Hart and Comcare
[2011] AATA 601
•30 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 601
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1468
GENERAL ADMINISTRATIVE DIVISION ) Re Victoria Hart Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member Jill Toohey and Dr Tony Austin AM Date30 August 2011
PlaceSydney
Decision The decision under review is set aside and in substitution the Tribunal decides that Ms Hart suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 and is entitled to compensation. ................[sgd]..............................
Senior Member
CATCHWORDS
COMPENSATION – adjustment disorder – whether condition was result of reasonable administrative action – performance management process – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14
REASONS FOR DECISION
30 August 2011 Senior Member Jill Toohey and Dr Tony Austin AM Background
1. Victoria Hart has been a Commonwealth public servant since around 1982. From August 2000 to October 2010, she worked as a customer service officer at the Child Support Agency (CSA). Up until 2009, her various positions at the CSA all involved taking telephone calls from members of the public about child support payments.
2. In 2005, Ms Hart developed “an adjustment reaction with anxious mood” as a result of incidents at work, the details of which do not matter here. Comcare accepted liability for her injury. She was paid compensation and, by 2007, had recovered.
3. These proceedings concern Ms Hart’s claim that, as a result of a particularly abusive call from a member of the public in April 2009, she developed an adjustment disorder with anxiety and depression. She claims compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act).
4. It is not in dispute that Ms Hart suffered a psychological condition (variously described) in 2009 but Comcare says her condition was the result of reasonable administrative action and is therefore not a compensable injury within the meaning of the Act.
The legislation
5. Comcare has a general liability to pay compensation for an injury suffered by an employee that results in death, incapacity for work or impairment: s 14 of the Act.
6. 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: s 5A.
7. Section s 5B defines disease to mean:
(a)an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
8. Significant degree means a degree that is substantially more than material: s 5B (3).
9. By s 5A (2) of the Act, reasonable administrative action is taken to include:
(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.
The issues
10. We have to determine whether the respondent is liable under s 14 of the Act to pay compensation to Ms Hart. That requires us to determine:
(i)whether, on or about 29 April 2009, Ms Hart suffered an injury which arose out of or in the course of her employment, or a disease to which her employment significantly contributed;
(ii)if so, whether her condition is not compensable because, to a significant degree, it was contributed to by reasonable administrative action taken in a reasonable manner.
Did Ms Hart suffer a work-related injury in April 2009
11. Ms Hart claims she suffered an aggravation of her adjustment disorder as result of a particularly abusive phone call from customer in April 2009. She cannot recall the exact date of the call but says it happened a week or two before she saw her doctor who certified her unfit for work.
12. Ms Hart claims the female customer wanted to know if her child support payments were available, and became abusive when Ms Hart told her they were not, because they had not been received from the woman’s partner. Ms Hart says she tried to explain various legal requirements and CSA processes but the customer started swearing at her, repeatedly used foul language including “f---“ and “c---“.
13. The customer then demanded to speak to Ms Hart’s supervisor. Ms Hart says she placed the call on hold and explained the situation to her team leader, Ms Leah Boulter, who said she would not speak to the customer at that time but would call her within 48 hours. When Ms Hart relayed this message, the swearing escalated into racial abuse along the lines of “why don’t you go back to where you came from you f------ bitch”. (Ms Hart was born in Brazil and speaks with a slight accent).
14. The Tribunal heard evidence about the CSA’s “escalation policy” for dealing with difficult callers. The policy directs staff to transfer a difficult call to a team leader who will take the call “if available” and, if not, will call back within 48 hours. When this happens, the staff member creates “an email in-tray” for the team leader confirming the call.
15. We heard a good deal of evidence about the “escalation policy” which has varied over time. In the early days, a team leader was expected to take a call immediately but, more recently, if not available, the team leader may call back within 48 hours.
16. Mr Matthew Erson-Smyth, the service manager and Ms Boulter’s immediate superior, gave evidence that it is for the team leader to use her judgment to determine priorities and decide whether she is available to take a particular call. Ms Hart’s understanding of “available” was somewhat different. To her mind, Ms Boulter was “available” because she was at her desk at the time and she should have taken the call, and Ms Hart felt frustrated, annoyed and let down by her apparent lack of support.
