Hamilton and Comcare (Compensation)

[2017] AATA 1139

Hamilton and Comcare (Compensation) [2017] AATA 1139 (14 July 2017)

Division:GENERAL DIVISION

File Number(s):      2015/5110

Re:Julie Hamilton

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 July 2017

Place:Sydney

The reviewable decision dated 12 August 2015 is set aside. In substitution the Tribunal finds that the applicant suffered psychological injury as a consequence of incidents/events in 2012 and 2013 that:

a)occurred in the course of the applicant’s employment; or

b)were contributed to, to a significant degree, by the applicant’s employment; and

c)were not reasonable administrative action taken in a reasonable manner.

The respondent is liable to pay compensation for an injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988. The matter is remitted to the respondent for determination of the applicant’s entitlement to compensation under the Act. The respondent is to pay the applicant’s professional costs and disbursements incurred as a result of this application, as agreed or taxed.

........................[sgd]................................................

Senior Member A Poljak

CATCHWORDS

COMPENSATION – workers compensation – section 14 the Safety, Rehabilitation and Compensation Act 1988 (Cth) – psychological condition – aggravation of an ailment – disease – home-based work – bullying and harassment – reasonable administrative action – code of conduct investigation – inadequate supervision – home visit – decision set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14

CASES

Commonwealth Bank of Australia v Reeve and Another [2012] 199 FCR 463

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

SECONDARY MATERIALS

Department of Human Services Agreement 2011-2014, Part F

REASONS FOR DECISION

Senior Member A Poljak

14 July 2017

INTRODUCTION AND BACKGROUND

1. Ms Julie Hamilton (“the applicant”) is of indigenous descent.

2. In 2005, the applicant suffered psychological injury as a result of a violent home invasion and was diagnosed with post-traumatic stress disorder, bringing to an end the applicant’s then career in social work attending disadvantaged youth in custody.

3. The applicant commenced employment with the Department of Human Services (“DHS”), in February 2006, as a customer service advisor on a full-time basis at DHS’s Tweed Heads Smart Centre.

4. In about July 2009 the applicant developed Meniere’s disease attributable to prolonged headset use and in or about October 2009 was medically assessed by DHS in relation to this and her ongoing psychological disorder. On the basis of this medical assessment DHS determined to reassign the applicant. The applicant was transferred to a processing role at DHS’s Varsity Lakes Smart Centre in early 2010. This role entailed processing of electronic files accessed through online delivery and electronic reporting without direct customer contact.

5. In October 2011, the applicant’s mother suffered a health emergency rendering her there after more dependent and requiring intensive domestic supervision. The burden for increased supervision fell largely upon the applicant and encroached upon her work performance, affecting attendance and causing intermittent work disturbance.

6. At all material times, the applicant was her mother’s primary carer.

7. By application dated 8 August 2013, the applicant made a claim for compensation under section 14 the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of psychological injury, namely “adjustment reaction with mixed emotional features”.

8. The respondent accepts that the applicant has suffered an ailment for the purposes of s4 of the SRC Act, namely, an “adjustment disorder with mixed anxiety and depressed mood which has evolved into a severe major depressive disorder” (“the psychological condition”).

9. By notice dated 21 November 2013, a delegate of the respondent issued a determination declining liability for the claim pursuant to section 5A of the SRC Act (“the original decision”), relying therein upon the reasonable administrative action exclusion contained in section 5A (1).

10. By notice dated 12 August 2015, a delegate of the respondent affirmed the original decision (“the decision”). This is the decision under review in these proceedings.

11. The applicant contends that the psychological condition was contributed to, to a significant degree, by the applicant’s employment with DHS in particular the behaviour of supervisors towards the applicant in relation to home-based work arrangements and disputes over record keeping, which the applicant perceived as being unjust bullying and harassment.

12. There are four significant events allegedly giving rise to the applicant’s injury. Namely, the events leading up to and the denial of home-based work; meetings that were held on 7 December 2012 and 9 January 2013; and a home visit by one of the applicant’s superiors, Ms Ward, on 3 March 2013.

13. The applicant further contends that the compensability of the psychological condition is not excluded by the ‘reasonable administrative action’ exclusion in s5A(1), because the ‘administrative action’ taken in connection with refusal of home-based work, the meetings held on 7 December 2012 and 9 January 2013 and the home visit by Ms Ward, were either not administrative action and/or not reasonable and/or were not taken in a reasonable manner. Accordingly the respondent is liable to pay compensation to the applicant in accordance with s14 of the SRC Act.

    ISSUES

14. The issues to be determined in these proceedings are whether the applicant has an ‘injury’ for the purposes of s14 of the SRC Act, and, specifically:

    ·whether the applicant suffers an “ailment”, or an “aggravation” of an “ailment” as defined in s4 of the SRC Act, that was contributed to, to a significant degree, by her employment with DHS, such that she has a “disease” under s5B(1) of the SRC Act, which may therefore meet the definition of “injury” in s5A(1)(a), and;

    ·whether any “disease” was suffered as a result of a “reasonable administrative action” taken in a reasonable manner with respect to the applicant’s employment, such that it is excluded from the definition of “injury” in s5A(1), and;

    ·whether the respondent is liable to pay compensation for an injury under s14 of the SRC Act.

