Haskins and Comcare (Compensation)

[2017] AATA 8

Haskins and Comcare (Compensation) [2017] AATA 8 (10 January 2017)

Division:GENERAL DIVISION

File Number:           2015/3082

Janine Haskins

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr James Popple, Senior Member

Date:10 January 2017

Place:Canberra

Comcare’s decision on 27 May 2015 is affirmed.

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

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — Applicant suffered psychological condition as result of counselling session — whether counselling session was reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment — decision under review affirmed.

LEGISLATION

Public Sector Management Act 1994 (ACT), s 9

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14

CASES

Comcare v Martinez (No 2) (2013) 212 FCR 272

Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare (2012) 128 ALD 1

Hart v Comcare (2005) 145 FCR 29

REASONS FOR DECISION

Dr James Popple, Senior Member

Summary

1. The applicant worked for the Office of the Director of Public Prosecutions for the Australian Capital Territory (the ACT DPP).[1] She had a meeting with the Director and two other people who also worked at the ACT DPP. At that meeting, the applicant was counselled about what the Director called her unprofessional conduct. Comcare concedes that the applicant suffered a psychological condition as a result of that counselling session, and that her condition is a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

   [1] As explained at [11] below, Mr Jon White is the Director of Public Prosecutions for the Australian Capital Territory. In these reasons for decision, I refer to him as the Director of Public Prosecutions, the Director or Mr White, and I refer to his Office as the ACT DPP.

2. However, the counselling session—and what the Director and another person did at the counselling session—was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.

   Background

3. Ms Janine Haskins worked for the ACT DPP. On 5 January 2015, she made a claim for compensation for “generalised anxiety disorder”. On 30 March 2015, Comcare denied that it was liable to pay her compensation under s 14 of the SRC Act.

4. On 1 May 2015, Ms Haskins requested a reconsideration of that determination.  On 27 May 2015, Comcare affirmed its determination.

5. On 23 June 2015, Ms Haskins applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

   Decision under review

6. The decision under review is Comcare’s decision on 27 May 2015 to affirm its determination that Comcare is not liable to pay compensation to Ms Haskins.

   Issue

7. Comcare concedes that Ms Haskins suffered a psychological condition which was contributed to, to a significant degree, by her employment by the ACT DPP. That means that her condition is a “disease” as defined in s 5B of the SRC Act.

8. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.

9. The issue in this review is whether Ms Haskins’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14.

10. This review turns on what happened at a meeting held at the ACT DPP on 7 August 2014 (the counselling session).  Ms Haskins says that the counselling session caused her condition.  Comcare accepts that the counselling session was at least one cause of Ms Haskins’s condition.[2] If the counselling session was reasonable administrative action taken in a reasonable manner, the exclusion in s 5A of the SRC Act applies even if the counselling session was only one of several causes of Ms Haskins’s condition.[3]

    [2] Comcare identifies two other possible causes: the Director’s 27 June 2014 letter to Ms Haskins, advising her that he had received a complaint (see [15] below); and the interview that Ms Haskins had with Mr Fernandez on 15 July 2014 (see [17]). Comcare says that each of these (like the counselling session) was reasonable administrative action taken in a reasonable manner.

    [3]     Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at 472 [24] per Gray J, citing Hart v Comcare (2005) 145 FCR 29 at 33 [21]–[23] per Branson, Conti and Allsop JJ. See also Drenth v Comcare (2012) 128 ALD 1 at 7 [29] per Rares, McKerracher and Murphy JJ.

    People involved

11. Four people were present at the counselling session:

    ·Ms Haskins;

    ·Mr Jon White SC, the Director of Public Prosecutions—head of the ACT DPP;

    ·Ms Emma Flukes,[4] the director of corporate services and human resources at the ACT DPP;

    ·Ms Lisa Boyd,[5] an employee of the ACT DPP supervised by Ms Haskins.

    All four provided statements, and gave evidence at the hearing.  Another person was involved in events relevant to this review:

    ·Mr Mark Fernandez, an employee of the ACT DPP.

