Indra Thappa and Comcare
[2013] AATA 629
[2013] AATA 629
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1668
Re
Indra Thappa
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 3 September 2013 Place Canberra The decision under review is affirmed.
.................[sgd]...........................................
Mr S. Webb, Member
WORKERS’ COMPENSATION – psychological injury claim – significant employment contribution – disease – reasonable administrative action – undertaken in a reasonable manner -
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Hart v Comcare [2005] FCAFC 16
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21REASONS FOR DECISION
Mr S. Webb, Member
3 September 2013
Indra Thappa is employed by the Australian Agency for International Development (AusAID), an agency of the Commonwealth. He claimed compensation in respect of an injury. Comcare rejected the claim by primary determination and on reconsideration. Mr Thappa applied for review. His application was not progressed within a reasonable time, and it was dismissed. Subsequently, Mr Thappa made a fresh application for review, out of time. The Tribunal granted an extension of time, permitting the application commencing these proceedings.
At the outset of the hearing, I was informed that Comcare accepts that Mr Thappa suffered an ailment in the form of an Adjustment Disorder with features of anxiety and depression to which his employment contributed to a significant degree, meeting the description of a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The issue in dispute to be determined is whether Mr Thappa’s disease meets the test of an ‘injury’ under s 5A of the Act. It cannot do so, and Mr Thappa’s claim must fail, if the disease resulted from ‘reasonable administrative action undertaken in a reasonable manner’ in respect of Mr Thappa’s employment. Conversely, if the disease meets the test of an ‘injury’, it is necessary to determine the date of the injury, applying s 7(4) of the Act.
The brief facts follow.
In 2008, Mr Thappa was employed in AusAID’s Program, Quality and Review section (the PQR section) of the Papua New Guinea Branch at the APS 6 level. I note that he acted in higher duties from May to July 2008.
In September 2008, Mr Thappa and the (then) Director of the PQR section, Michelle Lowe, were involved in a mission to evaluate an AusAID program in Papua New Guinea – the Gazelle Roads East New Britain Project. Issues arose in respect of Mr Thappa’s conduct when dealing with a consultant to the mission, Ian Scales (an academic expert), about which Mr Thappa and Ms Lowe have differing views. Mr Thappa maintains that the consultant made a racist remark[1] and that his contract was not being complied with or managed in a manner that conformed to the National Procurement Guidelines of the Commonwealth[2]. Ms Lowe says that Mr Thappa behaved inappropriately, raising his voice aggressively and making derogatory remarks about AusAID personnel, in an exchange with Mr Scales that she witnessed. These matters were discussed in a subsequent meeting between Mr Thappa and Ms Lowe on or about 23 September 2008, on Mr Thappa’s return to Australia.
[1] See Exhibit 7, Attachment 2 and Exhibit 4, Statement of Michelle Lowe, 30 October 2012, Attachment 5, for example.
[2] See Exhibit 1, Attachment 1, Attachment A
It appears that Mr Thappa’s direct supervisor, Janet Donnelly, Manager of the PQR Evaluations and Reviews, who was then newly appointed to that role, was made aware of the alleged misconduct and sought advice about strategies to manage Mr Thappa’s performance[3]. It appears that issues relating to Mr Thappa’s performance in the Gazelle Roads East New Britain project evaluation had previously been identified, causing him to be rated as ‘ineffective’ in this aspect of his 2007-2008 Performance Planning and Review assessment (he was otherwise rated as ‘effective’ or ‘adequate’)[4].
[3] Exhibit 7, Attachments 1 and 4, for example.
[4] Exhibit 1, Attachment 3a.
On 9 October 2008, Ms Lowe sent an email to Mr Thappa, addressing the alleged misconduct and outlining the responsibility of Australian Public Service (APS) officers to adhere to the APS Code of Conduct[5]. Mr Thappa responded to Ms Lowe’s email on 15 October 2009, setting out his understanding of his role in the mission, his concerns about Mr Scales’ conduct, and his intention to resign from the evaluation mission[6]. On 17 October 2008, Ms Lowe responded to Mr Thappa’s email and accepted his resignation from the evaluation.
[5] T19 folio 114.
[6] Applicant’s Statement of Facts, Contentions and Issues, 16 April 2013, page 7.