17. Ms Hart’s interpretation of the policy is not supportable. Clearly, any team leader would have to use her judgment in such a situation. Moreover, an exchange of emails she had with Ms Boulter in December 2008 shows that she should have known that a team leader might not be able to respond immediately. However, we accept that what she perceived as Ms Boulter’s lack of support compounded the distress she felt about the phone call.
18. Ms Hart gave evidence that difficult, even abusive, calls were common but the intensity and hatred directed at her by the customer on this occasion was unlike anything she had experienced previously. She kept working that day and the following days but she was not coping; she could not sleep and was replaying the call in her mind. On 20 April 2009, she saw Dr Kieran Nixon who certified her unfit for work. She returned to work on reduced hours on 4 May 2009. Her hours increased gradually over time but she no longer took calls from the public. In October 2010, she took early retirement.
19. On 1 May 2009, Ms Hart saw Mr Tom Gross who reported that she had been working on the phones consistently for years; she had asked on a number of occasions to be assigned other duties to give her a break but this had not happened. He noted that her father-in-law had died and she had been “put on performance improvement” because of her sick leave. He noted “[t]he final straw came for Ms Hart when she took a call from an irate customer who then asked to speak to the team leader. … [and then] abused her – telling her to ‘go back to where you came from’, used swear words etc”.
20. On 19 June 2009, Ms Hart saw Dr Wayne Mason, psychiatrist, at the request of the CSA. He diagnosed her as suffering from Adjustment Disorder with Anxiety and Depressed Mood. As far as he could ascertain, her condition “arose from a combination of being exposed to a particularly abusive telephone call from a client and then being subjected to what she saw as a lack of support from her team leader and critical attention from the administration with regard to her attendance record”.
Did the call happen?
21. Comcare submits that Ms Hart’s claim about the abusive call is open to doubt on a number of grounds and should be approached with caution.
22. There is no evidence to show positively that the call occurred. Most, but not all, calls taken by CSA staff are recorded for training purposes. However, a search of transcripts of recordings of calls taken by Ms Hart around April 2009 has failed to identify a call matching what she describes.
23. Ms Hart did not make a note of the call at the time. She did not complete an Incident Report form, as commonly happens when an incident of some kind occurs in the workplace. She says she did not regard the call as “an incident” at the time and, afterwards, she was in crisis and not thinking properly. However, she did talk to two workmates about what had happened. Their evidence is considered below.
24. Ms Boulter gave evidence that she has no recollection of this particular call. She recalls only two occasions when Ms Hart “escalated” a phone call to her. The first was in December 2008. An exchange of emails between Ms Boulter and Ms Hart at the time confirms this call.
25. Ms Boulter could not recall when the second occasion occurred but says it was not the call in April 2009 referred to by Ms Hart. It happened earlier in the year when she told Ms Hart she could not take a call at the time and would call back within 48 hours. However, nothing came of the call because, the next day, Ms Hart told her she would be “proud of her” because she had “turned the customer around” and there was no need for her to call back. Ms Hart gave evidence that she recalls this second call, in February or March 2009, but it was not the call which is the subject of her claim.
26. Ms Boulter gave evidence that the “escalation” procedure would have required Ms Hart to send her an email about the call. (There is an email in evidence in relation to the escalated call in December 2008 along these lines). Ms Hart maintains that she “put an in-tray in the email” in the system for Ms Boulter to return the call in April 2009. However, there is no record of such an email.
27. Ms Hart gave evidence that she talked to Ms Boulter some time in May, after she returned to work, about the phone call. Ms Boulter disputes this. She has no recollection of the call, either at the time or later.
28. Two of Ms Hart’s co-workers gave evidence supporting her claim.
29. Mr Ted Herbert has worked at the CSA since August 2000, including a period of about 18 months when he worked in the same area as Ms Hart. He gave evidence that she came to his cubicle in April 2009 just before lunchtime. He could not recall the exact date but he recalled it was in April because he and colleagues had been talking about Anzac Day. He says Ms Hart looked very upset; her eyes were puffy and she looked like she had been crying. She told him, and Mr Kamlesh Kumar, who worked in the adjacent cubicle, that she had had a very bad phone call and been abused by a customer. After a short time, she went into another room with Mr Kumar, who was a union representative and had supported her in the past.
30. Mr Herbert has worked as a customer service officer. He gave evidence that abusive calls in which customers give vent to their feelings are common at the CSA but are usually directed at the agency or the system and not an officer personally. In cross-examination, he said he would have expected Ms Hart to fill in an incident report form with her team leader about what she had described.
