Griffiths and Telstra Corporation Limited
[2010] AATA 952
•29 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 952
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1503
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID GRIFFITHS Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Honourable Dr B H McPherson CBE Deputy President and
Mr R G Kenny, Senior MemberDate29 November 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]..................
Deputy President
CATCHWORDS
WORKERS’ COMPENSATION – Claim for psychiatric injury – No diagnosis prior to commencement of amendments to Safety, Rehabilitation and Compensation Act 1988 (the Act) – No liability under amended provisions of the Act – Subsequent onset of depressive disorder- Condition attributable to employment – However, condition resulted from reasonable administrative action taken in a reasonable manner – No injury under s 5A of the Act - Respondent is not liable to pay compensation to the applicant for incapacity or impairment – Decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14
Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation and Amendment Bill, iii
Comcare v Chenhall (1992) 37 FCR 75
Comcare v Mooi (1996) 69 FCR 439
Georges and Telstra Corporation Ltd [2009] AATA 731.
Gilbert and Comcare [2009] AATA 224
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Henderson and Comcare Australia [2010] AATA 700
Karalenko and Comcare [2010] AATA 49
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42
Repatriation Commission v Webb (1987) 13 ALD 421
Radulovic and Comcare [2010] AATA 777
Wilson and Comcare [2010] AATA 396REASONS FOR DECISION
29 November 2010 Honourable Dr B H McPherson CBE Deputy President and Mr R G Kenny, Senior Member BACKGROUND
1. On 10 October 2008, David Griffiths lodged a claim, under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), for rehabilitation and compensation in respect of “an emotional disorder – adjustment disorder” which he alleged was related to workplace stress he experienced from 2006 while he was employed by the Telstra Corporation Limited (“Telstra”). On 9 December 2008, Allianz Australia Insurance Limited, acting for and on behalf of Telstra, rejected his claim. That determination was affirmed in a reviewable decision on 16 February 2009.
SUBMISSIONS
2. Mr Chris Murdoch, counsel for the applicant, submitted that Mr Griffiths’ psychiatric condition is an injury which resulted from workplace stress experienced by him from 15 March 2006 until 18 June 2008. He contended that he suffered a panic attack in March 2006 and developed an adjustment disorder at that time, before the commencement of the 2007 amendments to the Act. He also contended that this developed into major depression in 2007 and early 2008 as a result of repeated and ongoing workplace stressors culminating in his cessation of work in June 2008 and for which liability is to be determined for an injury which occurred after the 2007 amendments to the Act.
3. For diagnosis and causation, Mr Murdoch referred to the evidence of psychiatrist, Dr Jennifer Lockwood, who saw Mr Griffiths on 14 November 2008, of Mr Griffiths’ treating psychiatrist, Dr M Walters, and also of his general practitioners, Dr Robert Rimmer, who saw him at various times including February 2007, and Dr Martin Bull, who has seen him since that time. The workplace stressors identified by Mr Murdoch were: intimidation and harassment by a manager, Bryan Johnson, in relation to Mr Johnson’s directions to him about the pay claims of members of Mr Griffiths’ team; the failure of Mr Griffiths’ “one-up”[1] manager, Greg Hart, to respond appropriately to Mr Griffiths’ complaint about the behaviour of Mr Johnson; the behaviour of Darryl Clarke and Steven King, who were members of Mr Griffiths’ team; Telstra’s subjection of Mr Griffiths to a Performance Improvement Conduct Management (PICM) process on 15 March 2007; Mr Griffiths’ mistreatment by Michael Steele, who replaced Mr Hart as his one-up manager in 2007, who was involved in an investigation into alleged payment irregularities in Mr Griffiths’ team as well as a further PICM process scheduled to be conducted with Mr Griffiths in June 2008. Mr Murdoch also submitted that contribution came from the conduct of Mr Steele in relation to his withdrawal of travel benefits from Mr Griffiths and arrangements concerning his return to work program in 2008.
[1] This is a reference to a person’s immediate superior in the Telstra’s management hierarchy.
4. Mr Charles Clark, for Telstra, submitted that the presence of a psychiatric condition outside the boundaries of normal mental functioning and behaviour was not established on the evidence. In particular, he submitted that there was no evidence that Mr Griffiths suffered a panic attack in March 2006. Mr Clark conceded that psychiatrist, Dr Martin Bull, diagnosed a psychiatric condition in March 2008. However, he submitted that this was contributed to by reasonable administrative action taken by Telstra in a reasonable manner and that, therefore, could not be relied upon to establish liability under the Act[2] for any psychiatric condition which may have been present after 13 April 2007.
[2] Relying on Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29.
ISSUES AND LEGISLATION
5. The issue for the Tribunal is whether Telstra is liable, under s 14 of the Act, to provide rehabilitation and to pay compensation to Mr Griffiths for an injury or disease which has resulted in incapacity for work or in impairment[3]. Amendments to the Act in 2007[4] commenced operation on 13 April 2007. It will be seen below that we have determined that the onset of Mr Griffiths’ psychiatric condition was after the commencement of the 2007 amendments. Accordingly, the amended provisions of the Act are relevant in this matter. For liability for an injury arising on or after 13 April 2007, the relevant provisions of the Act read[5]:
[3] See s 14(1) of the Act.
[4] See Act No 54 of 2007.
[5] See also s 4(1) of the Act which refers to s 5A and s 5B of the Act for injury and disease, respectively.
5A Definition of injury
(1) In this Act:
injury means:
(a) …
(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) …
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
MEDICAL EVIDENCE
Dr Robert Rimmer
6. Mr Griffiths consulted his then treating medical practitioner, Dr Rimmer, on 20 February 2007. Dr Rimmer observed a flushed look and a fever and noted that Mr Griffiths’ symptoms were diarrhoea, abdominal discomfort, nausea and tiredness. He noted that he had experienced pressure at work. He prescribed medication for diarrhoea and to settle Mr Griffiths’ stomach. Dr Rimmer said that, apart from that, he had no other advice or recommendations as to what Mr Griffiths should do. He completed a medical certificate in which he noted that Mr Griffiths was suffering from an abdominal upset and was unfit for work from 19 to 20 February 2007. He agreed that, if Mr Griffiths had described a panic attack to him, he would have included that in his clinical notes.
Dr Martin Bull
7. Dr Bull was Mr Griffiths’ general practitioner in 2007 and 2008. He completed certificates dated 12 March 2008, 11 April 2008, 30 May 2008 and 19 June 2008 excusing Mr Griffiths from work for the periods 12 March to 12 April 2008, 11 April to 11 May 2008, 30 May to 13 June 2008 and 19 June to 19 July 2008, respectively. Those certificates did not identify the reason for Mr Griffiths’ unfitness for work. Dr Bull’s clinical notes were in evidence. They are identified as a “complete record” and show consultations with Mr Griffiths on 3 July 2007, 12 March 2008 and 11 April 2008. On 3 July 2007, Mr Griffiths was treated for a bleeding papilloma on his stomach and a crusting on his right knee and left wrist. Mr Griffiths wrote in his affidavit, on 21 April 2010, that he was having “frequent panic” attacks from 8 June 2007 and was “physically incapable of attending work” at that time. He agreed that, when he saw Dr Bull a few weeks later on 3 July 2007, he made no reference to panic attacks, stress or sleep problems but complained of knee, wrist and ear problems as well as a papilloma on his stomach.
8. On 12 March 2008, Dr Bull noted increasing anxiety and depressed affect since problems at work, that Mr Griffiths had been demoted and that he was required “to look at other people’s claims ? wrong doings”. Dr Bull diagnosed anxiety and depression with panic attack. On 11 April 2008, Dr Bull described Mr Griffiths as being “slightly lifted in last week” but as remaining “angry about witch hunt to oust him by Telstra even tho initial investigation completely clean”.
Dr M Walters
9. Dr Walters was Mr Griffiths’ treating psychiatrist in 2008 and he completed certificates on 2 July 2008 for major emotional disorder, on 18 July 2008 for major medical problem-emotional disorder, on 22 August 2008 for major depressive disorder, on 26 September 2008 for emotional disorder-adjustment disorder related to workplace stress and on 10 November 2008 for major depressive disorder. These declared Mr Griffiths to be unfit for work until 2 August 2008, 2 September 2008, 3 October 2008, 26 November 2008 and 10 February 2009, respectively.