    Does the applicant suffer from an “ailment”, or an “aggravation” of an “ailment” as defined in s4 of the SRC Act, that was contributed to, to a significant degree, by her employment with DHS?

15. There is a significant amount of medical evidence before me, all of which I have read and considered, some of which I have relevantly summarised below.

16. The applicant has been taking antidepressants since 2005. On 8 June 2005, Dr Joshua Devsam, a general practitioner, notes that psychologist and psychiatrist Dr Maxwell Katz had diagnosed the applicant with “adjustment disorder with mixed depression and anxiety” and records diagnosis as post-traumatic stress disorder (“PTSD”).

17. From 28 March 2006, the applicant was working full-time. A pre-employment medical report dated 28 March 2006, noted that the applicant had a history of “anxiety or stress reaction or depression”. The medical adviser confirmed that the applicant’s medical capacity was assessed to determine if she could perform her job requirements. The applicant was certified as medically suitable for the duties that she would be required to perform at the present time. The medical adviser recommended under the heading ‘Other comments’, “supportive supervision”.

18. On 4 September 2009, the applicant attended health assessment conducted by Dr Robert Allison, consultant otolaryngologist and on 8 September 2009, the applicant attended a health assessment conducted by Dr Curtis Gray, consultant psychiatrist. In his report dated 15 September 2009, Dr Gray noted that the applicant described no psychiatric history until the aftermath of a vicious and prolonged assault occurring early 2005. He said in summary:

    After this, she developed post-traumatic stress disorder (PTSD) but with the assistance of counselling services and antidepressant treatment, and Lifeline, she was able to make a substantial though incomplete recovery. She remains affected by significant ongoing anxiety symptomology which is, in essence, a partially resolved posttraumatic stress disorder. The direct effects of this condition include ongoing anxiety symptoms and a significant lack of trust in others, such that I would regard her as been incapable of effectively undertaking the duties of direct client contact in roles where clients may become agitated or angry.

    Unfortunately, this would include, in my opinion, direct customer contact for Centrelink and, certainly, social worker roles for Centrelink. She is, however, quite capable of undertaking office and clerical duties, and is hopeful of being able to continue in this capacity.

19. In turning to the specific questions that were asked of him, Dr Gray confirmed that he would “not regard Ms Hamilton’s PTSD as impacting on her capacity to perform her current normal duties and hours”. He reiterated that the applicant was “not rendered unfit to perform any of the duties of a customer service advisor due to her PTSD other than direct customer contact”. In regards to prognosis, Dr Gray noted that the applicant’s prognosis for her condition of PTSD was reasonably good in the long term. He said that she had “made a significant recovery, although by no means has her condition fully resolved, but her general symptom load is relatively low if she is able to manage both the work and domestic environment”.

20. As a result of the health assessments undertaken by Dr Gray and Dr Allison, some limitations were appropriately placed on the applicant. Namely in relation to headset use on face-to-face client contact.

21. Nothing much appears to have occurred in relation to the applicant’s mental health between September 2009 and 2011.

22. In about October 2011 the applicant’s mother had a significant downturn which increased the level of care required of the applicant. It is not in dispute that the applicant’s mother was very sick and that the level of care she required of the applicant was in direct contest with the applicant’s work.

23. On 17 November 2012, the applicant attended Dr Mark Brickley, a general practitioner. It is recorded in his notes that the applicant was “very stressed”. On 27 December 2012 the applicant again attended Dr Brickley. His notes record “VERY STRESSED/WORK NOT CONSIDERING HOW PT [patient] HAS TO TAKE CARE OF MOTHER”.

24. On 5 January 2013, the applicant attended Dr Renae Myhill, the general practitioner, complaining of workplace stress going on since May 2012. The notes of Dr Myhill record:

    works for Centrelink
    mother has severe health problems – COPD/mobility/multiple
    was allowed to work from home 3 days per week to facilitate carer’s role
    …
    was not made aware of how to keep time records at home which work now claiming was required
    union involved
    feels harassed at work
    causing severe anxiety and palpitations
    had PTSD and adjustment disorder 2005 (not related to work but to a home invasion) – work was aware of this at hiring
    back to work on Monday – unable to sleep – severe anxiety – concern that they may try to bully/force her out of work.

25. On 10 January 2013, the applicant again attended her general practitioner, Dr Myhill, complaining of anxiety and insomnia making reference to events at work the previous day. She was issued with a medical certificate covering 11 January 2013. The notes of Dr Myhill record:

    was taken into a 3 against 1 meeting with bosses – they were supposed to wait for the Union representative to arrive but chose not to
    they were claiming Julie [the applicant] said things she did not say
    Julie has impression they are trying to force out of the workplace by harassment
    they are saying her attendance is an issue
    they’re offering her retraining but in an area that she is unable to do – and she says when they hired her they were fully aware of her not been able to to [sic] head set phone due to Meniere’s and also unable to do face-to-face with clients due to PTSD – they are trying to manoeuvre her out of a position by doing this

    severe anxiety
    unable to sleep
    needs time to think about options

26. The applicant returned to work on about 14 January 2013 and worked intermittently until 14 February 2013. During that period the applicant saw her GP on numerous occasions and various medical certificates were issued.