31. Mr Kumar has worked as a customer service officer at the CSA but now works for another agency. He gave evidence that Ms Hart approached him and Mr Herbert about an abusive call in April 2009. He recalled he had been discussing the Anzac Day and Easter breaks with Mr Herbert. He recalled Ms Hart being upset and “very teary eyed”. He did not know how long after the call she came to see him, but she mentioned it was the last call she had taken. He told her she should discuss the matter with her team leader and then with the union if it could not be resolved that way. He did not suggest to her that she should complete an incident report form because it was not something he would have done himself after an abusive call.
32. Comcare says Ms Hart did not seek medical attention for some time and neither Dr Nixon nor Dr Marion Lucre who were the first doctors she saw after the call, refer to it specifically in their notes. However, some support for Ms Hart’s claim can be found in their reports and other medical documents.
33. On 20 April 2009, Dr Nixon, who was not her regular doctor but worked close to the CSA, certified her unfit for work until 24 April inclusive for an injury that occurred “coping with demands difficult clients and time pressure” (sic).
34. On 24 April 2009, Ms Hart saw Dr Lucre who issued a certificate stating “Coping with demands of difficult clients and pressure of time”. On 1 May, Dr Lucre noted that Ms Hart was “Under stress at work and not coping with working on phone calls from the public”. She referred Ms Hart to Mr Gross, psychologist, who reported on 1 May 2009, noting the abusive call (see paragraph [19] above).
35. On 19 June 2009, Ms Hart saw Dr Mason, whose report dated 25 June 2009 also refers to the abusive phone call.
Consideration
36. We agree with the respondent that there is room to doubt Ms Hart’s claim about the phone call. However, Ms Hart appeared to us generally to be a truthful witness and we have no reason to doubt the evidence of Mr Herbert and Mr Kumar, whose recollections are consistent with her evidence.
37. We accept that CSA staff commonly deal with difficult, sometimes abusive, calls. Against that background, it is not surprising that Ms Hart did not complete an incident report form. However, we do not accept her evidence that she sent Ms Boulter an email about the call. Ms Boulter disputes her evidence and there is no record of such an email. It is also surprising that Ms Boulter has no recollection of this particular call, and that Ms Hart does not claim to have talked to her about it until after she returned to work in May 2009.
38. However, although neither Dr Nixon nor Dr Lucre refer specifically to the particular call, the certificates they issued tend to support Ms Hart’s claim, and Mr Gross and Dr Mason (and others later) refer specifically to an abusive call. Although it was some time before Ms Hart sought medical treatment, we do not think that weighs heavily against her. We accept her evidence that she kept working until she felt she could no longer cope.
39. On balance, considering all of the evidence, we are satisfied that the call happened as Ms Hart describes it.
Was Ms Hart’s injury the result of reasonable administrative action
40. It is not in dispute that Ms Hart suffered an “aggravation of adjustment reaction with mixed emotional features” or major depression (or a similar description of her condition) in 2009. Medical evidence from her treating doctors, as well as examinations for the purposes of these proceedings, support that conclusion.
41. At the time of the phone call, Ms Hart was subject to a process which had commenced in December 2008 aimed at improving her performance. Comcare contends the process constituted reasonable administrative action taken in a reasonable manner and contributed significantly to her psychological condition. For convenience, we refer to the process overall as the performance management process.
The Back on Track plan
42. Ms Hart was on leave from late October until 14 December 2008. She had planned to return to work in 3 December 2008 after a trip to Brazil but, on returning to Australia, she learned that her father-in-law had died the previous day. She returned to work on 15 December 2008.
43. On 18 December 2008, Ms Hart was asked to attend a meeting with Mr Barry Cake, service delivery manager, and Ms Boulter. Mr Kumar attended to support her. At this meeting, she was told she was to be placed on a Back on Track (BOT) plan for three months.
44. According to the CSA Collective Agreement, a BOT plan “is used to assist the supervisor and the employee in their efforts to return the employee’s performance to a satisfactory level”. The period of a plan is normally three months but can be shorter for cases of serious underperformance. Because Ms Hart had taken more than 26 days unplanned leave days in the year, it was CSA policy that a BOT plan be instituted.