Dr Jennifer Lockwood
10. On 16 November 2008, psychiatrist Dr Lockwood completed a report which was requested by the respondent. Dr Lockwood, who gave evidence, said that her report and her opinions were reliant on information provided to her by Mr Griffiths in an interview with him on 14 November 2008.
11. Dr Lockwood noted that Mr Griffiths had been treated by Dr Walters from April 2008 and that he had found this helpful. She reported a history of workplace difficulties from 2005, an awareness by him in March 2006 that some of his team were claiming overtime payments for work not done and a difficult interaction with Mr Johnson in which Mr Griffiths was told to approve the payments to his team members, Clarke and King. Mr Griffiths asked his one up manager, Mr Hart[6], to intervene and he believed that Mr Hart was doing so. Later, he learned that Mr Hart had not raised the matter with Mr Johnson. Dr Lockwood wrote that, a few months later, Mr Johnson angrily spoke to Mr Griffiths, telling him to make the payments to his team. Mr Griffiths became aware that Clarke and King had made a complaint about him and he came to realise that they had engaged in bullying behaviour against other members of his crew including his step-son, Trevor March. He prepared a letter of complaint against Clarke and King which was signed by members of his team. This led to an investigation in September 2006 which ultimately led to the dismissal of Clarke and King for fraud. Dr Lockwood wrote that Clarke and King then made further complaints, some of which were dealt with in a PICM investigation into Mr Griffiths which commenced in early 2007. She reported that, during that process, Mr Griffiths had his travel, travel allowance and overtime documentation extensively reviewed and his team was subjected to a drug raid by the respondent. She noted that Mr Griffiths advised that he had been cleared in those investigations but that, subsequently, he was again investigated for fraud in 2008 and had been demoted to the position of leading operative.
[6] Mr Hart was Mr Griffiths’ one up manager from February 2006 until June 2007 except for the period from August 2006 until December 2006 when Mr Scammells acted in that role.
12. Dr Lockwood wrote that Mr Griffiths began to develop symptoms in March 2006 after being confronted by Mr Johnson. He experienced a panic attack. Throughout 2006, he felt he was handling the stress reasonably but became increasingly pre-occupied with work problems. Mr Griffiths agreed that he worked throughout 2006 without sick leave. He felt no change himself but said that his family, including his partner Ann Cross and step-son Mr March, became aware of his changed mood. He felt his symptoms deteriorate throughout 2007 with frustration, crankiness, irritability, short temper, poor short-term memory, poor concentration, loss of enjoyment of life, loss of interest in hobbies and avoidance of people. He saw a counsellor on two or three occasions in 2007 but found this unhelpful. Dr Lockwood wrote that he advised of sleep loss, lowered libido, and poor appetite. She noted thoughts of suicide. Dr Lockwood wrote that Mr Griffiths is angered now by the sight of Telstra vehicles and has had three intense major panic attacks over the previous few years. He identified the triggers for these as including being confronted by Mr Johnson and having to take part in an EEO[7] and bullying[8] investigation against Mr March.
[7] Equal Employment Opportunity.
[8] The EEO and bullying process was concerned with harassment, inappropriate behaviour and bullying.
13. In her summary of what she was told by Mr Griffiths, Dr Lockwood wrote that Mr Griffiths began to experience symptoms at the end of 2005 and early 2006, with subjective stress in 2007; an increase during the investigation of the bullying complaint and the dismissal of Clarke and King; and an increase in symptoms through 2007 and early 2008 to the point where he had to leave work in March 2008.
14. Dr Lockwood wrote that Mr Griffiths developed adjustment disorder with anxiety and depressed mood with a worsening of symptoms over time to a major depressive episode. This was partially treated. Dr Lockwood considered that this was in response to workplace stressors over the past two and a half years. She noted that he was being treated by a specialist psychiatrist.
15. In her evidence, Dr Lockwood confirmed the current diagnosis of major depressive episode which had developed from an adjustment disorder. She referred to Mr Griffiths’ panic attack in March 2006 after the confrontation with Mr Johnson and said that the adjustment disorder came on in 2006 and probably into 2007. Dr Lockwood considered that his condition worsened in early to mid 2007 so that, between then and when she saw him in 2008, it had developed into a major depression. Dr Lockwood identified the factors which contributed to the development of the condition as the two investigations (i.e. the 2007 PICM and the proposed 2008 PICM), the behaviour of Mr Johnson, the lack of support from Mr Hart, a drug search of his team’s vehicles and his demotion to the position of leading operative.
Psychology reports
16. Mr Griffiths’ evidence was that Dr Rimmer told him he was suffering from stress related to his work. He sent an email to Mr Hart on 22 February 2007 indicating that Dr Rimmer had recommended counselling. In an email reply on the same date, Mr Hart approved his contact with Telstra’s Employee Assistance Program (EAP). This resulted in attendances with a psychologist from Davidson Trahaire Corpsych on 27 February 2007 and 8 March 2007. In a report from that organisation, dated 27 February 2007, a history of workplace issues relating to fraud, abuse and victimisation is outlined and reference is made to “stress” and “anxiety attack”. On 8 March 2007, Mr Griffiths is described as “feeling better”, with “reduced anxiety”, “all good” and “managing well”. In his evidence, Mr Griffiths agreed with that report and conceded that he had gained some benefit from the counselling. In subsequent reports, dated 15 April 2008 and 18 April 2008, a history of Mr Griffiths’ dealings at work is listed and a recommendation for stress management is given.
Diagnosis
17. Dr Lockwood considered that Mr Griffiths’ adjustment disorder came on in 2006 and probably into 2007. For that conclusion, she was reliant on the account given by Mr Griffiths and this included his reference to having had a panic attack in March 2006 after the episode with Mr Johnson. However, there is no material which supports his assertion that he suffered from any psychiatric condition at the time of seeing or before he saw Dr Rimmer in February 2007. The symptoms described by Dr Rimmer were diarrhoea, abdominal discomfort, nausea and tiredness. He noted pressure at work but the medication he prescribed was for diarrhoea and to settle Mr Griffiths’ stomach. That is consistent with the medical certificate he completed in relation to an abdominal upset. Significantly, Dr Rimmer said that, if Mr Griffiths had described a panic attack to him, he would have included that in his clinical notes. Similarly, Dr Bull made no reference to any psychiatric problems when he saw Mr Griffiths in July 2007.
18. The reports of the psychologist in February and March 2007 refer to stress and anxiety attack and a history that Dr Rimmer referred Mr Griffiths for counselling. That is not supported by the evidence of Dr Rimmer who said that, apart from a prescription for Mr Griffiths’ stomach problem, he had given no other advice or recommendations as to what Mr Griffiths should do. We are satisfied that it is only after Mr Griffiths saw Dr Rimmer and Dr Bull that his symptoms amounted to a diagnosable psychiatric condition. Dr Lockwood identified deterioration in Mr Griffiths’ symptoms throughout 2007 with a worsening in early to mid 2008. Prior to that, his family noted changes in him but there is no medical evidence, independent of Mr Griffiths’ own accounts, of symptoms outside the boundaries of normal mental functioning and behaviour which would indicate the presence of a psychiatric condition[9]. In his evidence, Mr Griffiths agreed that his main problems were recognised in 2008 and he said he had not recognised that he had a problem in 2006 or 2007. Accordingly, we are satisfied that Mr Griffiths developed a psychiatric condition of adjustment disorder in mid to late 2007 which, by mid 2008, had further developed into a major depressive episode. The presence of a depressive state in 2008 is consistent with the diagnoses made by Dr Walters and the need for absences from work in 2008, as certified by Dr Bull.
[9] See Comcare v Mooi (1996) 69 FCR 439 at 444.
19. In determining whether there is a relationship with Mr Griffiths’ employment, we are satisfied that the matter falls for consideration under the provisions of the Act in their amended form after 13 April 2007. The respondent will be liable under s 14 of the Act if Mr Griffiths’ depressive disorder arose out of or in the course of his employment provided it was not suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.