27. The applicant last attended work on 11 February 2013 but she says she left work early feeling stressed and suffering panic attacks. The notes of Dr Brickley of 14 February 2013 record “seeing UNION/VERY STRESSED/HAD TO LEAVE WORK MONDAY 11/2-CRYING AND UPSET/PANIC ATTACKS”.

28. In April 2013 the applicant was diagnosed with benign renal cancer affected kidney was excised on about 7 May 2013.

29. On 3 September 2013, the applicant was assessed by Dr Elsa Yeung, consultant psychiatrist. In her report dated 16 September 2013, she noted that the applicant reported several incidents in her workplace which led to redevelopment of some of her depressive and an exacerbation of her pre-existing PTSD symptoms. Dr Yeung relevantly opined:

    From the assessment today, in my opinion it is clear that Ms Hamilton is still suffering from acute symptoms of the depression and anxiety. Given the acuity of her symptoms, I do not believe that Ms Hamilton is currently fit to work. Her current diagnosis is Major Depressive Disorder of moderate severity. This episode was precipitated by workplace problems and continue to be perpetuated by uncertainty of her work into medical condition. There was also an exacerbation of her previous underlying PTSD symptoms. Her PTSD symptoms have now resurfaced again.

    This is not uncommon when a patient experiencing depression, that the underlying PTSD symptoms could be exacerbated again. [Emphasis added]

30. Dr Yeung reassessed the applicant in April 2014. In her report dated 24 April 2014, Dr Yeung noted that since her previous review, the applicant had been admitted to a psychiatric hospital for more intensive treatment and that her medication had changed. She was of the opinion that the applicant’s symptoms had not improved since the last assessment and that the applicant was still unfit to work.

31. Dr Jeff Bertucen, consultant psychiatrist, opines in his report dated 11 March 2016, “[t]he personal visit of Ms Ward led to an acute exacerbation of anxiety and regression of chronic PTSD symptoms”.

32. At hearing, Dr Curtis Gray advised that an adjustment disorder can “evolve” into major depressive disorder. He said that the evolution involved a person’s symptom profile changing over time. Dr Gray opined that in early 2013, there was a difference in symptomology and that the applicant’s symptoms at that time were not predominantly PTSD; he said diagnoses of major depressive disorder were being made around that time. In cross examination Dr Grey elaborated on the process of the “evolution” of adjustment disorder to major depressive disorder and accepted that it was “not the usual course” but said adjustment can occur over time, particularly if other things happen.

    Consideration

33. I acknowledge that the applicant suffered a horrific home invasion in 2005 following which she was diagnosed with and treated for PTSD and an adjustment disorder. I accept that the applicant has been taking antidepressant medication since 2005. I also acknowledge that the applicant had other factors in her life at that time that may have impacted on her mental health condition such as a separation from her husband. Having reviewed the medical evidence, I am satisfied that the applicant’s PTSD and adjustment disorder were significantly resolved and treated by September 2009, when she was assessed by Dr Gray. The applicant was working full-time since 28 March 2006.

34. It is not in contention that the applicant’s mother had a significantly high need for care which fell predominantly on the applicant. In October 2011, the applicant’s mother suffered a significant downturn and the care required of the applicant increased. I acknowledge that there is a scattering of comments in some of the clinical notes, contemporaneous to that time, that the applicant was sometimes ‘stressed’. There does not however appear to be a significant downturn in the applicant’s mental health until about November 2012.

35. Having regard to the medical evidence, it appears that the applicant was initially diagnosed with some form of adjustment disorder with mixed anxiety and depressed mood which has ‘evolved’ into a major depressive disorder in early 2013 which became more evident after a series of events surrounding her work.

36. I accept that from about 2011, the applicant had a number of potential stressors in her life such as some unrelated health issues and the responsibility of caring for her ailing mother. However, when the applicant attended her general practitioners and reported her worsening symptoms in 2013, she specifically identified work issues as the significant aggravating factor. The GP notes of Dr Brickley and Dr Myhill record in some detail contemporaneous notes about work-related issues that the applicant faced at that time. Particularly in regards to issues surrounding home-based work, time recording, and a perception of bullying and harassment by superiors. These events accord with an aggravation of the applicant’s psychological condition of which work significantly contributed. 

37. Having regard to all of the evidence before me, I am convinced that the applicant suffered from an aggravation of a psychological condition, namely, “adjustment disorder with mixed anxiety and depressed mood that has evolved into a major depressive disorder”, which was contributed to a significant degree by the applicant’s employment with DHS, such that the applicant has a ‘disease’ for the purposes of s5B(1) of the SRC Act. Unless it was the result of administrative action of the kind referred to in the exclusion in s5A(1) of the SRC Act, the condition constituted an ‘injury’, for which the applicant is entitled to compensation pursuant to s14(1).

    Reasonable Administrative Action?

38. Section 5A of the SRC Act provides:

    (1)  In this Act:

    “injury” means:

    (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.

    (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.