45. There is some dispute about the purpose of the meeting on 18 December 2008 and the BOT plan. Ms Hart says it was to discuss her unplanned leave and she felt annoyed about this because a BOT plan was supposed to be about performance, and her unplanned leave was due to sinus problems caused by problems with the air-conditioning at work which had not been resolved.
46. There is evidence that there had been problems with the air-conditioning and that Ms Hart’s sinus problems were related to it. She agrees the CSA was trying to resolve the air-conditioning problems.
47. However, although the cover sheet of the BOT plan shows that the “issue identified as discussed” was “unplanned leave”, it is clear that the BOT process was not about Ms Hart’s unplanned leave in isolation for her performance. The stated goals of the plan were to reduce her unplanned leave; increase the quantity of her work as a result of improved attendance; consistently achieve individual benchmarks; complete “in-trays” within specified times and to the required standard; and consistently adhere to phone shifts in accordance with schedules.
48. We accept the evidence of Ms Boulter that the amount of leave Ms Hart had taken meant she was not meeting the requirements of her job; it was affecting the time it was taking her to complete her work and her achievement of monthly benchmarks. In evidence, Ms Hart conceded that there had also been discussion about her arriving on time, and it is also clear that her sinus problems accounted for only about 60 per cent of her leave.
Request to transfer
49. On 9 January 2009, the CSA invited staff to express interest in transfers within the organisation. Ms Hart was interested. She did not formally respond but she spoke to Mr Erson-Smyth, the operations manager.
50. There is some dispute about this conversation. Mr Erson-Smyth gave evidence that any electronic notes were deleted when the CSA moved offices but he recalls talking to Ms Hart. She told him she enjoyed her work but she struggled to keep to her roster because of her poor time-keeping skills, and her preference was to move to the Incoming Mail Receipting Team where there were no schedules and she would not have to take calls. He recalls telling her she needed to work on this and offering suggestions for improving. In particular, she said she did not wear a watch and he suggested she do so. Mr Erson-Smyth was emphatic that his recollection on this point was accurate because it was an obvious suggestion to make when discussing poor time-keeping skills.
51. Ms Hart denies this exchange about her watch and her time-keeping skills. She says she always wears her watch, although she agrees she did not use it at work specifically to time her calls.
52. Ms Denise Tyler, the CSA Human Resources manager, has provided a written statement. She says she knew of concerns about Ms Hart’s performance and that Mr Erson-Smyth had told her she needed to develop her time-keeping skills. She knew that Ms Hart was undergoing a performance management process, which meant she was not eligible for mobility in January 2009.
53. Both Ms Hart and Mr Erson-Smyth struck us as truthful witnesses. It is possible both are partly correct. The specificity of Mr Erson-Smyth’s recollection suggests that his may be the more accurate but, in the end little turns on this. If Ms Hart is mistaken, we do not think it reflects seriously on her credibility.
In the end, nothing came of Ms Hart’s request because there were no vacancies in the mail team at the time.
The Performance Improvement plan
54. The CSA Collective Agreement provides that, where the BOT plan does not lead to an acceptable improvement in performance, a period of “formal counselling and assistance to improve performance” is to be instituted. On 31 March 2009, when she had failed to meet the aims of the BOT plan, an eight-week Performance Improvement (PI) plan was instituted.
55. The PI plan shows that the “underperformance issue identified as discussed” was “attendance”. Its goals and strategies were similar to those of the BOT plan but rather more specific and practical.
56. Both the BOT and the PI plan document regular meetings to review Ms Hart’s progress. They show what, at best, could be described as patchy improvement.
Was the process reasonable administrative action undertaken in a reasonable manner
57. It was submitted for Ms Hart that the performance management process was not reasonable administrative action and nor was it undertaken in a reasonable manner, primarily because it sought to deal with what was essentially a medical problem.
58. We do not agree. We are satisfied that it amounted to a reasonable appraisal of Ms Hart’s performance. We accept that a significant part of her unplanned leave was caused by her sinus problems, but the detailed BOT and PI plans show that concerns about her performance went beyond just her attendance, and nothing in the evidence supports the conclusion that it was not undertaken in a reasonable manner.
Did the performance management process contribute significantly to the development of Ms Hart’s condition?