From 25 November 2008 to 12 January 2009, Mr Thappa was absent on leave. It appears that he travelled to India in order to visit relatives and to obtain dental treatment. Mr Thappa applied for leave approval on the basis that part of the period of absence would be personal leave, to be covered by a medical certificate on his return. It appears that Ms Donnelly required the medical certificate before authorising the leave of absence. Mr Thappa disputed this requirement, but he appears to have obtained a medical certificate from his treating general practitioner, Dr Sue Williams, covering the entire period of anticipated absence. It was on the basis of this medical certificate that leave authorisation was granted. This notwithstanding, evidence subsequently provided by Dr Williams does not establish that Mr Thappa was unwell, or unfit for work, for the entire period of his absence from work.
In a Minute dated 9 December 2008, Ms Donnelly recommended that Mr Thappa be assigned to another position and that an additional officer be assigned to the evaluation team[7]. Ms Lowe and Margaret Callan, Assistant Director-General of the PNG Branch, recorded their responses on the Minute:
(a)Ms Lowe noted that replacing Mr Thappa would be difficult, due to resourcing constraints, and proposed to -
“1. Remove Indra from managing evaluations.
2. Find an alternative workplan for Indra that consists of lower priority and risk tasks to enable the space for training & coaching as required.
…”
(b)Ms Callan agreed “to assign Indra to discrete, monitorable tasks during performance management process as per the CA [Certified Agreement]".
[7] Exhibit 4, Statement of Michelle Lowe, 30 October 2012, Attachment 5.
Mr Thappa returned from leave on 13 January 2009. It appears that he was assigned tasks within the PRQ Evaluation Team before Ms Donnelly departed on leave. She returned to work on 2 February 2009. On or about 3 February 2009 and subsequently, Ms Donnelly met with Mr Thappa and discussed his assigned tasks and queries about information recorded in his time sheets – so called ‘flex-sheets’.
It appears on Ms Lowe’s evidence that, on or about 6 February 2009, Ms Donnelly ‘broke down’, complaining that she was feeling bullied by Mr Thappa.
On 9 February 2009, Ms Donnelly informed Mr Thappa that he would be required to attend a mid-term performance plan review with her that afternoon. It appears that Mr Thappa, as with other AusAID employees, was subject to an annual performance agreement that commenced in July and was due for mid-term review by the end of February each year. Mr Thappa attended the meeting even though he had not yet completed his self-assessment as part of the mid-term review procedure. Ms Donnelly conducted the meeting with Ms Lowe attending as an observer. On Ms Lowe’s evidence, she was asked to attend that day by Ms Donnelly as Ms Donnelly did not feel comfortable meeting alone with Mr Thappa. It appears that the meeting traversed aspects of Mr Thappa’s work performance over the preceding period, although I note his assertion that specific work tasks or projects were not squarely addressed. On Ms Lowe’s evidence, aspects of Mr Thappa’s work performance were identified as poor and underperformance issues were canvassed, although no final assessment was made. Mr Thappa was asked to complete and lodge his self-assessment by 17 February 2009, which he did.
On 10 February 2009, Ms Lowe handed Mr Thappa a notice signed by Mr Layt, Director of the Human Resources Branch of AusAID, requiring him to attend counselling on 12 February 2009. It appears that Ms Lowe informed Mr Thappa that Ms Donnelly had made a complaint that he was bullying her and the counselling was required to address this.
On 11 February 2009, Mr Thappa asked Mr Layt to delay the scheduled counselling. This request was denied. Mr Thappa asserts that he met with Margaret Callan, then Assistant Director General, on 11 February 2009 and discussed his concerns about the counselling and the manner in which he was being treated by Ms Donnelly and Ms Lowe. Ms Callan denies that this occurred. Mr Thappa handed up a copy of an emailed request for a meeting with Ms Callan in support of his assertion[8]. But this merely establishes that he requested a meeting; not that the meeting occurred.
[8] Exhibit 6.
On 12 February 2009, Mr Thappa attended the counselling with a support person, Mr Reese (a union delegate). Trish Lynch, Ethics and Welfare Manager, was also in attendance. Minutes of the meeting, as amended by Mr Thappa, are at T6.4.