39. In Commonwealth Bank of Australia v Reeve and Another [2012] 199 FCR 463, the Full Federal Court held that the exclusion in s5A of the SRC Act incorporated specific administrative action directed to a person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performs in his or her employment. The scope of “administrative action” was discussed by the majority of the Full Court, holding that it involved disciplining an employee or taking other steps under his or her contract of employment. In it did not include actions which define or delimit the employment, job or task entrusted to the employee to perform or which give directions to him or her as to how and when he or she is to perform it (at [74]). Justice Gray held at [33]:

    Matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, was not reasonably taken.

1. Justice Rares and Justice Tracy said:

   [60] The qualification in the final phase of the exclusion in s5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance arises out of, or in the course of, the employee’s employment. This suggested the Parliament intended that the exclusion reaction be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s5B(2)(b), provided “the nature of, the particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s5A, is concerned with the conditions in which the employee works, the terms of his or her engagement in his or her duties: cf John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 at 586 [72]-[73] per Dowsett J, with whom Spender J agreed.

   [74] However, the Explanatory Memorandum did not suggest that “administrative action” was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action” in s5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.

2. I agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at [47]-[48] where his Honour said:

   Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

3. The respondent contends that if any psychological condition was suffered by the applicant it was as a result of reasonable administrative action taken in a reasonable manner with respect to the applicant’s employment. There are four significant events identified. I address each in turn below.

   Decision to Refuse Home-Based Work (“HBW”)

4. In about June 2012, the applicant’s then immediate supervisor, Ms Sharni Hughes, countenanced home-based work (“HBW”) as a means for overcoming workplace disruption resulting from the applicant’s role as primary carer for her ailing mother.

5. After initial refusal by Ms Cheryl Ward, DHS’s Area Manager, intermittent/as-needed HBW was verbally approved on 24 July 2012.

6. HBW commencement was delayed pending suitable IT resources and began on or about 4 September 2012. Under the terms of the HBW arrangement, prior case-by-case approval was required for HBW and as necessary, the applicant sought telephone approval from her immediate supervisor ahead of the applicant’s ordinary start time.

7. On or about 17 September 2012, Ms Hughes proposed, and the applicant agreed to, a regular HBW arrangement each week on Tuesdays, Wednesdays and Thursdays. The change was implemented and the applicant worked at the Varsity Lakes Smart Centre on Mondays and Fridays and worked from home Tuesdays, Wednesdays and Thursdays. This continued up until 16 November 2012 (“regular HBW arrangement”).

8. In her statement dated 2 March 2017, the applicant says at [24]:

   Taken overall, HBW arrangement was a success. I could better manage my mother’s care, my personal health was improved, the workplace disruption was reduced, and my work output met/exceeded departmental benchmarks. There was during the time no criticism of my performance or even direct supervision/review of my home facility – these were taken to be adequate. I considered it a ‘win-win’ outcome.

9. In November 2012, Ms Ward learned of the regular HBW arrangement and on or about 16 November 2012, the arrangement was terminated. The applicant was only permitted to continue HBW each Thursday pending review. On or about 21 December 2012, HBW arrangements ceased entirely.

10. At hearing, Ms Ward said that she wasn’t upset at all about the regular HBW arrangement but said that it could not continue because people support had advised her of requirements that had not been satisfied, such as an Occupational Health & Safety assessment.

11. A subsequent application for HBW was denied on or about 22 December 2012.

12. It is agreed between the parties that the decision to deny HBW was administrative action. However, the applicant contends that the ‘manner’ in which the decision was made was unreasonable. The applicant submits that this is because the decision to deny HBW was based on a wrong characterisation of prior events; particularly in regards to record-keeping and the requirements/conditions placed on HBW which were not effectively communicated (if at all) to the applicant.

13. The applicant’s supervisors had an obligation to implement HBW properly and it should have been formalised in the form of a written agreement. This was not done, by all accounts, any HBW agreement between the applicant and her employer was verbal.

14. Part F of the ‘Department of Human Services Agreement 2011-2014’ sets out the procedure for flexible working conditions; clause F20 relates specifically to HBW (“the policy”). In regards to approval, clause F20.2 provides that an approved request for HBW will be formalised in a written agreement between the employee and the Secretary, Department of Social Services, and:

    the agreement will outline:

    (a)provision and maintenance of equipment;

    (b)security and occupational health and safety arrangements;

    (c)provision for appropriate supervision, communication, and ongoing regular contact with other team members; and

    (d)arrangements for the Secretary to access the home site. [Emphasis added]

    Clause F20.3 of the policy provides that arrangements made under clause F20 should be trialled for a short-term period, before longer term arrangements are implemented.

15. At hearing, Ms Hughes advised that she wasn’t “fully aware” of the policy in regards to HBW; “otherwise she would not have been reprimanded” for agreeing to the applicant’s HBW arrangements without an appropriate written agreement in place.

16. The applicant’s evidence is that at the outset, Ms Hughes said nothing to her about time keeping and only told her to “keep her numbers up and get the work done”. The focus was on productivity. The applicant says Ms Hughes told her to keep a record of daily events, such as IT issues, but it was very informal. The applicant only recorded major events such as delays due to technical problems. She says that if anything more was required, this was never communicated to her either verbally or written. She said at hearing that HBW was an effective way for her to care for her ailing mother while still meeting the demands of her position at DHS. As far as she was aware, the main priority was to meet her benchmarks, irrespective of when the work was actually done. The applicant advised that she tried to do as much work as she could between the hours 7am to 7 pm on the days she worked from home and at no stage prior to November 2012, was the applicant told that she was behind in productivity.

