the people who wanted the development opportunity. That consideration included when people were taking leave and whether their jobs could be backfilled. Ms Hall’s evidence was that Mr O’Connor and the managers discussed who had applied, their various business skills and attributes, and the operational needs, and a pool was established of suitable candidates, but there was no ‘order of merit’.
By email dated 7 March 2014, three days after the call for expressions of interest, Mr O’Connor advised staff that Amelia Weedon had been chosen to undertake the acting Joint Ops role for the following few months. The email said nothing about beyond that time.
The Applicant contended that once the decision had been made as to the first staff member to fill the role, it was appropriate to tell the other candidates at the same time, what had been decided about the balance of the period of the vacancy.
Mr O’Connor said that after the initial assignment was allocated there were discussions with the Applicant and other successful applicants that they were going to get an opportunity to act in the role further down the track. In cross-examination he said that no decision had been made at that time about the next person to undertake the assignment after Ms Weedon but the intention was to give everybody ‘who had put their hand up’ an opportunity to act.
From 10 March 2014 to 14 March 2014 inclusive, the Applicant took annual leave prior to her scheduled return to the Analyst Pool. On 19 March 2014 the Applicant told Mr Andrew, the Assistant Director Operational Intelligence, that she ‘was not happy with the way higher duties had been allocated and reminded him of [her] previous requests to undertake a Liaison Officer role within the area’. She said she told Mr Andrew that it was not personal at all, but she did not believe it was fair that Ms Weeden had been placed in the acting Joint Ops role, as she had never been out-posted and had remained in the Analyst Pool where she had received the majority of higher duties opportunities.
She said Mr Andrew told her they were originally going to put another person into the acting Joint Ops role first, but they did not think it would be fair given that the person was taking annual leave during this time.
After further discussion, Mr Andrew’s final comment to her was 'but you're good'. He then advised that he would speak with the Mr O’Connor and discuss her concerns.
The next day, when he did not get back to her despite walking past her desk several times, she asked Mr Andrew if he had spoken to Mr O’Connor. She found Mr Andrew's behaviour to be offensive, belittling, abrasive and undermined her confidence and self-esteem. As a result, it caused her discomfort and made her feel ignored, dismissed, upset and vulnerable. Similarly, she felt that it was disrespectful as Mr Andrew had no regard for her feelings or best interest. As such, she did not believe Mr Andrew's action was reasonable or constructive, nor was she was treated with respect and courtesy.
Also, when she expressed her concerns to Mr Andrew he told her: "Don't worry, you'll get a turn", but did not provide any further information. Further, on 21 March 2014 the Applicant advised Mr Andrew that she was frustrated with the allocation of higher duties and the LO positions. She told him she intended to speak with the Mr O’Connor. She asked Mr Andrew if he wanted to come with her to speak with Mr O’Connor, but he replied that he did not need to be there.
Mr Andrew asked her to email her previous expression of interest (‘EOI’) to him. As a result, she came to the view that Mr O’Connor had not really been aware that she had expressed an interest in the acting Joint Ops role and that she had not even considered for the acting Joint Ops role.
The Applicant appears to have met with Mr O’Connor on 3 April 2014, who wrote.
On 3 April 2014 Ms Gilmour met with me to discuss career development opportunities. Ms Gilmour indicated that she did not feel appreciated within the work area, felt she had been unfairly treated in relation to the distribution of higher duties and deployment to Liaison Officer positions, thought other CL3s were being given opportunities that she should have, wanted the opportunity to be the next CL3 to act in the Manager role and wanted to do a Liaison Officer role.
Mr O’Connor’s evidence was that in the conversation he told her they were working through the timing for the next placements and that she was ‘on the list’. At that time it had not been worked out who was to be next. The Applicant denied that Mr O’Connor told her she would get an opportunity to act. There was some variation in the Applicant’s accounts of the conversation but there was no dispute that she told Mr O’Connor that she wanted to be next. Mr O’Connor agreed that he told her he would consult with his managers and get back to her within the month, which he did.
The Applicant was offered the higher duties, initially for 2 months from late September 2014 but was brought forward to two months from early August 2014 due to operational needs.