EVIDENCE
Events prior to Mr Griffiths’ PICM in March 2007
20. Mr Griffiths’ evidence was that, in February 2006, he became the manager of three teams including a site inspection team (the team) which was responsible for Telstra equipment in remote parts of Queensland. Mr Griffiths developed the belief that excessive overtime claims were being made by Clarke and King who were leaders in the team. After he rejected some of their overtime payments, Mr Griffiths was approached, on 15 March 2006, by Bryan Johnson, a senior manager who told him that he should not reject their overtime claims. Mr Griffiths was angered by Mr Johnson’s comments and went to report these to his own one up manager, Greg Hart. Mr Hart was not there and Mr Griffiths remained upset by what had occurred and had trouble sleeping that night. He subsequently considered that he had had a panic attack. Next day, he advised Mr Hart of Mr Johnson’s comments and asked him to intervene by speaking to Mr Johnson. He also told him that he had not slept and did not feel well. He said that Mr Hart advised him that he would do so. Subsequently, Mr Griffiths learned that Mr Hart did not deal with Mr Johnson. Mr Griffiths denied that he had told Mr Hart not to do so. In his evidence, Mr Hart agreed that the purport of Mr Griffiths’ concern was that he “was being leaned on by Mr Johnson” and that Mr Johnson’s conduct was a serious matter, potentially one of misconduct. He believed that not all matters should go to a formal process straight away and that Mr Griffiths was sufficiently senior to deal with it himself.
21. In July 2006, Mr Griffiths became aware of other incorrect overtime claims made by Clarke and King. On 28 July 2006, Mr Johnson again told Mr Griffiths to pay them, stating that he should “let them have their cream”. Mr Griffiths’ evidence was that he referred this to Mr Hart who told him to approve the overpayment and to keep him advised of what happened.
22. Mr Griffiths’ concerns continued when he was advised by various team members of bullying and victimisation by Clarke and King towards them as well as a confrontation during which Mr March used offensive words to Clarke. Mr Griffiths prepared a document on the team’s behalf detailing their complaints. Copies, dated 23 August 2006, were signed by team members, including Mr March, and were provided to Jeff Scammells, who was Mr Hart’s superior and was standing in for Mr Hart at that time. Copies were also provided to Colin Clark who, until September 2007, was Telstra’s Senior Human Resources Advisor who provided advice on the procedure for dealing with complaints relating to inappropriate conduct and discrimination, harassment, victimisation or bullying. Where an employee raised an issue in respect of conduct, his/her manager would engage the Human Resource services and would proceed to the implementation of a PICM process. In other cases, the manager would seek assistance from an EEO contact officer and proceed to investigate the matter. Colin Clark said that Mr Griffiths had attended a course in these procedures and was aware of them.
23. Mr Scammells and Colin Clark told Mr Griffiths to deal with it but Mr Griffiths said that he did not agree to do so, telling them he had a conflict of interests because of the earlier involvement of Mr Johnson and because Mr March was his step-son. On 7 September 2006, Mr Griffiths also lodged a formal complaint with Telstra in relation to its bullying policy about Clarke and King, on behalf of the inspection team members, and also about Mr Johnson, on his own behalf.
24. On 28 August 2006, Mr March was subjected to a PICM process because of his offensive language to Clarke. Colin Clark had been involved in that PICM process and said that a written warning had been issued to Mr March on 21 September 2006 as a result. Colin Clark’s evidence was that the range of potential outcomes from a PICM process was, in order of severity, from a verbal warning, to a written warning, to a final written warning and then to dismissal.
25. In his evidence, Colin Clark said that he first became aware of the issue between Mr Griffiths and Mr Johnson in a meeting with Mr Scammells and Mr Griffiths on 8 September 2006. The meeting was for the purpose of discussing the written complaints made by Mr Griffiths and members of the site inspection team. Mr Griffiths had stated that Clarke and King were obtaining support from Mr Johnson concerning certain overtime claims. He described Mr Johnson as demanding, on two occasions, that he pay the claims of Clarke and King. Colin Clark said that Mr Griffiths did not make any EEO or bullying complaint at that meeting. Mr Johnson again spoke to Mr Griffiths on 23 October 2006 advising him that there would be a big gap if Clarke and King were dismissed. Mr Griffiths advised Mr Scammells of this conversation on the same day.
26. Mr Scammells and Colin Clark directed Mr Griffiths to work at Telstra’s Makerston Street premises to investigate phone records and motor vehicle usage data for the purpose of detecting breaches of conduct by employees in his team. This revealed large scale fraud by Clarke and King as a result of which their Telstra employment was terminated on 10 November 2006. Mr Griffiths felt relieved after this until he learned that Clarke and King were making whistleblower complaints about him.
27. Colin Clark said that, on 7 December 2006, he attended a PICM process involving Mr Johnson which was conducted in relation to his alleged interference with the management of Mr Griffiths’ team. Colin Clark said it was determined that Mr Johnson had behaved inappropriately in directing Mr Griffiths to make payments to Clarke and King. He described Mr Johnson as being very upset and remorseful when advised as he had had no idea of the extent of Clarke’s and King’s fraud. He said that he had notified Mr Griffiths of that meeting and told him that if there was any further interference he should advise him immediately. Colin Clark said that Mr Griffiths undertook to do so and also that interference had not happened since. He did not advise Mr Griffiths of the outcome of the PICM process because it was confidential. Subsequently, Mr Griffiths learned that Mr Johnson had received a verbal warning and this upset him because Mr March had received a written warning.
28. Mr Griffiths described a second panic attack on 19 February 2007 which he believed was due to Telstra’s management staff not telling him what was being done about the whistleblower complaints of Clarke and King. Next day, he saw Dr Rimmer and told him about the workplace situation. Mr Griffiths said that Dr Rimmer told him he was suffering from stress related to his work. Mr Griffiths told Mr Hart about this and Mr Hart approved appointments with a psychologist[10] on 27 February 2007 and 8 March 2007.
[10] See para 17 (above).
29. Colin Clark said he had a second meeting with Mr Griffiths in March 2007 as part of the PICM process where Mr Griffiths repeated his concerns about Mr Johnson. Colin Clark said that Mr Griffiths advised that he had raised the issue of Mr Johnson’s conduct with Mr Hart at the time but had advised Mr Hart that he did not want him to intervene at that stage.
Drug search
30. On 12 March 2007, the team was subjected to a drug search of their vehicles at the Boondall depot as they prepared to leave for their work. It was instituted by Colin Clark. Mr Griffiths understood this to be the first ever such search and believed it to be a result of the whistleblower complaints by Clarke and King. No drugs were found in the search. Later that day, Mr Griffiths met with Mr Scammells and Colin Clark claiming that he and his team were being subjected to unjust treatment. He also asserted that the complaints by his team members about bullying by Clarke and King had not been properly investigated. They told him that Clarke and King had been sacked but Mr Griffiths believed that this should have been communicated to his team in a closure meeting with them. Mr Griffiths also complained about lack of follow-up on his complaint about Mr Johnson.
PICM process in 2007
31. Mr Griffiths was subjected to a PICM process with Mr Scammells and Colin Clark on 15 March 2007. There, Mr Griffiths was asked a series of questions concerning his understanding of various Telstra policies and procedures. Allegations were made against him which he had not heard before. Mr Scammells and Colin Clark said that he had failed to conduct an investigation into Clarke and King as they had directed him to do but, rather, had completed complaint forms for the signature of the team members which he then presented to management. Mr Griffiths agreed that Mr Scammells and Colin Clark had referred to his conducting of an investigation but he said that he had not agreed to do so because his step-son was in the team and he had made complaints about Mr Johnson.
32. Other allegations made at the PICM were: that Mr Griffiths had permitted team members to continue duty even though he was aware the relevant training was out of date; that he had told a team member to falsify a report about an incident involving safety equipment for climbing constructions; that he had been aware that his team members would not pass an alcohol/drug test while on duty; and that he had been involved in the email circulation of pornographic material within the team. There were also two whistleblower complaints: that he had approved overtime and travel payments contrary to the “give and take” concept for some of the team members; and that he had breached health and safety policies in not enforcing testing and tagging procedures for electrical equipment. Mr Griffiths denied all of these allegations.