17. Ms Hughes acknowledged that there was some need for clarification around record keeping and said she “just assumed that the applicant would keep track of her work”. She didn’t believe she put the applicant into the position of being reviewed on a code of conduct issue because it “had nothing to do with productivity; it had to do with her record keeping…that’s not my fault.”

18. Similarly, Ms Ward provided no written instructions to the applicant about how HBW was to be carried out. At hearing she said that she had spoken to Ms Hughes about the HBW arrangement but did not talk about recording attendance. Ms Ward said she “expected Sharni [Ms Hughes] to be able to manage the situation”.

19. After the conclusion of the hearing, the respondent sought to rely on an additional document that was not put into evidence. The respondent relies on the document as one which was referred to by Ms Ward in cross-examination. The respondent submits that it does not seek to tender the document as a contemporaneous record of what took place at a meeting on 22 August 2012, between Ms Hughes and the applicant, but says that the document should be received merely as a copy of a document referred to by Ms Ward in her oral evidence which was allegedly received from Ms Hughes. In response, the applicant has provided a document which is very similar to the one that the respondent now seeks to tender. The typewritten text is identical but the handwritten notations are different. I accept the tender of the two versions of the document but consider that the documents deserve little weight.

20. It seems to be agreed between the parties that the essence of the document is in the typewritten texts, and the handwritten annotations on the two different versions were added sometime after the typewritten text was created. I accept that this is the case and disregard all of the handwritten annotations. 

21. On reading the content of the typewritten texts, it is clear that the note is not a contemporaneous record. This is plain from the last sentence of the document which makes reference to Ms Hughes checking up on the applicant’s record keeping “during this whole trial period”. This is plainly in contrast to the oral evidence given by Ms Ward which suggested that the document was made at the time that the conversation took place between Ms Hughes and the applicant in August 2012.  I am unable to reconcile exactly when the document was created; as such I place little weight on its contents as demonstrating that the applicant was given detailed instructions about daily time recording in August 2012.

22. In any event, the applicant kept handwritten notes of her daily output and recorded major events including some of the IT problems she faced. The first record is dated 17 September 2012, and the last is dated 5 December 2012. The notes, while fairly vague, describe events relating to her mother’s care that impacted on work, IT difficulties, and the number of reports she completed each day. Occasionally the applicant recorded start times and breaks. While the handwritten notes are by no means sophisticated and detailed, they do provide an informal record of daily work output and productivity.

23. The respondent relies on Customer Record Access Monitor reports (“CRAM reports”) to show that the applicant was underperforming during the regular HBW arrangement. The CRAM reports note all the times that the applicant logged in and off the system. Ms Ward’s evidence is that there are big discrepancies between the applicant’s handwritten notes and the reports. As a result of the applicant’s deficiencies with her record keeping, Ms Ward referred the applicant for a code of conduct review.

24. In an email dated 21 January 2013, Ms Ward advised Mr Glen Hadfield that she had undertaken a comparison of the applicant’s recorded attendance with the CRAM reports. She says “on cursory examination there appears to be over 100 hours unaccounted for in a three month period, significant enough I believe to warrant further investigation”. She attached to the email an overview of the approximate discrepancies, referenced to specific entries in the CRAM reports.

25. It is important to note, when reviewing the hours worked by the applicant, that regard should be had to standard break periods. The evidence shows that a regular day was 8 hours and 30 minutes. Ms Hughes’ evidence is that the standard OH&S breaks throughout the working day included a morning tea break of 10 minutes; a lunch break of 30 minutes; an afternoon tea break of 10 minutes and 5 minutes every hour.

26. The applicant’s evidence is that if she fell short of the standard working hours on one day, she would attempt to make up the shortfall on another day. As a result of this, I think it is only appropriate to look at the average hours worked by the applicant during the period that she was undertaking HBW.

27. On review of the CRAM reports and the overview provided by Ms Ward in her email dated 21 January 2013, there are many inaccuracies. For example:

    ·For 6 September, Ms Ward records the applicant logging onto the system at 8.49 and logging off at 9.58, logging back on at 15.31 and logging off at 16.47. However the CRAM reports show that the applicant logged on at 8.49 and logged off at 10.13, she logged back on at 15.31 and logged off at 17.02;

    ·For 28 September, Ms Ward records the applicant logging onto the system at 7.00 and logging off the system at 15.07. However the CRAM reports show that the applicant first logged on at 7.02 and logged off at 15.27.

28. The applicant submits that 80% of the analysis of the CRAM reports was incorrect. The applicant’s analysis was that there was only about one hour shortfall each day on average. Unfortunately, I’m not experienced in analysing CRAM reports, so I am not able to confirm the accuracy of the respondent’s submission. But what I do accept, on my review of the reports, is that Ms Ward’s overview of the CRAM reports contains a number of errors.