    Mr Fernandez did not provide a statement or give evidence at the hearing.

    [4]     Ms Flukes was known by a different name at the time.

    [5]     Ms Boyd was known by a different name at the time.

    Before the counselling session

12. I make the findings set out in [13]–[19] below, on the balance of probabilities. These findings are based on the evidence before me, especially statements made by the people listed at [11] above, and evidence that they gave at the hearing. These findings are generally not contested.

13. On 10 June 2014, Mr White received a written complaint (the complaint) from a member of the public (the complainant).  The complainant claimed that an employee of the ACT DPP had behaved inappropriately in the course of their employment.[6]  The complaint did not name the employee.  Mr White asked Ms Flukes to ascertain whom the complaint was about.

    [6]     At the request of Ms Haskins and of Comcare, I have not included, in these reasons for decision, detail of the allegations made in the complaint.

14. On 25 June, Ms Flukes met with Ms Haskins to discuss the complaint, and to seek her assistance in identifying the person complained about.  Ms Haskins identified herself as that person.  The next day, Ms Flukes told Mr White that the complaint was about Ms Haskins.

15. On 27 June, Mr White wrote a letter to Ms Haskins.  He told her that he had received a complaint that she had “behaved in an unprofessional manner” towards a named person.  He said:

    Of course, at this point, no judgement has been made as to the truth or otherwise of the allegation.  However, if the allegation is proven, this may constitute misconduct under Justice and Community Safety Enterprise Agreement 2011–2013 [the Enterprise Agreement] …

    He quoted from s 9 of the Public Sector Management Act 1994 (ACT) which is about the general obligations of “public employees”.  He continued:

    I am obliged to take all such allegations seriously.  To this end I will direct that an initial “evidence gathering process” be undertaken before considering whether further action is necessary and if so, what that action should be.  As I say, at this point, no judgement has been made as to the truth or otherwise of the allegations.

    I have appointed Mark Fernandez to conduct the evidence gathering process.  I anticipate he will contact you shortly.  Once he has completed that process he will report to me and I will consider what if any action I should take.

    The evidence gathering process and any subsequent action will be conducted in a manner consistent with the discipline procedures set out in the [Enterprise] Agreement …

    You will be given an opportunity to respond to the allegations orally or in writing in the course of the evidence gathering process and/or in the course of any formal investigation that may subsequently be conducted.

    …

    The letter attached extracts from the Enterprise Agreement and from the Public Sector Management Act.

16. Also on 27 June, Mr White wrote a memo to Mr Fernandez asking him to conduct the evidence gathering process.  The expression “evidence gathering process” is used in the Enterprise Agreement, which applied to the ACT DPP and its employees.  Section H5 of the Enterprise Agreement is about allegations of misconduct.  Clause H5.4 provides:

    If, after conducting the evidence gathering process, the head of service is of the opinion that the alleged misconduct has occurred but the matter is likely to be resolved informally, the manager/supervisor will discuss the particular behaviour with the employee as soon as possible.  The discussion will set out clear expectations of future behaviour and that a recurrence could lead to discipline [sic] action.  A record of this discussion will be retained.  The head of service may also choose to organise mediation between relevant persons.

    (Mr White was a delegate of the head of service—that is, the head of the ACT public service.)

17. Mr Fernandez undertook some inquiries, including interviewing Ms Haskins on 3 and 15 July.  On 16 July he provided a report to Mr White.  On 17 July, Mr White e-mailed Mr Fernandez, asking him to confirm one aspect of what he had reported.  On 1 August, Mr Fernandez provided a further report to Mr White.  In summary, Mr Fernandez reported that Ms Haskins had admitted to some of the behaviour that the complainant alleged, but not all of it.  He also reported that Ms Haskins had told him that she felt that she had done nothing wrong.

18. Having read Mr Fernandez’s reports, Mr White came to the view that Ms Haskins had engaged in misconduct but that the matter was likely to be resolved informally.  On 4 August, he prepared a memo setting out his decision, and asked Ms Flukes to arrange the counselling session.