33. In relation to travel, it was also alleged that he had approved inaccurate travel claim allowance (TCA) for site inspection team members, in particular, for Mr March, when he had returned from the field to his home area for medical treatment. Mr Griffiths’ response was that he had not knowingly approved the claims and that, in relation to Mr March, the payment had been made because of an error by the Telstra pay office.
34. Colin Clark said that the approach adopted by Mr Griffiths of gaining signatures of his site inspection team to standard form letters of complaint was not in accordance with Telstra procedures. Mr Hart’s evidence was that the legal office advised him it was close to abuse of process as it looked like entrapment in that it was building a case against Clarke and King. The letters also failed to disclose any specific behaviour. Colin Clark said that it was agreed that each member of the team would be spoken to in order to see if there was any specific allegation. He said that this was when Mr Griffiths raised the issue of Mr Johnson and did so as a “by the way” reference. He said that Mr Griffiths had done nothing about it except to tell Mr Hart and that Mr Griffiths had not described it as bullying but rather as interference.
35. On 30 March 2007, Mr Griffiths, Mr Scammells and Colin Clark took part in a PICM outcomes meeting. Mr Scammells advised that Mr Griffiths had breached the Telstra EEO and bullying policy by completing the complaint forms for his team members because he had failed to seek guidance once he had received the verbal complaints from the team. He said that Mr Griffiths should have conducted a PICM on the issue of victimisation by Clarke and King. Mr Scammells advised that incorrect payments had been revealed but he agreed that the problem was not solely with Mr Griffiths as a team manager. In relation to the lapsed training of some team members, Mr Scammells advised that some of these pre-dated Mr Griffiths’ involvement with the team and said that there would be a general forum on the matter in which Mr Griffiths should take part. For those matters, account was taken of issues such as Mr Griffiths’ work record, the short period he had had with the team and his raising of concerns with Mr Hart. As a result, no disciplinary action was taken against him. Instead, an action plan was to be put in place to assist him in the future.
36. In his evidence, Colin Clark said that, at the PICM outcomes meeting, he again told Mr Griffiths that the outcome of the investigation into Mr Johnson was confidential. He said that Mr Griffiths did not advise of any health concerns at that time.
37. Mr Scammells advised there was no evidence to support the allegations concerning wrongful testing and tagging of equipment, climbing of Telstra constructions or the broadcasting of pornographic material. Mr Scammells concluded by praising Mr Griffiths for the actions he had taken in highlighting problems and bringing them into the open. Colin Clark also commended Mr Griffiths on the courage he displayed raising the matters against Clarke and King.
38. On 30 March 2007, Mr Griffiths also met with Mark Pettiford, General Manager of Telstra in Queensland. Mr Pettiford was very praiseworthy of Mr Griffiths’ conduct in bringing the allegations against Clarke and King. He recognised that it cost Mr Griffiths in that he had to go through the PICM process. He referred to a couple of mistakes that Mr Griffiths had made but confirmed that he had been fully cleared of misconduct. He described the whistleblower complaints as ones which had to be fully pursued. He said that the process could have been more circumspect given that the complainants were Clarke and King and that he had asked Cathy Callaghan, who oversaw the whistleblower complaint process, to get more fairness into it. Mr Pettiford agreed that the actions of Mr Johnson were wrong. He said that Mr Johnson had been interviewed but had given the appropriate answers to matters put to him although he had denied telling Mr Griffiths to pay Clarke and King. Mr Pettiford said that Mr Johnson had taken a fairly strong message out of it. Mr Pettiford said that the drug search of Mr Griffiths’ team had to be made because of an allegation that had been made about drug use by the team.
Action plan
39. The action plan was provided to Mr Griffiths by Mr Hart on 11 July 2007. It detailed performance actions as follows:
Area of performance Issue Actions Due date How Measured Status EEO and Bullying Processes Improved understanding of Team Manager EEO & Bullying responsibilities With the assistance of the regional HRA, participate in the delivery of a detailed briefing session on Telstra’s EEO and bullying policy 1/7/07 Briefing undertaken Done Overtime Approval and Payment Processes Current OT approval process does not allow for the responsible approval of OT David seeks approval for all overtime within his group and self at present via email prior to working. David is to keep in better contact with remote staff ensuring that location matches work. This approval will revert back to TMs as at 1/7 with all staff O/T approvals at TM level. Approval as per regional O/T policy using the online management system set up for the Qld region. All O/T will be approved prior to working and spot checks are to be undertaken. David will also get out into the field as often as practical to view first hand how the O/T is being utilised in comparison to the regional business plan and expectations. 1/8/07 Email, more regular contact and time sheets and review of the O/T data base Ongoing TCA Approval and Payment Processes Current TCA approval process does not allow for the responsible approval of TCA David approves all TCA on line for all staff with notification given prior to approval. David is to keep in better contact with remote staff ensuring that location matches work. David seeks prior approval for his own travel and prior to submitting online. For the teams that travel for 3 consecutive weeks, David will maintain regular contact with the staff at the start of week 3 and ensure that all staff have a good understanding of their travel and work arrangements and attending to all hygiene requirements. For staff that travel ad hoc like the emergency maintenance, David will review travel arrangements prior to departure once the fault notification is received from the GOC dispatch centre. He will receive an email from the staff that identifies location of the fault, duration of travel expected, who is travelling to the fault, and the dates away. He is to match this data with the Part A submitted by the staff and ensure that the form accurately reflects what happened. In all cases, David will periodically review the GPS vehicle tracking system for spot checking of locations when he has suspicions that something is not correct. 1/8/07 More regular contact with Team and PDM evidenced.
Done Duties of Care with respect to ensuring all staff have satisfied mandatory training requirements Current process does not provide effective visibility for Team Managers to discharge their duty of care in this important area · Assist W&S DCM to roll out revised process to ensure mandatory H&S training is current for all staff.
· David has the least amount of outstanding training with my group. He has no mandatory personal mandatory training outstanding.
· Climbing training has been addressed with my entire group with better tracking and management by the DCM. Avoids potential misses. Entire area will be clear by end of financial year.
30/6/07 Outstanding training report Done. EOY for David’s group good. 40. The covering note to the action plan reads:
David this Action Plan has been prepared to ensure we cover the issues that have been raised throughout the course of the investigations into issues raised within your team over the past 12 months. We will agree the actions required to address these issues together and I will meet with you on a fortnightly basis to support your progress.
41. On 11 July 2007, Mr Griffiths wrote to Mr Hart expressing concern that the action plan suggested that he had been deficient in various ways. He met with Mr Hart on 16 July 2007 to discuss it. Mr Hart described it as a formal meeting but one which was dealt with on a “workmate to workmate” basis. Mr Griffiths was resentful that he was under continuous scrutiny through the action plan. Mr Hart advised Mr Griffiths that he should think about what he was doing in the context of his future with Telstra and that he hoped that he would sign the action plan and get on with his life. He assured Mr Griffiths that the action plan was not a disciplinary measure but a plan to bring about improvements in procedures. He said that the PICM process had not found fault with Mr Griffiths but revealed a few things that could be tightened up. Mr Griffiths refused to sign the action plan and said that this was because it contained allegations against him that he did not accept and that it was unfair because he had uncovered the overtime payment problem and yet he was the one being disciplined.
42. In his evidence, Mr Hart agreed that not all team managers received an action plan. He said that there had been an investigation only into Mr Griffiths and that the action plan was specific to him.
Excess travel time (ETT) and Telstra vehicle use
43. On 3 October 2007, Mr Griffiths met with Mr Steele about payments of ETT and use of Telstra vehicles. This was shortly after conducting a presentation to all team managers, including Mr Griffiths, in which a power point presentation was given setting out various Telstra policies including that relating to ETT and vehicle use. Mr Steele said that ETT was not payable for travel to a usual work station but, rather, to a place where a person works on a temporary basis. Mr Griffiths said that he had been receiving ETT because he had initially been employed at the Southport Telstra depot and that this had been agreed to by Mr Hart for some two years. Mr Griffiths maintained that he was based at Southport and that the ETT should continue because of his need to travel to Brisbane. In his evidence, Mr Hart agreed that he discussed the issue of ETT with Mr Griffiths’ in February 2007. Mr Griffiths was receiving it at that time and he approved it on the basis and it would be looked at later. He approved ETT but only until June 2007.