29. Taking a step back, it is clear to me that the applicant was someone trying to do the best that she could in a very difficult situation. As already stated, she was trying to manage her role as primary carer for her ailing mother and her work duties. HBW was meant to be a way for the applicant’s employer to support her during this difficult period. There were a number of failings of the applicant’s superiors in ensuring that the applicant was properly set up for HBW. Namely, in respect of IT and OH&S. Her immediate supervisor failed to adequately advise her of her time keeping responsibilities, as did Ms Ward. No formal written agreement was in place pursuant to clause F20.2 of the policy. 

30. It is plain on the evidence of Ms Ward and Ms Hughes, that the applicant’s productivity was not in question. There is no evidence before me that the applicant failed to meet her benchmarks. The aggravating issue is her time recording. What I find surprising, is that the applicant’s supervisors reprimanded her, obtained CRAM reports and referred her for a code of conduct review without first considering other options.

31. Clause F20.3 of the policy provides that HBW should be trialled for a short period of time, I assume, to see whether or not it was an appropriate and effective working arrangement. In total, the applicant was working from home for a period of no more than three months. This is a relatively short period of time. If her superiors were not satisfied with the arrangement and the transparency provided by the applicant’s handwritten diary notes of her time keeping, this period of time could have been seen as a “trial”, changes could have been implemented and the applicant could have been provided detailed guidance of her failings with timekeeping. This process, in my mind, would have been reasonable administrative action.

32. Ms Ward and Ms Hughes instead took a more combative approach. They failed as supervisors to implement the HBW agreement properly and Ms Hughes failed to provide the applicant with adequate supervision and feedback in regards to her timekeeping. This contributing factor to the failure of the HBW agreement cannot be ignored.

33. Having regard to the circumstances faced by the applicant, the circumstances surrounding the approval of HBW and the failings of the applicant’s supervisors, I find that the steps taken to terminate the HBW arrangement, reprimand the applicant and refer her for a code of conduct review were not reasonable administrative action.

    Meeting held on 7 December

34. The work Christmas luncheon was booked for 12 pm on 7 December 2012.

35. The applicant says that just prior to heading out for lunch at approximately 11:45 and without any notice, Ms Ward and Ms Hughes called her into a meeting room for a “quick catch up”. The applicant says that she proceeded with the meeting because she didn’t want to feel anxious over lunch and just wanted to get it over and done with. Instead of a quick catch up, the applicant says that the meeting lasted about two hours and fundamentally concerned her work performance and that arrangements were necessary to address it, including revised care arrangements attending to her mother (e.g. nursing home). She says that she felt it was in effect disciplinary in nature, giving notice that she was underperforming and that arrangements were necessary to address this including revised arrangements. The applicant says that she found the meeting very distressing and said that at times the tension manifested as aggression and afterwards she felt shocked and defeated and went straight home, missing her Christmas function. The applicant says that she was hysterical after the meeting and that she was crying a lot and felt like everything she had ever done “wasn’t worth a cent”.

36. At hearing, the applicant elaborated on the issues discussed during the meeting. She said that firstly Ms Ward talked about HBW and said that she was going to get CRAM reports. The applicant says that Ms Ward suggested to her that her mother’s care level was too high and said she should put her mother in a nursing home. This caused the applicant great distress, as being of indigenous descent, she was to look after her elders. She says that she was told that she wasn’t taking care of her mother properly and that her mother needed more care than she could provide.

37. The applicant’s performance was also discussed but she was not provided with any specific data or evidence of underperformance. She says she was told that she may not be suitable for Centrelink anymore and that she may be better at Child Support or Medicare.

38. At hearing, Ms Hughes could not recall how the meeting was organised and by whom, how and when the applicant was asked to attend, how long the meeting went for, whether it was disciplinary in nature, whether the applicant left the meeting crying and she had “no idea what was discussed”. She said that she only recalls what was written in her statement. Ms Hughes has provided a statement in these proceedings which is undated. She could not provide any assistance at hearing as to when the statement was written and said that it was written from her recollection. She wasn’t sure if it was contemporaneous. The statement provides very vague details about the meeting and it is unclear what part of evidence relates to each meeting. From what I can gather, Ms Hughes notes that the meeting was to discuss arrangements to assist the applicant in caring for her mother and she says that the applicant at the end of the meeting “was fine with the discussions”.

39. Ms Ward on the other hand was a little more forthcoming. At hearing she said that the Christmas lunch was booked for 1 PM and that she gone to the office early to talk to the applicant about the HBW arrangement. She says that the meeting went for 40 minutes and that she did not discuss anything else during the meeting. Ms Ward said that she could not recall whether she or Ms Hughes approached the applicant to attend the meeting. She confirmed that there was no advanced warning of the meeting and that it “was just a chance meeting”. She could not recall whether they discussed the applicant’s productivity and obtaining CRAM reports but said that they only discussed her recording of hours. Ms Ward said that a discussion about the care levels of the applicant’s mother didn’t happen. She said that the meeting wasn’t tense and the applicant was quite happy at the end of the meeting. It was agreed that it was fine for the applicant to go home instead of attending the Christmas party. Ms Ward has provided an additional undated statement in these proceedings in response to the second claim lodged by the applicant, which I have read and considered.