19. On 5 August, Ms Flukes e-mailed Ms Haskins to schedule the counselling session for 7 August.  She told Ms Haskins that she could bring a support person if she wished.  Ms Haskins asked Ms Boyd to attend the counselling session as her support person.

    The counselling session

20. The four participants have each given their account of what happened at the counselling session.  The accounts of Mr White, Ms Flukes and Ms Boyd are generally consistent.  Ms Haskins’s account differs in some significant respects.  I make the findings set out in [21]–[23] below, on the balance of probabilities.  These findings are generally consistent with the accounts of all four participants.

21. The counselling session took place at 9:00 am on 7 August 2014.  It lasted between 10 and 25 minutes.[7]  Mr White chaired the counselling session.  He mostly read from the memo he had prepared.  He did most of the talking.  Ms Haskins also spoke.  Ms Flukes and Ms Boyd said little, or nothing, during the counselling session.

    [7]     Ms Flukes’s record of the counselling session (see [38] below) gives the finish time of the session as “9:25 (approx.)” on the first page, and as “approx 9:10 am” on the last page.  At the hearing, none of the four participants was sure about the length of the counselling session.  Nothing turns on this.  No-one contends that the counselling session was unreasonably short or unreasonably long.

22. Mr White told Ms Haskins that the purpose of the counselling session was to discuss her behaviour, and he read out clause H5.4 of the Enterprise Agreement (quoted above).[8]  He told Ms Haskins that, in his view, the conduct to which she had admitted amounted to misconduct: that it was conduct that had brought, or was likely to bring, the ACT DPP into disrepute.  He said that he thought that the matter was likely to be resolved informally in accordance with clause H5.4.  He said that he accepted Ms Haskins’s denial of some of the behaviour alleged in the complaint.  However, he said that, even on Ms Haskins’s version of events, her conduct was unprofessional and showed a lack of judgment.  He said that he was concerned by Mr Fernandez’s report that Ms Haskins had said that she had done nothing wrong.  He told Ms Haskins that a record of the counselling session would be placed on her personnel file.  He warned her that a recurrence of her behaviour could lead to formal disciplinary action.

    [8] See [16] above.

23. Mr White asked Ms Haskins whether she had anything to say.  She apologised for her behaviour and acknowledged that she had done the wrong thing.  Mr White accepted her apology.  Ms Haskins also said that, in her view, Ms Boyd should have been interviewed by Mr Fernandez as part of the evidence gathering process.

24. Ms Haskins asserts that, during the counselling session, Mr White raised his voice and swore at her.  She says that Mr White “repeatedly told [her] how ‘fucking unprofessional’ [her] conduct had been”.  She says that he “verbally abus[ed]” her in a “barrage” that “went on and on—it seemed like forever”.

25. Mr White denies this.  He says that he did not raise his voice or swear, or otherwise behave aggressively.  Ms Flukes and Ms Boyd each support Mr White’s account.  Ms Flukes says that the counselling session “did not unfold in the manner alleged by [Ms Haskins]”.  She says that Mr White’s behaviour during the counselling session was “highly professional and appropriate at all times”.  Similarly, Ms Boyd says that she has “no memory of Mr White raising his voice or swearing at [Ms Haskins] at any time during the [counselling session]”.  She says that Mr White’s demeanour during the counselling session was “more serious than usual, but he remained calm and professional throughout”.  Ms Boyd points out that, immediately after the counselling session and at Ms Haskins’s request, she made a diary note of what had happened during the session.  There is no reference in that diary note to Mr White raising his voice or swearing.  Ms Boyd showed Ms Haskins the diary note soon after she had prepared it, and Ms Haskins asked her to make one amendment.[9]  Ms Haskins did not ask Ms Boyd to add any reference to Mr White raising his voice or swearing.

    [9] The amendment related to Ms Flukes giving Ms Haskins and Ms Boyd “dirty looks”: see [27] below.