44. Mr Steele made it clear to Mr Griffiths that he was based in Brisbane and that he was not eligible for ETT because he chose to live at Southport. Mr Steele advised that he would not authorise ETT to Mr Griffiths. Mr Griffiths said that the approach adopted by Mr Steele in the meeting amounted to bullying. Despite that, he agreed that Mr Steele had the right to reach his conclusion and that he and Mr Steele had a different point of view although he believed that Mr Steele had made up his mind before the meeting. He agreed that he was based in Brisbane but said that he always started work early without claiming payment for the additional time and believed that this traded off the ETT. He agreed that he was given plenty of opportunity to explain his position.
45. Mr Griffiths had also been allocated a Telstra vehicle for travelling to and from work. Mr Hart said that he had approved Mr Griffiths’ use of the community use vehicle. In evidence was a document detailing Telstra’s policy for operational vehicle use which included a reference to commuter use vehicles as used by Mr Griffiths. Mr Griffiths said that he was covered by this and also by the NDCG Travel Policy, a copy of which was in evidence. He said that he was embraced by this policy because he lived outside of the metropolitan area. Mr Griffiths agreed that he had not referred Mr Steele to these documents in their meeting. However, Mr Steele said that Mr Griffiths did not satisfy the requirements for allocation of a Telstra vehicle as he started each day working at Makerston Street.
46. Mr Steele’s evidence was that his actions implemented Telstra policy and that it was part of his job to do that. He was referred to the Telstra policy documents on “Operational Vehicles” and “Travel Policy”. He said that these documents had not been referred to by Mr Griffiths in the interview and that there was nothing in them which entitled Mr Griffiths to ETT or a vehicle when he was not field-based.
Appointment of Mr Griffiths as leading operative
47. In December 2007, Mr Griffiths, supported by Leanne James, conducted a PICM interview with Brett Stephens, a member of the team. Mr Stephens advised that members of the team were inappropriately claiming “on call” allowances. Ms James relayed that information to Mr Steele. Before Mr Griffiths went on leave at the end of 2007, Mr Steele advised him that he was considering the incorporation of his team into another team because of the diminished workload facing teams generally. He had become aware that not all of Mr Griffiths’ team were fully occupied during times of low fault conditions. This had led to claims for “on call” allowances to cover availability after hours when, often, team members were not called for work. An option was to merge teams and allocate ordinary work to team members and for them to defer this when an alarm went off for urgent work. Mr Steel discussed this with Mr Griffiths and also the prospect of his becoming a leading operative in the new structure. Mr Steele asked Mr Griffiths to think about those changes over the Christmas period.
48. Mr Griffiths returned from leave on 29 January 2008. He said that, next day, he was advised by Mr Steele that his team had been dissolved and he was appointed as a leading operative. He described the new arrangement as a demotion from the position of team manager. In the new position, he had no responsibility for staff and reported to a team manager. It was his opinion that changes were not necessary as there were other options that could have been pursued by Mr Steele. Despite that, in his evidence, Mr Griffiths said that he was relieved not to be a team manager. He said that the new position also enabled him to travel away from Brisbane and he was happy about that.
49. Mr Steele said that Mr Griffiths had sought a transfer to New South Wales in August 2007. In evidence was an email request from Mr Griffiths, dated 2 August 2007, in which the request was made. As a preamble, Mr Griffiths noted that his responsibilities as the team manager of three teams had a “strong chance of diminishing sharply in the near future”.
50. Mr Steele’s evidence was that, when Mr Griffiths returned from leave in January 2008, he again discussed the proposal with him and Mr Griffiths was asked if there was any other area in the business in which he was interested. Mr Griffiths raised the prospect of moving into Mr Mack’s radio team and this was agreed to. He became a leading operative in that team. Mr Steele understood that Mr Griffiths was happy with the arrangement. He said that Mr Griffiths at no stage voiced any dissatisfaction to him about the changed arrangements. Mr Steele’s evidence was that there was no change to Mr Griffiths’ pay scale as a result of the new position. He said that the new team manager of Mr Griffiths’ old team was Ian Long.
Anomalies in records of Mr Griffiths’ team
51. In the course of looking at documentation concerning his new team members, Mr Long recognised some possible anomalies in allowances that had been paid to members of Mr Griffiths’ team in 2007. He reported this to Mr Steele and to Col Dunstan, the Network Design and Construction Resource Manager. Mr Steele’s evidence was that he spoke with the General Manager, Mr Pettiford, about the matter and, as a result, Mr Dunstan was engaged to look further into those issues. Mr Dunstan was also requested to comment on any anomalies he found. He completed a report in March 2008 and provided data gleaned from GPS records which recorded movements of vehicles used by Mr Griffiths’ staff, both normal and those on loan to him from other teams. The material was for period of three months and revealed vehicle start and finish times which did not agree with timesheet data; staff not remaining at temporary stations on weekends but driving considerable distances on weekends; vehicle usage out of work hours; and staff returning home early on completion of a project. One anomaly was a series of payments to Sheldon Davies, a casual labour hire member in Mr Griffiths’ team. He had been paid travel allowance while staying overnight at Mr Griffiths’ house at Southport instead of returning to Brisbane where the allowance would not be payable. The payments had been signed off by Mr Griffiths. Mr Steele said that these matters warranted investigation although, he said, he had an open mind at that stage because it was only unexplained raw data that had been raised at that time.
52. Mr Steele considered that the starting point of investigation was for the data to be reviewed by the team manager at the time, Mr Griffiths. As a result, Mr Griffiths was asked on 10 March 2008 by his new team manager, Mr Mack, to return to Brisbane from Longreach, a drive of more than 13 hours. On 11 March 2008, Mr Steele and Mr Mack met with Mr Griffiths. Mr Griffiths was asked to review the data that had been produced in Mr Dunstan’s report because it was he who had approved the various payments involved. Mr Steele followed up with an email in which he listed the matters that he wished Mr Griffiths to comment upon to help him to understand the data he had. On 12 March 2008, Mr Griffiths began the process of looking through the data. However, he became ill while looking at the data and saw Dr Bull who provided a medical certificate excusing Mr Griffiths from work for a month. On 12 March 2008, Mr Griffiths replied to Mr Steele’s letter in terms that it was unfair to have secretly gathered data on his staff only and that all other managers would be put on notice and be able to make adjustments to behaviour that may be in breach of policy. He noted that the data only went back over 90 days and considered that they would be able to make these adjustments. Mr Griffiths’ evidence was that it was unethical for him to be required to review the data without the staff involved being told about it. He believed that Telstra management was targeting him and/or his team.
53. Mr Steele noted that the data provided to Mr Griffiths for his perusal did not include information about Mr Griffiths himself. He said that no issues had arisen with Mr Griffiths’ own data.
54. Mr Steele undertook a routine half-yearly review of Mr Griffiths’ performance and completed his 2007/2008 Performance and Development Plan in December 2007. He agreed that it revealed no issues of concern in relation to Mr Griffiths. He also agreed that, in that process, he had an opportunity to review the data investigated by Mr Dunstan but said that his concern was with whether relevant documents had been appropriately signed off by Mr Griffiths and not with the accuracy of the content of the data. It was only when the anomalies were noted by Mr Long that his concerns were raised.
55. Mr Griffiths was referred to Mr Davies’ time sheets which he had signed. He agreed that Mr Davies was a friend of Mr March and himself and that he had been at his home on the days identified by Mr Dunstan and had stayed there overnight. He rejected the view that Mr Davies was not entitled to travel allowance while there because he was away from his own home. He said that Mr Davies lived at Deception Bay and would have a 12 hour working day if he came from and returned there after working on the Gold Coast. He could not recall whether he charged Mr Davies for any meals though he thought that Mr Davies bought take-away meals for all of them.