1. What is plain on the evidence is that the meeting on 7 December was not represented to be an action of a disciplinary nature nor of a counselling action. No notice was given of the meeting and by all accounts it was impromptu. Despite the applicant’s evidence that the meeting was of a disciplinary nature, there was no formal appraisal of the applicant’s performance. What appears to be the main focus of the meeting were the care level of the applicant’s mother and the revision of arrangements to accommodate the applicant’s role as primary carer.

2. The meeting was not a reasonable appraisal of the applicant’s performance nor could it be construed as reasonable counselling action. While the meeting may have quickly descended from a “quick catch up” into something much more serious, the meeting cannot be said to be administrative action for the purposes of s5A of the SRC Act.

3. Even if, contrary to my findings in this regard, a portion of the meeting was administrative action taken “in respect of” the respondent’s employment, it was not taken in a reasonable manner because the administrative action occurred without notice to the applicant. As was observed by Bleby J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42, whether conduct can be classified as reasonable is a question of fact. His Honour said at [63]:

   In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.

   Meeting held 9 January

4. On about 21 December 2012, the applicant arranged to meet with the site manager Mr Paul Prendergast and informed him of her sense of extreme pressure and alienation at work. The applicant says that she told him of some of her personal history including the events surrounding the home invasion in 2005 and how it had affected her. The meeting lasted about 10 minutes when she says while he seemed sympathetic; he postponed any constructive action until the New Year.

5. It appears that two meetings were scheduled on 9 January 2013, one to discuss the applicant’s workplace concerns including issues raised with Mr Prendergast on 21 December 2012 and another to discuss a medical certificate. The first meeting started at 9:30 AM with Mr Prendergast, Ms Ward and Ms Hughes in attendance. The applicant says that the meeting was pushed forward to 9:30 AM from 11 AM at the last moment and she felt pressured to go along with it. This was significant for the applicant because she says that the change in time meant that her union representative could not be present.

6. At paragraph [37] of the applicant’s statement dated 2 March 2017, she says that the meeting started by her reading from the notes she had prepared, which listed grievances and identifying specific dates and times. She said that at first Ms Ward and Ms Hughes listened and said nothing but as she went on they increasingly interrupted and the exchanges became heated. She said that when she made reference to Ms Ward commissioning a CRAM report, Mr Prendergast seemed surprised that such a report had been commissioned and asked her what she knew about it to which the applicant replied that it was referred to in the reasons for denying HBW. The applicant further says that Ms Hughes defended the HBW arrangement by embellishing the recording requirement. Once the meeting was concluded, the applicant says she phoned Ms Megan Leonard of the CPSU to alert her to what had happened. She says that by that stage she was pretty hysterical and it was clear that the meeting had been more “destructive than constructive”. Ms Leonard attended to support the applicant in a later meeting that day scheduled for 11 AM in regards to a medical certificate and its impact on the workplace, but the meeting only lasted for approximately 15 minutes because the applicant did not and could not continue.

7. Ms Hughes’ evidence is that the two meetings on 9 January were conducted normally. Her undated written statement basically confirms the applicant’s evidence about the content of the meeting in that she discussed issues she had raised earlier with Mr Prendergast. As previously stated, Ms Hughes statement was written from her recollection and she could not confirm whether it was contemporaneous.

8. At hearing, Ms Ward said the meeting started at 10 AM was not out of control. She acknowledged that it was tense and frustrating. She said that she could not recall fists banging on tables but conceded that there “could have been voices raised in frustration”. Ms Ward has provided a written statement in these proceedings which is undated. It is very detailed about the issues discussed during the meeting at 10 AM on 9 January 2013 and confirms the applicant’s evidence that she raised a number of grievances at the meeting. Not much more can be taken from the statement. I am concerned that the statement was created from recollection, and as the heading suggests, it was created as a response to the applicant’s Comcare claim and statement. At hearing Ms Ward said that she compiled the statement from her notes. It is not a contemporaneous account.

9. Mr Prendergast’s written statement dated 16 August 2013, provides an account of his interaction with the applicant leading up to and including the meeting on 9 January 2013. I have carefully read and considered the statement. As with the statement of Ms Ward, I am mindful that it was created in response to the applicant’s Comcare claim and statement and is not a contemporaneous account, although Mr Prendergast did say at hearing that the statement was drafted from notes that he took at the time. Mr Prendergast gave oral evidence at hearing and said he did not recall any swearing or fists banging at the meeting but said that “voices got raised a little not to the point of shouting”. He said that he “didn’t think the meeting needed controlling”. Mr Prendergast said that the applicant did get emotional; but was not crying or sobbing throughout the meeting. He said that it was tense and they did not resolve all the issues that arose.

10. The most contemporaneous record of the meeting and its effect on the applicant is contained in the clinical notes of her general practitioner, Dr Myhill from 10 January 2013. I place greater weight on the contemporaneous record rather than the notes created well after the meeting on 9 January 2013. The note records that the applicant said she “was taken into a 3 against 1 meeting with bosses – they were supposed to wait for the union representative to arrive but chose not to”. She records that the applicant was suffering from severe anxiety and insomnia making reference to the previous day at work, being 9 January 2013.