Mr Thappa informed me that he was upset by this meeting and, afterwards, he collapsed at his desk. He described this as a panic or anxiety attack. He said that he left work and did not return until 16 February, but he did not seek medical treatment. By his account, he worked on his performance review self-assessment on 16 February and lodged it on 17 February.
On 18 February 2009, Mr Thappa was asked to attend a meeting with Ms Callan on 20 February 2009. This he did with Amy Hadad as a support person. Ms Callan informed him that she did not agree with his performance self-assessment, preferring the assessment of Ms Donnelly and Ms Lowe. She informed him that he would be required to undergo counselling and coaching or coaching over a 4-week period to assist improve his work performance, at the end of which a further assessment would be made.
Mr Thappa informed me that he felt very upset by this meeting and the under-performance action. He says that he experienced a second collapse or anxiety attack in Ms Hadad’s presence. He departed work and sought medical treatment, consulting Dr Williams the following day. Dr Williams certified that he was unfit for work and prescribed treatment.
Mr Thappa has not subsequently returned to work.
He claimed compensation for injury on 22 April 2009[9].
[9] T4.3.
On 17 October 2009, Comcare determined to reject the claim[10], affirming the determination in a subsequent reconsideration decision dated 21 April 2010[11]. Mr Thappa applied for review, but he failed to progress the application in a timely manner, and it was dismissed.
[10] T20.
[11] T28.
Mr Thappa pursued his rights, seeking review of his treatment by the Director-General of AusAID, by the APS Merit Protection Commissioner, and by the Commonwealth Ombudsman. The report of a review conducted by WISE Workplace Investigations is at T32.
Subsequently, once those other processes had been finalised, Mr Thappa, again, applied for review of Comcare’s reconsideration decision rejecting his claim for compensation. The Tribunal granted him an extension of time in which to make the application, resulting in the commencement of these proceedings.
Comcare says that Mr Thappa’s claim cannot succeed because the disease he claims as an injury resulted, in significant part at least, from two administrative actions in respect of his employment – the counselling meeting with Mr Layt on 12 February 2009 in respect of alleged bullying; and the meeting with Ms Callan on 20 February 2009 in respect of an assessment of under-performance. In Comcare’s submission, each of these actions was reasonable, and it was undertaken in a reasonable manner, thereby falling within the exclusionary provisions of s 5A(1).
Mr Thappa cavils with this, asserting that the actions were not reasonable or reasonably undertaken in the circumstances. He says that he was denied procedural fairness, and was treated badly by his managers. In his submission, the exclusionary provisions of s 5A(1) are not made out and the decision under review should be set aside.
The terms of s 5A must be considered –
5A Definition of injury
(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.
In order to address the submissions of each party, and to properly determine Mr Thappa’s claim, the following questions must be answered in respect of the two causes of action in February 2009 on which Comcare relies, namely the action taken on 12 February 2009 in respect of a complaint about Mr Thappa’s behaviour, and the action taken on 20 February 2009 in respect of alleged under-performance by Mr Thappa –
(a)Did Mr Thappa’s Adjustment Disorder result from the action? And if so
(b)Is the action administrative action in respect of his employment? And if so
(c)Is the administrative action reasonable? And if so
(d)Was the administrative action undertaken in a reasonable manner?
If all of these questions are answered affirmatively, Mr Thappa’s disease will not constitute an ‘injury’ for the purposes of the Act and he will not be entitled to compensation. That will be so even though there may be other causal factors that significantly contributed to the disease[12]. Conversely, if the answer to any of these questions is No, Comcare concedes that Mr Thappa’s Adjustment Disorder will constitute an ‘injury’ for the purposes of the Act and it will be necessary to determine the date of the injury.
[12] Hart v Comcare [2005] FCAFC 16 at [21]-[23].
At this point it is appropriate to note that Ms Donnelly did not provide a detailed witness statement, and she was not available to give oral evidence at the hearing for medical reasons (a medical certificate was provided by her treating doctor). Ms Donnelly complained that she was bullied by Mr Thappa and she has avoided any involvement in review processes, including these proceedings, instituted by Mr Thappa. Ms Donnelly was not summonsed to appear. I also note that Mr Layt resisted Comcare’s request for him to give oral evidence at the hearing, impliedly for medical reasons, although no supporting medical evidence was provided. Mr Layt was not summonsed to appear.