56. On 18 March 2008, Mr Griffiths sent an email to Mr Pettiford in which he expressed concern at the investigations which were taking place at that time. He referred to the meeting he had with Mr Pettiford in March 2007 and wrote that he “was heartened” by Mr Pettiford’s comments about him then. He referred to the folder of which he had been asked to review to look for anomalies. Mr Griffiths believed that he was being targeted in the process and he wrote that he found this highly disturbing and upsetting. Nonetheless, he said that he believed that the matters should be investigated and action taken if necessary. However, he did not consider it fair that it was restricted to staff associated with himself.
57. Mr Pettiford’s response, dated 19 March 2008, referred to evidence which had come to light in a recent investigation and which raised matters that needed to be further investigated. He wrote that Telstra was committed to deal with allegations promptly and with due procedural fairness and that no action would be taken until the investigation was completed. He noted Mr Griffiths’ concerns but assured him that the process would be fair and equitable and run in accordance with documented procedure and he added that Mr Griffiths’ input would be valuable.
Return to work arrangements
58. Mr Steele wrote to Mr Griffiths on 18 March 2008 about his stress-related condition. He referred to Telstra’s Injury Management Standard which is committed to assisting and encouraging staff to resume their normal duties. Accordingly, he requested that Mr Griffiths attend a meeting with him and a Return to Work consultant to assess the capability of his undertaking a rehabilitation program. Work Solutions was appointed to manage Mr Griffiths’ return to work. A Work Solutions report from Louise Colley dated 11 April 2008 included a summary of the details of Mr Griffiths’ injury:
Mr Griffiths reported that several work incidents and his relationship with his supervisor contributed to stress which adversely affected him. Mr Griffiths identified that his work role had substantially changed over the past few months and reported a perception that he felt he was being investigated. Mr Griffiths reported that that he developed symptoms of insomnia and psychomotor agitation several months ago which have worsened over the past few months.
59. Ms Colley wrote that Mr Griffiths reported no previous history of psychological injury or illness. She identified significant work-oriented barriers to his returning to work with Telstra. She wrote that Mr Griffiths would be able to return to work after 11 May 2008. Mr Griffiths returned to work on 12 May 2008 and was advised by Mr Mack that his return to work plan had been cancelled. He was advised by Mr Mack that he would not be able to undertake any travel and Mr Griffiths perceived this to be a limitation on his duty options. Mr Steele’s evidence was that limits were imposed on Mr Griffiths in his best interests because of the period of sick leave he had undertaken. Mr Steele discussed the process of Mr Griffiths’ return to work with the Human Resources management and Mr Mack. Together, they concluded that Work Solutions was not providing good results and that more could be done to get members back to work. It was decided to have another provider apply “a new set of eyes” to the matter.
60. Mr Griffiths was interviewed by Christy Livingstone from Konekt on 11 June 2008 and she completed a report for Mr Steele and Mr Mack on that day. Ms Livingstone detailed the history of Mr Griffiths’ concerns about events in the workplace including his criticisms of the earlier return to work assessment which put no action plan into place and left him feeling unsupported in his return to work with Telstra on 12 May 2008. In the report, reference is made to liaison by her with Dr Bull and the conclusion reached that, based on Dr Bull’s certificates, Mr Griffiths would be able to return to normal duties on 16 June 2008 but that he should not work at the Makerston Street office. The report included the comment that Dr Bull recommended against being returned to work in the environment of the two employees against whom he had issued EEO complaints.
61. On 16 June 2008, Mr Griffiths went to work at Makerston Street and was asked to clean out filing cabinets outside the office of Mr Johnson. Mr Griffiths’ work place was also close to Mr Steele’s office. Mr Steele said that he was not aware that Mr Griffiths had been allocated work outside his office as he had no part in allocating his duties at that time because this was done by his team manager, Mr Mack. Mr Griffiths objected to the work location and a meeting with Christy Livingstone was convened. He was moved away from Makerston Street to Boondall and was assigned no specific work. On 18 June 2008, Mr Griffiths was advised that he had to attend a PICM meeting on the following day at Makerston Street. He said that he had a panic attack at home that night and has not returned to work since.
The Proposed 2008 PICM
62. Mr Steele said that he was not to be involved in conducting the PICM process with Mr Griffiths in 2008 because he had stepped back due to a bullying allegation against him by Mr Griffiths. Mr Steele said that this had been investigated and the allegation had been dismissed. The PICM was to be conducted by Kevin Henrich but he was still consulted about the questions to be included in the PICM.
63. Mr Henrick was the Project Delivery Manager in 2008 with responsibility for PICM investigations and procedures. He said that, in the week of 8 June 2008, he was asked to undertake a PICM with Mr Griffiths. He had not been involved previously in the supervision of Mr Griffiths and was not aware that he had been on a return to work program. He said that he was appointed as an independent party in place of Mr Steele against whom Mr Griffiths had made a complaint. A workplace Investigation Plan was completed in accordance with Telstra’s Guide by Mr Steele and other HR staff to be used in a PICM with Mr Griffiths. On 18 June 2008, Mr Henrick advised Mr Griffiths that he was required to attend a PICM on 19 June 2008 at Makerston Street. He advised that it was concerned with possible breaches of Telstra policies in particular in regard to approval of travel time and overtime. On 19 June 2008, Mr Henrick was advised that Mr Griffiths would not be attending as he was unwell. Mr Henrick said that the PICM was suspended pending Mr Griffiths’ return to work.
64. Mr Griffiths, in his statement dated 21 April 2010, wrote that he obtained a copy of the PICM template at the office of his solicitor on 14 April 2010 and realised that it contained, towards the end, a pre-determined outcome.
65. Mr Henrick said that the PICM script included a range of allegations and questions. It was noted that the document to be utilised in Mr Griffiths’ proposed PICM included reference to potential outcomes of the process including disciplinary action, suspension and termination of employment. Mr Henrick said that these always appeared and comprised a range of measures that may be applicable. He said that the usual practice with a PICM process was to start by asking the interviewee to address the allegations and to comment on any questions in relation to the circumstances raised in the interview. That is followed by an adjournment during which the interviewing team consider the responses. A decision is made about whether disciplinary measures are required. If not, that part of the script is disregarded.
66. In cross examination, Mr Griffiths agreed that his action plan had raised the various issues which were to be dealt with in the PICM and that Telstra had the right to investigate. Mr Griffiths said that he had been handed a huge file of raw data and he said that he felt responsible because only his team was being investigated and he believed he was being targeted by Telstra.
67. Mr Steele agreed that some of the anomalies revealed in Mr Dunstan’s report were related to staff who had not been in Mr Griffiths’ team. He said that these were reviewed by another team manager. He agreed that the other team manager had not been subjected to a PICM process and said that this was because that team manager had reviewed the data as he was requested to do whereas Mr Griffiths had not done so. Mr Steele agreed that he was aware that Mr Griffiths had been on sick leave and that the PICM was arranged for shortly after he returned to work.
68. Mr Steele said that several other staff members were investigated as conduct issues revealed by Mr Dunstan were brought to his attention and that each was subjected to the PICM process. He said that the PICM process scheduled for Mr Griffiths was only one of those. After investigations were completed into the other members, one of them was dismissed, 15 others received written warnings and some were required to repay allowances.
CONSIDERATION
69. Dr Lockwood’s evidence was that some of the matters identified by Mr Murdock contributed to Mr Griffiths’ depressive disorder. These were Mr Johnson’s conduct towards him; Mr Hart’s failure to respond to his complaint about Mr Johnson; the conduct of Clarke and King; Telstra’s requiring Mr Griffiths to undergo a PICM process in 2007; and the events leading to the proposed PICM process in 2008. As we understand her evidence, she did not implicate, in that process, mistreatment of Mr Griffiths by Mr Steele in relation to the withdrawal of travel benefits or arrangements concerning the return to work program in 2008.