The Applicant said she found Mr O’Connor's behaviour in relation to the higher duties process to be offensive, unjust, belittling, based on favouritism and undermined her confidence, self-esteem, work effort, ability, experience and achievements. As a result, it caused her great discomfort and made her feel distressed, upset, vulnerable, targeted and victimised. She also felt like she was unimportant and unworthy of his serious consideration. Similarly, she felt that it was disrespectful as Mr O’Connor had no regard for her feelings, needs, wishes or best interest. As such, she did not believe Mr O’Connor's action was reasonable or constructive, nor was she treated with respect and courtesy.
It was clear from the outset that the ‘development opportunity’ to perform the acting Joint Ops role was to be shared. The Applicant was keen to be considered and promptly put her name forward. After consultation with the managers Mr O’Connor selected a person to start. The Applicant sought to draw some adverse inference from the fact that the decision was reached speedily, but this was probably, in fact, good management practice.
I agree that once the decision had been made as to the first staff member to fill the role, it was probably appropriate to tell the other candidates what had been decided about the balance of the period of the vacancy, although this did occur shortly afterwards.
The Applicant complained to Mr Andrew about the way the higher duties had been allocated; she regarded it as ‘unfair’. In fact, the procedure adopted by Mr O’Connor and the management team of sharing the higher duties appeared to have been eminently fair, given that there were a number of candidates who were identified as benefiting from the opportunity. Despite stating that there was ‘nothing personal’ she was critical of Ms Weedon’s ability. It was clear that she was annoyed that she was not the first recipient and, in particular, was resentful of Ms Weedon.
In my view there was no evidence that the Applicant had been overlooked for the acting Joint Ops role; a period in the position was offered to her in accordance with the plan to offer the development opportunity to all suitable contenders. Neither, do I find anything in Mr Andrew or Mr O’Connor’s conduct to be “offensive, belittling, abrasive” as the Applicant claimed. Similarly, while the Applicant may have felt that her confidence was undermined, there was no evidence, it seemed to me that proper processes had not been followed. Those feelings, in my view, were more likely to relate to her failure to secure the higher duties first. Further, I reject any contention that Mr O’Connor was obliged to have regard to her ‘feelings, needs, wishes or best interest’ in reaching an operational decision about filling a position. Her contention, in my view, is without foundation.
Alleged failure to follow the Higher Duties Guidelines
The Applicant claimed that the appointment to the acting Joint Ops role was not conducted in accordance with the Instructions and Guidelines - Higher Duties (‘Higher Duties Guidelines’) and therefore was not a reasonable administrative action, taken in a reasonable manner in relation to her employment.
The relevant Higher Duties Guidelines provide:
3. Options for Filling the Vacancy
Once it has been established that a temporary vacancy exists and the intention is to fill it by providing an assignment at a higher classification, the relevant work area needs to undertake a process to select an appropriate individual for the role.
It is common for an expression of interest (EOI) process to be utilised when selecting an appropriate employee for higher duties. However, a delegate may decide to implement a rotational arrangement for the duration of the vacancy. In such circumstances a number of suitable employees may be given a development opportunity for a specified period. The method of selection used may vary depending on the relevant timeframes involved.
It is important to ensure that the implementation of higher duties arrangements is transparent and procedurally fair.
4. Higher duties assignment – less than six months
An expression of interest process is not necessary for periods of higher duties less than six months.
A supervisor may rely on their knowledge and understanding of their employees’ work-related skills and abilities when identifying the most appropriate person to undertake higher duties.
They should discuss the reason/s for their decision with those employees in the work area that have expressed an interest in the assignment or who would normally expect to be considered for the assignment.
Where practicable, consideration should be given to potential development opportunities for all suitable employees.
However, if the intention is to offer the higher duties to an officer outside of the work area – then an EOI should be used as there may be other officers interested. Employees within the work area should be notified of the impending vacancy and the reasons for filling it. See below for steps in an EOI process.
5. Higher duties assignment – more than six months but less than 12 months
For higher duties of six months or more, an expression of interest process should be used.
6. Expression of Interest Process
An expression of interest could include a brief statement of work related qualities against selection criteria, or a brief work history, including relevant raining and qualifications and referee details.
Mr O’Connor explained in his evidence that “assignments” referred to the period of time a person was to act in the higher duties, not the anticipated duration of the whole vacancy. The length of each “assignment” dictates the process to be followed in filling the vacancy. In cross-examination he clarified that even if there were a vacancy for, say 3 years, it could be filled by several ‘assignments’ of 5 months each, without advertisement. For higher duties of more than 6 months an EOI process should be used.