Comcare and Mr Thappa did not press for either witness to be summonsed.
In the usual course, for reasons of fairness at least, as Ms Donnelly and Mr Layt are key players in events that are central to this dispute, one might expect each of them to be called so that their evidence could be properly examined and tested. I heard the submissions of both parties on this point and I have formed the view that, in light of the extensive contemporaneous documentary evidence, it is not necessary to delay proceedings in order to summons Ms Donnelly or Mr Layt to give further evidence, even though there may be some disadvantage to both parties.
The determinative elements of this case have a narrow compass involving whether Mr Thappa’s Adjustment Disorder resulted from two actions that Comcare says are reasonable administrative actions undertaken in a reasonable manner in respect of his employment. Further evidence from Ms Donnelly or Mr Layt may add colour and detail to the factual matrix that is otherwise established, but this will not change the result. The weight to be given to their untested evidence is a matter for consideration. That notwithstanding, as will appear, having had careful regard to Mr Thappa’s extensive materials and submissions (including those he handed up during the hearing), I am satisfied that the key facts are well-established and the relevant circumstances are sufficiently clear to properly determine whether the specific administrative actions taken on 12 and 20 February 2009 are reasonable and whether they were undertaken in a reasonable manner.
ACTION TAKEN IN RESPONSE TO THE COMPLAINT ABOUT BEHAVIOUR
Did Mr Thappa’s Adjustment Disorder result from the action?
The answer to this question is Yes.
The evidence of Dr Williams[13], Rosemary Dupont (a rehabilitation consultant)[14], Dr Andrew Lark (a consultant occupational physician)[15] and Dr Zsadanyi (a consultant psychiatrist)[16], establishes that Mr Thappa’s Adjustment Disorder was significantly contributed to by events in his employment from September 2008. This evidence is sufficient to establish, on the balance of probabilities, that the counselling meeting on 12 February 2009 and related actions, significantly contributed to Mr Thappa’s Adjustment Disorder. Mr Thappa’s own account of having collapsed with a panic attack soon after the meeting on 12 February 2009, while at work, supports this finding. I accept his evidence that this occurrence caused him to be absent from work until 16 February 2009, although he did not obtain medical treatment or a medical certificate at that time.
[13] T12.
[14] T7.
[15] T6.6.
[16] T14.
Is the action administrative action in respect of his employment?
The answer to this question is Yes.
The scope and proper construction of s 5A(1) and the meaning of “administrative action” taken “in respect of the employee’s employment” was decided in Commonwealth Bank of Australia v Reeve[17] - “action taken in respect of the administration of the relationship of the employer and employee … [something that is] done with respect to the employment relationship that the particular employee has with the employer”[18].
[17] [2012] FCAFC 21.
[18] Ibid at [33].
I am reasonably satisfied that Mr Layt’s action to require Mr Thappa to attend a counselling meeting pursuant to a complaint about his behaviour was administrative action in respect of his employment.
Is the administrative action reasonable?
The answer to this question is Yes.
On 10 February 2009, Mr Layt informed Mr Thappa that “… it has been brought to my attention that recent workplace behaviour displayed by you has been reported as intimidating and harassing. For this reason I wish to counsel you in relation to your behaviour.”[19] It is quite clear from Mr Layt’s statement and from relevant contemporaneous documents (in the form of emails and records attached to Mr Layt’s statement for example), that the primary report was that of Ms Donnelly, documented in an email on 6 February 2009[20], and that Mr Layt was apprised of concerns about Mr Thappa’s behaviour and performance over preceding months, from September 2008 at least. Ms Lowe’s evidence is that Ms Donnelly “broke down” on or about 6 February 2009 when discussing her concerns about Mr Thappa’s behaviour with Ms Lowe, her direct supervisor, and Mr Layt.
[19] T6.3 folio 35.
[20] Exhibit 7, Attachment 9, page 2.