70. We accept Dr Lockwood’s evidence that Mr Griffith, from mid 2007, developed an adjustment disorder which progressed to a major depressive disorder by the time that she saw him in November 2008. We also accept her evidence that this was contributed to by aspects of his employment with Telstra which she identified. His condition will constitute an injury for the purposes of s 14 of the Act unless it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment as referred to in the exclusionary terms of s 5A(1) of the Act. If the injury was suffered as a result of an exclusionary term, it is not an injury under s 5A(1) of the Act and it is immaterial whether the injury is also contributed to as a result of any other employment-related circumstance. It is not necessary that that injury is suffered solely as a result of any of the exclusionary terms of s 5A(1) of the Act. That is the effect of the Federal Court decision in Hart v Comcare[11] which was applied to s 4(1) of the Act prior to the 2007 amendments. The principle has been applied to the operation of s 5A(1) of the Act.[12]
[11] [2005] FCAFC 16; (2005) 145 FCR 29
[12] See Henderson and Comcare Australia [2010] AATA 700 at [38]; Karalenko and Comcare [2010] AATA 49 at [53]; and Gilbert and Comcare [2009] AATA 224 at [16].
71. The ambit of the term administrative action was referred to by the Tribunal in Radulovic and Comcare[13] in the following way:
…the Tribunal considers that section 5A(2) does not extend to all forms of management action which may cause injury. To so interpret the provision could unduly stultify the underlying purpose or object of the Act, namely, to provide a ‘scheme of rehabilitation and compensation for employees who are injured in the course of employment’[14] unless there has been intentional self-infliction of an injury, or serious or wilful misconduct. The Tribunal considers the preferable interpretation, as a matter of statutory construction, is to limit the provision to the examples listed, to ‘anything reasonable done in connection with’ those examples, and to other administrative action which falls within categories comparable to those listed.
That conclusion is reinforced by the history of the provision and by interpretation of other similar legislation. Prior to the amendment of the exclusionary provisions in 2007, the exclusionary provisions referred only to disciplinary action, failure to obtain promotion or loss of a benefit. Although the current provision has clearly expanded that list, in particular, to make it clear that the provision was not limited to ‘disciplinary action’ as narrowly defined in the cases, the matters covered by section 5A(2) retain as a central theme that the administrative actions involve any assessment of performance or corrective action of an employee by a manager, as well as the failure to obtain a promotion, reclassification, transfer or benefit. The exclusionary provisions are not intended to be at large. In support of this conclusion, the expression ‘administrative action’ in the comparable WorkersRehabilitation and Compensation Act 1986 (SA) section 30A(a)(iii), for example, did not extend to the management style of a manager[15].
[13] [2010] AATA 777 at [73]-[74]
[14] Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill, iii.
[15] Keen v Workers Rehabilitation and Compensation Corporation[1998] SASC 7056; (1998) 71 SASR 42, 50.
72. The term reasonable, in the context of s 5A(1) of the Act, was referred to by the Tribunal in Re Georges and Telstra Corporation Ltd[16]:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of soundness of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair.
[16] [2009] AATA 731. See also Wilson and Comcare [2010] AATA 396 at [52] and Australian Concise Oxford Dictionary, 4th edition 2004.
73. The Tribunal has also held that, to be reasonable, the action must be lawful, must involve nothing ‘untoward’ and must not be ‘irrational, absurd or ridiculous’.[17] We agree with those respective interpretations.
[17] See Wilson and Comcare [2010] AATA 396 at [52]-[53] citing Comcare v Chenhall (1992) 37 FCR 75; Re Gilbert and Comcare [2009] AATA 224; and Repatriation Commission v Webb (1987) 13 ALD 421.
74. The administrative action identified in the Act includes:
(a) a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
75. In addition, it extends to other administrative action which falls within categories comparable to those listed in paragraph (a) to (f). The PICM process has mixed elements of counselling and disciplinary action. The relevant outcome is not determined until the PICM process is taken to an outcomes meeting. In the material before us, we have seen PICM outcomes which are akin to counselling, for example the action plan prepared for Mr Griffiths, and disciplinary action, for example the outcomes imposed on Mr Johnson, Mr March as well as Clarke and King. We are satisfied that s 5A of the Act embraces the administrative actions taken in relation to Mr Griffiths’ employment include the PICM process in 2007; and the enquiry into anomalies in the records of Mr Griffiths’ team in 2008 which led to the proposed PICM in 2008.
The PICM process in 2007
76. The PICM process to which Mr Griffiths was subjected in 2007 extends to the interview, the material covered at that interview and the outcomes that resulted from it. Each of these has been described as making a contribution to Mr Griffith’s psychiatric condition.
77. We do not accept Mr Murdoch’s contention that the PICM in 2007 was unnecessary and that the matters dealt with could have been dealt with by counselling. Colin Clarke rejected the view that it would have been appropriate to deal with the matter in that way. The allegation concerning the manner in which Mr Griffiths chose to deal with bullying complaints against his team by Clarke and King was made out and resulted in a significant component of the action plan drawn up subsequently. Mr Griffiths’ step-son was in his team but we accept the evidence of Colin Clark that it was, nevertheless, appropriate for Mr Griffiths to investigate the matter because it was his responsibility as team manager to do so. The evidence of Colin Clark and Mr Scammells was that Mr Griffiths was directed to deal with it. Mr Griffiths said that the matter was put to him but that he did not agree. It was not Mr Griffiths’ evidence that he advised them that he would not do so.
78. The other matters dealt with at the PICM interview were determined in Mr Griffiths’ favour. But we are satisfied that it was reasonable for them to be the subject of analysis, particularly the whistleblower complaints. As set out above, these were the subject of independent assessment by the whistleblower investigation team, applying Telstra’s whistleblower policy, and found to be worthy of further investigation as part of the PICM process. We are also satisfied that it was reasonable for all of the matters to be scheduled in a single PICM interview and note that the allegations which came as whistleblower complaints were specifically identified as such. As we understand it, it was the PICM process itself which revealed an absence of fault on Mr Griffiths’ part.
79. Mr Griffiths was critical of the continuation of whistleblower complaints from Clarke and King even though their employment had been terminated. While he agreed that they needed to be investigated, he considered that this should have been done “with an eye to whom the complainants were’. We have noted that Mr Pettiford expressed some criticism of the whistleblower investigation process but, despite that, he described the whistleblower complaints as ones which had to be fully pursued. Ms Callaghan was aware that Clarke and King were making the whistleblower complaints and, while she knew that they had been dismissed from Telstra, she said that did not mean that the allegations should not be investigated. She described their allegations as very detailed, specific and practical in the sense that they were able to be investigated. She said that it would have been inappropriate for Telstra not to investigate the allegations. We note that only a small percentage of their allegations were listed for further investigation.
80. We see the PICM outcome meeting on 30 March 2007 and the action plan provided to Mr Griffiths on 11 July 2007 as being part of the PICM process. Mr Griffiths was advised that he had breached the Telstra EEO and bullying policy by completing the complaint forms for his team members. However, he was told that he was not to be disciplined but that an action plan would be drawn up for him. He was highly praised by Mr Scammells and Colin Clark for what he had done in reporting misconduct. That was also the approach of Mr Pettiford later the same day.
81. The action plan provided to Mr Griffiths on 11 July 2007 led him to perceive that he was being punished by Telstra and to an extent greater than was the case with Mr Johnson. He was concerned that it reflected unfavourably on him and amounted to disciplinary action and that perception was one of the contributors to his depressive disorder. This is despite praise given to him on several occasions for his actions in reporting misconduct and his being advised on several occasions that the action plan was not disciplinary in nature but, rather, a remedial measure to assist with future actions. We are satisfied that the action plan was drawn up on that basis.
82. While we accept that the PICM process and the presentation of the action plan were stressful for Mr Griffiths, we are satisfied that the PICM process constituted reasonable administrative action taken by Telstra in a reasonable manner. We are also satisfied that the investigations undertaken by the whistleblower investigation team constituted reasonable administrative action and that the procedures adopted by it were applied reasonably and in accordance with Telstra’s policy in relation to Mr Griffiths’ employment.