59. Ms Hart maintains that she was not overly concerned about the performance management process. She admits to being annoyed and frustrated when the BOT plan was instituted because, in her view, it was not the correct procedure for dealing with sick leave and she thought it “unjust” when her poor attendance was due to the still unresolved air-conditioning problems. She thought it unfair that she failed the BOT plan when her attendance had not improved due to the still-unresolved problems with the air-conditioning, and it was unfair to then be placed on the PI plan.
60. Despite her concerns, Ms Hart claims the process did not cause her any emotional distress. She says she understood it to be aimed at improvement rather than discipline, and that things would improve by the end of it. She denies the process was causing her any problems in April 2009, and she denies any psychological or psychiatric problems prior to the call.
61. Ms Hart claims she found the performance process constructive and supportive, and her performance improved. She found her regular meetings with Ms Boulter useful and never had any disagreement with the feedback. She found feedback from her supervisors was always given constructively; she regarded it positively. No one was unpleasant to her as a result of being on the program, and she had no bad experiences with any supervisors. She recognised Ms Boulter was obliged to follow agency policy and procedures. Some of what Ms Boulter wrote annoyed her but she was very helpful and understood that Ms Hart was sick.
62. At the end of the BOT period, Ms Hart had the option to sign the Plan. She declined because she still did not believe it was the correct procedure for dealing with sick leave when the air-conditioning problem and her sinus problem remained unresolved. She says there was no pressure to sign and no conflict with Ms Boulter about her decision. This may have been in keeping with the informal nature of the BOT process but, in any event, there is no evidence to suggest it was a problem.
63. Ms Hart did not sign the PI plan at the beginning of the period for the same reason. It went on hold after she went off work in April 2009 and was apparently not reinstated after she returned and was not taking calls anymore, so there was no need to sign it.
64. Despite Ms Hart’s claims, we are of the view that she has minimised how she felt about the performance management process. By way of background, Ms Boulter gave evidence that there Ms Hart’s attitude changed after she returned to work in December 2008; she was distressed about the death of her father-in-law and she felt her loss was not sufficiently acknowledged by the CSA.
65. On 9 January 2009, Ms Hart sent an email to Ms Boulter saying “I received my first really bad telephone audit from Carly Fitzpatrick” and would be making an official complaint. She says it was not the fact of the audit but that Ms Fitzpatrick talked about it in the open office. She spoke to Ms Fitzpatrick, the matter was resolved and she did not take it further. Nevertheless, Ms Hart clearly felt upset enough to consider an official complaint.
66. In February 2009, Ms Hart complained that she was being “bullied” to attend the regular BOT meeting with an acting supervisor while Ms Boulter was on leave. Ms Hart spoke to the union delegate who took the matter up with management. The meeting did not go ahead and regular meetings resumed the following week after Ms Boulter returned.
67. In his report dated 1 May 2009, Mr Gross, stated that Ms Hart’s statements to him had a “similar tone and content [to when he saw her in 2005] where she felt that management was unsupportive, unsympathetic and had increased pressure on her at times when she had been asking for support”. In his report dated 29 June 2009, he wrote that, on her return from Brazil, “she was placed on performance review because of her excess leave. This left Victoria feeling frustrated and angry with management – she perceived this as harassment and uncalled for.”
68. Dr Lucre certified Ms Hart fit for suitable duties for reduced hours from 14 May 2009 and specified that she was not to answer telephone calls or attend meetings.
Ms Boulter’s evidence
69. Although she said Ms Hart’s attitude changed after she returned to work in December 2008, Ms Boulter gave evidence that she did not notice any other change in her behaviour or her application to her work. She said there was no difficulty between her and Ms Hart throughout the performance management process. She knew that Ms Hart did not agree with being subjected to the process because she said as much, but she cooperated.
70. Ms Boulter was asked how Ms Hart responded to the meetings about the BOT plan. She said they met quite frequently and would go through Ms Hart’s work and some of the cases that had been audited; Ms Hart responded well, including to information and advice given by the technical officers. There were ‘still some performance issues to be worked on” but, at the end of the performance improvement process, she “definitely showed improvement”.
Dr Mason’s report
71. Dr Wayne Mason, a psychiatrist, saw Ms Hart on 19 June 2009 for a Fitness for Continued Duty Assessment arranged by the respondent. He submitted a report dated 25 June 2009. He, too, diagnosed “adjustment disorder with anxiety and depressed mood” directly resulting for her work, in particular from the particularly abusive phone call and to what she saw as the lack of support for her at work and the criticism about her attendance.