In these circumstances, a number of possible actions were open to Mr Layt under the AusAID Workplace Harassment and Anti-Bullying policy. I note that the only version of this policy given in evidence came into effect on 15 January 2010[21]. I accept Comcare’s assertion that, even though the precise words may be different, the same or very similar principles and procedures as those encapsulated in this document applied under the earlier AusAID Policy in 2008 and 2009. Policies of this nature are not novel or unique to AusAID. As can be seen, the options open to Mr Layt included facilitating informal discussion or mediation with the parties, conducting formal counselling, and instituting a formal investigation of a suspected breach of the APS Code of Conduct in a manner that complied with the Director General’s direction.
[21] Exhibit 1, Annexure 4.
To my mind, the intermediate counselling action Mr Layt adopted was proportionate to the complaint made by Ms Donnelly. On Ms Lowe’s unchallenged evidence, the seriousness of the complaint against Mr Thappa was evident by the distress Ms Connelly revealed when she “broke down” when discussing her concerns on or about 6 February 2009. In those circumstances, it was reasonable for Mr Layt to intervene by requiring Mr Thappa to attend a meeting with him for counselling, rather than to leave it to Ms Donnelly and Mr Thappa to discuss themselves, informally. The notice Mr Layt issued to Mr Thappa does not refer to a breach of the Code of Conduct, rather it refers to a report of behaviour that was perceived as intimidating and harassing that Mr Layt wished to counsel Mr Thappa about, particularly in respect of the requirement to adhere to the Code of Conduct. That being so, and having regard to the untested evidence in Mr Layt’s statement, it appears that he formed the view that it was not necessary or appropriate to institute a formal investigation.
I do not accept Mr Thappa’s proposition that the contextual history of management actions taken by Ms Lowe, Ms Donnelly, Ms Callan and others from September 2008, or Mr Layt’s apparent knowledge of concerns about Mr Thappa’s behaviour and performance renders the administrative action of formal counselling about his behaviour other than reasonable. To the contrary, Ms Lowe’s informal email to Mr Thappa on 9 October 2008, following an informal meeting on 23 September[22], is clear evidence that Mr Thappa was squarely on notice about her concerns about his behaviour, including “… your inability to work well in a team, rude and aggressive behaviour towards the consultant, your refusal to do duties requested of you, and the comments that you may have made about AusAID and AusAID officers”[23]. Ms Lowe’s evidence is that Mr Layt advised her to provide Mr Thappa with a written an informal Code of Conduct warning in writing; and that is what she did in the 9 October 2008 email.
[22] T19.1 folio 114; Exhibit 4, Statement of Michelle Lowe, 30 October 2012, Attachment 1.
[23] T19.1 folio 114.
That Mr Thappa cavils with the substance of Ms Lowe’s concern, even to the extent of asserting that she is untruthful and that she is party to what may loosely be described as a management conspiracy against him, simply confirms his knowledge of the concerns she raised about his behaviour. I note that under cross examination, while he does not perceive any issue with his behaviour, Mr Thappa accepted that he may have adopted a “sharp tone” with Mr Scales and with his managers from time to time, which they may have construed to be aggressive. When pressed, he also accepted that he may have said “No, no, no” on various occasions as this was part of his vernacular or a mannerism, which his managers may have incorrectly understood to imply that he was refusing to undertake a task. Ms Lowe’s observation about the interaction of Mr Thappa and Mr Scales in September 2008 illuminates the point - “Indra, however, felt that he was not aggressive at all. I advised him that what I had witnessed was very aggressive and rude”[24].
[24] T19.1 folio 115.
Notwithstanding Mr Thappa’s assertions about poor treatment, unfairness and flawed procedures to his detriment, I am satisfied that the formal counselling action taken by Mr Layt on 12 February 2009 was a proportionate response to the matters raised by Ms Donnelly on 6 February 2009 in the circumstances – it was administrative action that was reasonable in the circumstances.
Was the administrative action undertaken in a reasonable manner?
On balance, the answer to this question is Yes.
As I comprehend the thrust of Mr Thappa’s case and the detail of his submissions, it is this question of reasonableness that lies at the heart of his concern – he maintains that the formal counselling action was not undertaken in a reasonable manner[25]. In his submission, the action was not undertaken impartially or fairly; he was not provided with the substance of the allegations against him beforehand, and he was not provided with an opportunity to respond before disciplinary action was taken against him. These factors, he says, denied him procedural fairness, rendering the action unreasonable.