11. The meetings on 9 January 2013 were called to raise grievances of the applicant and to discuss a medical certificate and its impact of the workplace. While the first meeting was arranged for the applicant to raise her grievances, I am satisfied that the meeting descended into something more serious. Voices were raised and the conversation once again diverted to the applicant’s HBW arrangement and issues with her time recording. There was no formal appraisal of the applicant’s work performance during the meeting and the meeting was never represented as being of a disciplinary nature. The second meeting could only continue briefly because the applicant was too distressed from the earlier meeting and couldn’t continue.

12. I am satisfied that the meetings on 9 January 2013 cannot be considered administrative action for the purposes of section 5A of the SRC Act.

13. Even if, contrary to my findings in this regard, a portion of the meeting was administrative action taken “in respect of” the respondent’s employment, it was not taken in a reasonable manner because the administrative action occurred at a time when the applicant’s union representative could not attend and the meeting was arranged for the sole purpose of the applicant raising her grievances, it was not performance review or disciplinary action. I’m also satisfied that the meetings were less than pleasant; voices were raised and it was “tense”.

    Home Visit

14. On 4 March 2013, Ms Ward visited the applicant at home to hand deliver a letter notifying her that she was being investigated for potential breaches of the code of conduct in connection with her time recording practices. When questioned about why she hand-delivered the note to the applicant, Ms Ward said that she thought it was her responsibility to guide the applicant through the process and she didn’t think it was very supportive to send the letter by post. She said that she didn’t think the applicant would mind her delivering the letter to her personally and she thought that the applicant was advised of the delivery.

15. At that time, the applicant was on stress leave. At hearing, Ms Ward initially stated that she wasn’t aware that the applicant was off work on stress leave, she later said that she knew the applicant was off work from anxiety. When shown an email addressed to her and dated 23 February 2013, Ms Ward remembered that the applicant was off work on stress leave.

16. Ms Ward gave evidence at hearing that she did not contact the applicant prior to visiting her at her home. She said Ms Hughes told her that the applicant wasn’t answering her phone. Ms Ward accepted that in hindsight she should have called and could have sent an email. She said that she spoke to Mr Hadfield prior to visiting the applicant at home and the Glen had spoken to ‘people support’, who had allegedly made contact with the applicant. After the home visit, Ms Ward said she contacted ‘people support’ who assured her that there was no good time to deliver news like that. She said that there was a “failure of someone not to contact the applicant and tell Glen”.

17. Ms Ward’s evidence is that Mr Hadfield decided that Mr Prendergast would deliver the letter to the applicant’s home. Mr Prendergast for one reason or another couldn’t do it. It was then apparently suggested by both Mr Hadfield and Mr Prendergast that the letter could be sent by mail, but Ms Ward did not think that it was appropriate or very supportive. She “put her hand up” to deliver the letter to the applicant at her home.

18. Mr Prendergast gave evidence at hearing that Ms Ward and Mr Hadfield did not talk to him about the home visit.

19. There is some controversy about what was said between Ms Ward and the applicant during the home visit. In my mind this is immaterial. The aggravating issue is that Ms Ward visited the applicant’s home unannounced and at a time when the applicant was on stress leave, to deliver a code of conduct letter. I accept Ms Ward’s evidence that the applicant was very angry to see Ms Ward at her home and that she asked her to leave.

20. The applicant’s evidence confirms that she was not contacted by anyone prior to the home visit and was surprised to see Ms Ward at her home. She accepted in cross-examination that receiving the code of conduct letter; even by registered post would have been stressful. The applicant says in her statement dated 2 March 2017 at [44]:

    I was really affected by Cheryl Ward’s visit to my home. I was crying, shaking – I even wet myself on the way to the bathroom when she left. I felt powerless, angry and violated. It was like their vindictiveness new no bounds.

21. While giving the code of conduct letter to the applicant can be said to be administrative action, it was not done in a reasonable manner. The applicant had not been contacted by either telephone or email prior to a home visit. Frankly, given the lead up to the home visit, the circumstances surrounding the code of conduct letter and the applicant’s health condition at the time (which was known by Ms Ward); it was completely inappropriate and unreasonable for Ms Ward to visit the applicant at her home.

22. I am more than satisfied that Ms Ward visiting the applicant at home to deliver the code of conduct letter is not reasonable administrative action.

    DECISION

23. The reviewable decision dated 12 August 2015 is set aside. In substitution the Tribunal finds that the applicant suffered psychological injury as a consequence of incidents/events in 2012 and 2013 that:

    a)occurred in the course of the applicant’s employment; or

    b)were contributed to, to a significant degree, by the applicant’s employment; and

    c)were not reasonable administrative action taken in a reasonable manner.

24. The respondent is liable to pay compensation for an injury under s14 of the SRC Act.

25. The matter is remitted to the respondent for determination of the applicant’s entitlement to compensation under the SRC Act.

26. The respondent is to pay the applicant’s professional costs and disbursements incurred as a result of this application, as agreed or taxed.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

...........................[sgd].............................................

Associate

Dated: 14 July 2017

Date(s) of hearing:	6, 7, 8 and 9 March 2017
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Mr M Kreveld, Michael Kreveld Legal
Counsel for the Respondent:	Mr A Shatz
Solicitors for the Respondent:	Mr B Dean, Australia Government Solicitor