The Applicant complained that an EOI process should have been used for the filling of a higher duties assignment of more than six months but less than 12 months, and the decision to implement a rotational arrangement was not fair or transparent and the principles of equity and merit were not applied. Further, the Applicant said she did not have the opportunity to state her claims for the position.
However, as set out above in section 3, that option for assignment leaves open the method of selection. Therefore, even according to the Higher Duties Guidelines, there was no necessity to engage in the selection process undertaken for the purpose of filling the higher duties role.
The Applicant also pointed to section 4 of the Higher Duties Guidelines. However, as discussed above, for assignments of less than 6 months, no EOI process is required.
The Applicant further complained that once the EOI process was adopted the following steps which are set out in the Higher Duties Guidelines should have been followed:
Step 1 – Notify the vacancy
Call for expressions of interest from interested employees. This may be limited to the relevant work group, section, or may be advertised within the region or nationally, depending on the nature and/or length of the vacancy. When advertising the vacancy to a limited group ensure that the limitation is made clear in the advertisement. Expressions of Interest must be notified through e-Recruit.
Step 2 – Assess the work related qualities of applicants
Undertake a comparative assessment of the pool of applicants based on the work-related qualities demonstrated and those required for the position. This may be a simple exercise involving examining the expressions of interest received, having discussions with the applicant’s supervisor or gathering referee comments. However it could also involve a more formal process, which may include an interview. Again, the nature and/or length of the vacancy may determine whether this is necessary.
Step 3 – Document the decision
If interviews are held, the selection process should be progressed in the same manner as above base selection processes (Refer to the Above Base Recruitment and Selection Instruction and Guideline).
If a less formal process is conducted and interviews are not held i.e. applicants assessed on applications and referee reports only, the outcome must be documented and should include a brief statement justifying the reasons for the decision.
Once agreed by the Delegate, the documentation should be forwarded to Recruitment for finalisation of the process in e-Recruit.
Step 4 – Communicate the decision
The Selection panel should advise all applicants, either verbally or in writing, of the outcome and the rationale for the decision.
Feedback should be provided upon request.
As a result, she claimed the administrative action in relation to the higher duties was not taken in a reasonable manner, as it was not pursuant to the Higher Duties Guidelines. I reject the Applicant’s contention. The selection process, as I have discussed above, was conducted in accordance with the Higher Duties Guidelines in respect of assignments for less than 6 months.
Even if that were not the case, as I observed above in relation to PA Guidelines, the Higher Duties Guidelines are, in my view, just that – guidelines; strict compliance with them is not mandatory. In Comcare v Martinez (No 2) [2013] FCA 439 Robertson J stated, relevantly at [81]:
This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.
Conclusion in relation to failure to obtain higher duties
The Applicant squarely raised her failure to obtain first higher duties in the acting Joint Ops role as one of the causes of her condition. She complained of aspects of the conduct of the selection process. It is clear that a selection process to backfill a vacancy is a reasonable administrative action.
In the majority judgment in Martin v Comcare [2015] FCAFC 169 Murphy J (with whom Siopis J agreed), said:
The exclusion in s 5A plainly operates to exclude compensation where the cause of an employee’s psychological injury is disappointment, distress or resentment regarding a decision to refuse promotion. … The question whether injury is suffered as a result of a failure to be promoted is one of causation, to be determined on the facts of each case.
The Applicant’s evidence was clear: she was disgruntled at not receiving the higher duties first.
I accept that the decision by Customs as to whether and when to appoint the Applicant to the acting Joint Ops role was a reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
CONCLUSION
Most recently the effect of the exclusion provisions of s.5A of the SRC Act were discussed in Martin where Murphy J in the majority judgment:
However many separate causes of an injury may have arisen out of or in the course of an employee’s employment, if any one of those causes falls within the exclusion the employee is wholly disentitled to compensation in respect of that injury.
I have found that the two matters upon which the Applicant relied as contributing, to a significant degree, to her adjustment disorder with anxious and depressed mood were each a reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment. Accordingly, her condition is excluded from the definition of “injury” in s 5A of the SRC Act. Consequently, Comcare is not liable to pay compensation in accordance with s.14 of the SRC Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ...............................[sgd].........................................
Associate
Dated 3 February 2016
Date(s) of hearing 21 - 22 September 2015, 25 - 26 November 2015 Applicant In person Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Lehmann Snell Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Procedural Fairness
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Statutory Construction
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Appeal
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