Actions of Mr Steele: excess travel time (ETT) and Telstra vehicle use
83. Mr Griffiths met with Mr Steele about payments of ETT and use of Telstra vehicles on 3 October 2007, shortly after a presentation to all team managers of Telstra policies including that relating to ETT and vehicle use. ETT was not payable for travel to a usual work station but, rather, to a place where a person works on a temporary basis. Mr Griffiths had been receiving ETT because he had initially been employed at the Southport Telstra depot and the ETT had been agreed to by Mr Hart until June 2007. Mr Steele explained to Mr Griffiths that he was based in Brisbane and that he was not eligible for ETT. Mr Steele also advised Mr Griffiths that he did not satisfy the requirements for allocation of a Telstra vehicle as he started each day working at Makerston Street.
84. We do not accept Mr Griffiths’ allegation that the approach adopted by Mr Steele in the meeting amounted to bullying. We are satisfied that Mr Steele was implementing Telstra policy in relation to ETT and vehicle use and that it was part of his job to do that. Indeed, Mr Griffiths agreed that Mr Steele had the right to reach his conclusion and that he and Mr Steele had a different point of view. He accepted that he was given an opportunity to explain his position and agreed that he was based in Brisbane and was not field-based.
85. Clearly, the decisions made by Mr Steele had a significant financial impact on Mr Griffiths’ situation. It may well have contributed to the development of his psychiatric condition. However, we are satisfied that the procedure and decisions made by Mr Steele constituted reasonable administrative action which was taken by Telstra in a reasonable manner in relation to Mr Griffiths’ employment.
Appointment of Mr Griffiths as leading operative
86. At the end of 2007, Mr Steele became aware of some anomalies about “on call” payments to some employees and a reduced workload for Mr Griffiths’ team. Mr Griffiths recognised this in his request for a transfer to New South Wales. We are satisfied that Mr Steele foreshadowed to Mr Griffiths the prospect of merging Mr Griffiths’ team into another. We also accept that Mr Steele discussed the prospect of Mr Griffiths becoming a leading operative in the new structure and asked him to think about that change over the Christmas period. We do not accept that Mr Steele proceeded to institute the changes without further discussing the matter with Mr Griffiths on his return from leave. We accept Mr Steele’s evidence that he asked Mr Griffiths to indicate where he would like to be relocated and that he selected the team of Mr Mack. In the new position, he had no responsibility for staff and reported to Mr Long as team manager. While he considered that he had been demoted, we note that he suffered no loss of salary and we also note his comments that he was relieved not to be a team manager and that the new position enabled him to travel away from Brisbane which he was happy about.
87. We accept that Mr Griffiths did not express dissatisfaction to Mr Steele about the changed arrangements. We are satisfied that the new arrangement was reached after consultation between Mr Steele and Mr Mack and that the change in team structure was brought about to address the concerns associated with changing workloads. The change from team leader to leading operative has been referred to as making some contribution to the development of Mr Griffiths’ psychiatric condition. However, we are satisfied that the procedure and decisions made by Mr Steele constituted reasonable administrative action which was taken by him in a reasonable manner in relation to Mr Griffiths’ employment.
Mr Steele: anomalies in records of Mr Griffiths’ team
88. Mr Griffiths did not undergo a PICM in 2008. His incapacity for work arose when he was requested to review data from GPS records for the previous three months on movements of vehicles used by his team. Mr Dunstan had reported potential anomalies to Mr Steele in documents which had been signed off by Mr Griffiths. Mr Murdoch submitted that the effect of being confronted with the data was that Mr Griffiths suffered a panic attack which contributed to his psychiatric condition as demonstrated by his absence from work until May 2008 on sick leave.
89. Mr Murdoch submitted that it was unreasonable for Mr Griffiths to have been “dumped with responsibilities” for all of the members referred to in the report. However, as we understand it, Mr Griffiths was asked only to review the material and comment upon it. Mr Griffiths was not the only team leader required to undertake such a review but, on Mr Steele’s evidence, he was the only one who refused to do so and the only one for whom, subsequently, a PICM was planned. Mr Steele said that the matters were serious and warranted investigation. We note that, after investigations were completed into other members referred to in the report, one member was dismissed, 15 others received written warnings and some were required to repay allowances. This confirms Mr Steele’s preliminary view that the allegations were of a serious nature.
90. Mr Griffiths’ criticisms of the process do not extend to the substantive nature of the allegations in Mr Dunstan’s report. He expressed concern that other team managers would be forewarned of potential investigations. He reported his dissatisfaction to Mr Pettiford whose response was that further investigation was required, that fair and equitable procedures would apply and that Mr Griffiths’ input would be valuable.
91. Mr Griffiths was required to travel from Longreach to Brisbane for the meeting with Mr Steele and Mr Mack. However, as we understand it, he was able to break the journey with an overnight stop. Given his role as team manager at the time when the anomalies were alleged to have occurred, we are satisfied that it was reasonable for Mr Griffiths to be asked to review the material revealed in Mr Dunstan’s report. In the result, the request to Mr Griffiths to review the GPS data amounted to reasonable administrative action which was taken reasonably in relation to Mr Griffiths’ employment.
The proposed 2008 PICM
92. On 18 June 2008, Mr Griffiths was advised that he had to attend a PICM on the following day at Makerston Street. He had a panic attack at home that night and has not returned to work since. Criticisms by Mr Murdock of the preparations for the PICM process in 2008 were that insufficient regard had been given to the amount of time that Mr Griffiths had been on sick leave and had been reinstated on a return to work program. He noted that Mr Henrick who was responsible for Mr Griffiths’ PICM had replaced Mr Steele but was not aware that Mr Griffiths was on a return to work program. Mr Murdock submitted that Mr Henrich should have been aware of Mr Griffiths’ health status and that the PICM should not have been scheduled to be conducted at Makerston Street. He also submitted that there had been a predetermination of the process as indicated by the inclusion of the potential outcomes in the PICM questionnaire.
93. We accept Mr Murdoch’s submission in relation to Mr Henrick’s knowledge of Mr Griffiths work program but we also note that he had been declared by his doctor as fit for work. While we agree that it was proper for Mr Steele to stand down from the conduct of the PICM, because of the bullying complaint made by Mr Griffiths, it may have been preferable for him not to have assisted in the preparation of the PICM questions. We do not accept that the inclusion of potential outcome reflected a predetermination but, rather, a template which included available options to be discarded at the end of the PICM process if not needed.
Mr Johnson’s conduct and Telstra’s response to it
94. Some aspects of the administrative action taken by Telstra fell short of the standard of reasonableness. Mr Johnson’s misconduct in relation to Clarke and King was serious. It was not investigated until a formal complaint was made in December 2006. We agree with Mr Murdock’s submission that the matter was of such a level of seriousness that, when it was first reported to Mr Hart by Mr Griffiths, it should have resulted in an investigation. This is regardless of whether, as Mr Hart claimed, Mr Griffiths wanted to deal with it himself or, as Mr Griffiths claimed, he requested Mr Hart to do. We note that Mr Johnson was senior to Mr Griffiths at the time and it is not apparent how, in that situation, Mr Griffiths could have resolved the matter.
Return to work arrangements
95. There were also concerns about aspects of Mr Griffiths’ return to work program. The change of providers was not fully explained. Also, the stationing of Mr Griffiths outside of the offices of Mr Johnson and Mr Steele was in breach of the recommendation of his doctor and was specifically noted in the return to work report of Ms Livingstone from Konekt.
DECISION
96. On all of the evidence before us, we are satisfied that substantial aspects of the administrative action taken by Telstra in relation to Mr Griffiths’ employment were reasonable in nature and were taken reasonably. As these contributed to the development of ‘depressive disorder’, we are satisfied that this is not an injury as the terms is defined in s 5A of the Act for the purposes of s 14 of the Act.
97. The Tribunal affirms the decision under review.
I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE Deputy President and Mr R G Kenny, Senior Member
Signed: ................[Sgd]...........................................................
Alexandra Seagar, Research AssociateDate/s of Hearing 21 and 22 June, 15-17 September and 13 October 2010
Date of Decision 29 November 2010
Counsel for the Applicant Mr Chris Murdoch
Solicitor for the Applicant Mr Mark Ryan, Ryan Kruger Lawyers
Counsel for the Respondent Mr Charles Clark
Solicitor for the Respondent Ms Suzy Dole, Sparke Helmore Lawyers
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