26. I find, on the balance of probabilities, that Mr White behaved appropriately and professionally throughout the counselling session: that he did not raise his voice or swear at Ms Haskins.  In making that finding, I note that only Ms Haskins says that Mr White behaved inappropriately at the counselling session, and that each of the other three attendees says that he behaved appropriately.  I also note that, had Mr White used the language that Ms Haskins says he used—even once, let alone in a “barrage”—it is highly likely that Ms Flukes or Ms Boyd would have recalled him having done so.

27. There are two other notable differences between the various accounts of the counselling session:

    ·Ms Haskins and Ms Boyd say that Ms Haskins alleged that Ms Flukes had breached her confidentiality during the evidence gathering process, but that Mr White dismissed this as a “red herring”.  Mr White and Ms Flukes say that the issue was not raised.

    ·Ms Haskins and Ms Boyd say that, towards the end of the counselling session, Ms Haskins asked Ms Flukes “are you OK, because you’ve been giving dirty looks to me and [Ms Boyd]”.[10]  Mr White and Ms Flukes do not recall this happening.

    [10]    Ms Boyd says that she was not watching Ms Flukes, and did not notice her giving anyone any “dirty looks”, though she does recall Ms Haskins raising the issue during the counselling session.

28. I make no findings about which of these accounts is more accurate.  For reasons explained below,[11] even if I were to find that Ms Haskins and Ms Boyd are correct about both of these issues, that would not affect my conclusion about whether the counselling session was reasonable administrative action taken in a reasonable manner.

    [11] See [37] below.

    Ms Haskins’s evidence

29. Ms Haskins sought to bring evidence about events that occurred after the counselling session: about what Ms Haskins had told others about the counselling session; about the extent to which the counselling session affected her; and about later actions of the ACT DPP, which she says were bullying and harassment.  I refused to let her bring this evidence, on the basis that that it was not relevant to the issue in this review: whether the counselling session was reasonable administrative action taken in a reasonable manner.

30. From the medical evidence before me, there is no doubt that Ms Haskins was affected by the counselling session.  I think that her condition is outside the boundaries of normal mental functioning and behaviour.[12]  As noted above, Comcare concedes that Ms Haskins’s psychological condition was contributed to, to a significant degree, by her employment by the ACT DPP—specifically by the counselling session.

    [12]    See Comcare v Mooi (1996) 69 FCR 439 at 444 per Drummond J. Comcare had previously argued that Ms Haskins’s condition was not outside the boundaries of normal mental functioning and behaviour. At the hearing, Comcare said that it no longer argues that.

31. In preferring the evidence of Mr White, Ms Flukes and Ms Boyd to the evidence of Ms Haskins, I do not mean to suggest that Ms Haskins is lying.  I believe that she perceived the counselling session in the way that she has described it.  However, her recollection of the counselling session is very different to that of the other attendees.

    Was the counselling session reasonable administrative action taken in a reasonable manner?

32. In my opinion, it was reasonable for Mr White to decide to conduct the counselling session.  Given the nature of the complaint, Mr White was obliged to treat it seriously.  He arranged for Mr Fernandez to undertake an “evidence gathering process”.  Ms Haskins admitted to some of the conduct complained of, but not all of it.  Mr White came to the view that the conduct that Ms Haskins had admitted to was misconduct.  That was clearly a reasonable view to come to, and I note that Ms Haskins concedes that she did the wrong thing.

33. Mr White had a number of options at that point.  Given Ms Haskins’s admissions, he was obliged to take some action.  Mr White chose the option that could be characterised as the least disadvantageous to Ms Haskins: he decided that the matter was likely to be resolved informally.  It was open to him to invoke other processes that are set out in section H of the Certified Agreement, which could have resulted in suspension, reassignment or even termination of employment.  I do not say that it would have been reasonable for Mr White to have invoked any of these other processes in this case.  But I think it was reasonable that he invoked the process set out in clause H5.4 of the Certified Agreement and arranged to discuss Ms Haskins’s behaviour with her as soon as possible.