Dr Synnott’s evidence
72. Dr Inglis Synnott, psychiatrist, saw Ms Hart in September 2009 at the request of the respondent. He thought she had residual psychological symptoms but not of an intensity that warranted a diagnosis of a psychiatric condition. He diagnosed her as suffering from adjustment disorder because her condition was in response to an identifiable stressor (the phone call) but says another practitioner might just as validly diagnose depression. He noted her symptoms were similar to what she had experienced in 2005. He thought she had residual symptoms from 2005 and remained vulnerable in 2009.
73. Dr Synnott’s diagnosis was based on the history he obtained from Ms Hart about the cause of her distress. She told him that her symptoms were due to the abusive phone call and the response of her team leader. He thought her condition was due to “the totality of her situation”: she was upset at the call and felt let down by her team leader. Ms Hart told him that, since Ms Boulter’s arrival in late 2008, she had not been very supportive, and this was another example.
74. Dr Synnott saw Ms Hart again in January 2011, when he noted a “significant improvement” in her psychological state overall.
75. We have some difficulty with Dr Synnott’s evidence. The letter of instruction from the respondent’s solicitors specifically put to Dr Synnott that factors other than the phone call had contributed to Ms Hart’s condition and asked his opinion. Prior to seeing Ms Hart for the second time, he was provided with documents including witness statements, and he was aware that she was undergoing a performance management process. He noted in his second report that statements from Ms Boulter, Mr Erson-Smyth and Ms Tyler were “not congruent with the picture portrayed by Ms Hart – regarding her claims about the work place” but he did not elaborate, either in his report or before the Tribunal.
Dr Akkerman’s evidence
76. Dr Klass Akerman saw Ms Hart in January 2011 at the request of her solicitors. She told him about the phone call. He thought she had suffered major depression in 2009, rather than adjustment disorder, because of the severity of her symptoms, and was incapacitated between April and October 2009. He also thought she had recovered by January 2011.
77. Like Dr Synnott, Dr Akkerman relied on the history Ms Hart gave him of her condition. He agreed that patients can be selective, and might disclose only one cause when in fact there were multiple causes for a condition. However, he thought it very difficult to feign a psychiatric diagnosis or for there to be an alternative cause present and be able to present a case in an internally consistent manner.
Consideration
78. As set out above, we have concluded that Ms Hart has attempted to minimise the extent to which the performance management process annoyed and frustrated her. She had contemplated seeking review of the process and Mr Gross’s report, which is not challenged, shows that she was feeling angry and unsupported.
79. On the other hand, Ms Boulter’s evidence is that they got on well, and Ms Hart cooperated in the process and definitely showed improvement. Her evidence tends to support Ms Hart’s claim that she did not find the process distressing. If Ms Hart had been as distressed or as angry at the process as Mr Gross suggests, we would expect to see that reflected in Ms Boulter’s oral evidence but it was not.
80. The performance management process clearly formed the backdrop to Ms Hart’s reaction to the telephone call but, for her claim to be excluded, we must be satisfied that the process contributed to her psychological condition significantly, that is, substantially more than materially.
81. Dr Mason refers to “criticism about her attendance” as a factor in Ms Hart’s adjustment disorder but does not go further. Dr Synnott was specifically asked about the contribution of the process to her condition but he did not say that it played a significant part. While he thought her condition was due to “the totality of her situation”, he does not identify the performance management process as a significant contributing factor. Dr Akkerman’s evidence does not support that conclusion.
82. The respondent suggests that Ms Hart deliberately omitted to tell the Dr Synnott and Dr Akkerman about the performance management process. Dr Akkerman thought that a possibility but not probable.
83. Taking all of the evidence into account, we are satisfied that the performance management process contributed to Ms Hart’s condition but we are not satisfied, on the evidence before us, that it contributed significantly.
84. We set aside the decision under review and decide instead that Ms Hart suffered an injury within the meaning of the Act and is entitled to compensation.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr Tony Austin AM
Signed: ....................[sgd]............................................................
Diana Weston, AssociateDates of Hearing 6, 7 and 8 June 2011
Date of Decision 30 August 2011
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Ms K Stouppos, Slater & Gordon Lawyers
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Ms D Shiells, Dibbs Barker
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