34. Ms Haskins says that the evidence gathering process was flawed.  She says (as she said at the counselling session[13]) that Mr Fernandez should have interviewed Ms Boyd.  This argument arises from Ms Haskins’s assertion that her conduct was affected by something that her supervisor had said to her, and that Ms Boyd was in a position to have provided more information about this issue.  Mr White said that he was satisfied with the evidence that Ms Haskins’s supervisor gave to Mr Fernandez on this issue.  But, importantly, Mr White made it clear at the counselling session that he had come to his view about Ms Haskins’s conduct on the basis of her admissions—he had not taken into account the disputed aspects of the complaint.  As I have already said, I think it was reasonable for him to have done so.  Accordingly, the fact that Mr Fernandez did not interview Ms Boyd does not affect the reasonableness of Mr White’s decision to conduct the counselling session.

    [13] See [23] above.

1. Ms Haskins also says that she was at a disadvantage at the counselling session because she had not been shown the complaint.  Mr White says that Ms Haskins was not shown the complaint in order to protect the privacy of the complainant.  However, Ms Haskins was aware (from her interviews with Mr Fernandez) of the detail of the complaint against her.  I do not think that it was unreasonable for Mr White to conduct the counselling session in those circumstances.

2. Not only was the counselling session reasonable administrative action, it was conducted in a reasonable manner.  I have already found that Mr White behaved appropriately and professionally.  There is nothing about the conduct of the counselling session, or the behaviour of Mr White or Ms Flukes, that was unreasonable.

3. As noted above,[14] Ms Haskins says that, at the counselling session, she raised two issues: that Ms Flukes had breached Ms Haskins’s confidentiality during the evidence gathering process; and that Ms Flukes had given Ms Haskins and Ms Boyd “dirty looks” during the session.  I have made no findings about these issues.  But, even if I had found that Ms Haskins is correct about either or both of these issues, that would not have made the conduct of the counselling session unreasonable.  A breach of Ms Haskins’s confidentiality during the evidence gathering process might, in itself, amount to misconduct.  But that would not have been relevant to the conduct—Ms Haskins’s conduct, before the evidence gathering process—discussed at the counselling session.  And, if Ms Flukes gave Ms Haskins and Ms Boyd “dirty looks” during the counselling session, that would have been rude and possibly unprofessional.  But I do not think that it would have made the conduct of the session unreasonable.  And, even if the counselling session could have been conducted more reasonably, that does not make it unreasonable.[15]

   [14] See [27]–[28] above.

   [15]    Comcare v Martinez (No 2) (2013) 212 FCR 272 at 293 [82] per Robertson J.

4. At the counselling session, Mr White told Ms Haskins that a record of the session (the record) would be placed on her personnel file.  After the counselling session, Ms Flukes prepared the record and it was placed on Ms Haskins’s personnel file.  Ms Haskins was not given a copy of the record.  At the hearing, Ms Flukes said that Ms Haskins would have been given a copy if she had asked for one.  Ms Haskins was also not given an opportunity to comment on the record.  Given the seriousness of the information in the record, I think that the ACT DPP should have given Ms Haskins a copy of the record, and the opportunity to comment on its accuracy.  But, even if the ACT DPP behaved unreasonably in not doing so, that does not affect the reasonableness of the counselling session.

5. The counselling session was reasonable administrative action taken in a reasonable manner.

   Conclusion

6. The counselling session was a cause of Ms Haskins’s disease. The counselling session was reasonable administrative action taken in a reasonable manner in respect of her employment. Accordingly, her disease is excluded from the definition of “injury” in s 5A of the SRC Act. Comcare is not liable to pay her compensation.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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

Associate

Dated: 10 January 2017

Dates of hearing:	21–22 November 2016
Applicant:	In person
Counsel for the Respondent:	Ms Kristy Katavic
Solicitors for the Respondent:	Sparke Helmore, Lawyers