[25] See Exhibit 2, Exhibit 3 and T32 for example.
There are a number of things to say about this.
The present evidence does not establish that Mr Layt was biased against Mr Thappa, or that he was other than impartial in the manner in which he dealt with Ms Donnelly’s complaint, including the arrangement and conduct of the counselling meeting and related actions. It is true that Mr Layt moved promptly to address Ms Donnelly’s complaint, giving Mr Thappa only 2 days’ notice of the counselling meeting. I am satisfied that this was reasonable in the circumstances, where a female supervisor complains of feeling intimidated and harassed by a male subordinate officer with evidence of similar behaviours, about which he was informally warned.
Mr Layt refused Mr Thappa’s request to defer the counselling meeting for a number of weeks[26]. To my mind, this was reasonable and justified in the circumstances. I accept that a person in Mr Layt’s position would need to weigh the available options and likely consequences. On the one hand, acceding to Mr Thappa’s request might afford him more time to prepare and to obtain representation; but, on the other hand, it would leave in place a potentially damaging situation where an officer feels intimidated and harassed by another, with whom she is required to work closely on a daily basis as his supervisor, where there is clear evidence that her ability to undertake the supervisory function, and potentially her health, was being adversely affected[27]. Balancing these competing considerations, it was reasonable for Mr Layt not to accede to Mr Thappa’s request for deferral.
[26] T6.3 folio 36.
[27] Exhibit 4, Statement of Michelle Lowe, 30 October 2012, paragraph 26; Exhibit 7, Statement of Christopher Layt, 1 November 2012, Attachment 7.
Mr Thappa’s assertion that he met with Ms Callan on 11 February 2009 is not made out. The evidence he produced in the form of an emailed request to meet with Ms Callan on that day is not evidence that the meeting took place. Ms Callan gave evidence that she did not recall any such meeting. I was not taken to any contemporaneous record of the meeting in the voluminous records that have been tendered.
Mr Layt’s untested evidence is that “I believed it was necessary to deal with the Applicant’s behaviour whilst the incidents were still fresh, and I felt it was important for the Applicant to respond to the complaints about his behaviour”[28]. While it may be unsafe to rely on this untested evidence, I note that it is consistent with and supported by the record of the counselling meeting, in which Mr Thappa was provided with ample opportunity to respond to the complaint about his behaviour. That he chose not to respond is a matter for him. I do not accept the proposition that he could not properly respond without, first, being provided with a written account of the specific complaints against him.
[28] Exhibit 7, paragraph 31.
Mr Thappa’s assertion that the counselling action was unfair and unreasonable because he was not made aware of the allegations against him prior to the meeting is not made out. Under cross-examination, Mr Thappa admitted that Ms Lowe informed him of the substance of the complaint against him, in respect of his behaviour, on 10 February 2009. This is consistent with Ms Lowe’s oral and written evidence[29], which I accept. This notwithstanding, he submits that he was not provided with “the full details of the allegations orally or in writing before arriving for the formal disciplinary hearing on 12 February…” [original emphasis]. While Mr Thappa may not have been provided with the ‘full details’, in the form of a written complaint (such as appears at T6.4 folios 39 and 40), I am reasonably satisfied that Mr Thappa was provided with sufficient information on 10 February 2009, orally by Ms Lowe and in writing by Mr Layt, to understand the allegations against him in respect of his behaviour and to consider his response. Ms Lowe’s email of 10 February 2009 sets out Mr Thappa’s initial response to the allegations against him – “As expected he thinks this is mostly Janet’s fault. That the blame shouldn’t all be placed at his door. He also focused on the two consultants that Janet had mentioned complained about him”[30]. Furthermore, Ms Lowe had raised similar concerns about his behaviour on 23 September and 9 October 2008.
[29] Exhibit 4, Statement of Michelle Lowe, 15 March 2013, paragraph 21 and Exhibit 7, Attachments 10 and 11.
[30] Exhibit 7 , Attachment 11.
Mr Thappa’s submission that “the complainant [Ms Donnelly] was able to be heard prior to the formal counselling hearing” may be correct to the extent that there were communications between Ms Donnelly, Ms Lowe and Mr Layt in the lead up to the counselling meeting in respect of Ms Donnelly’s concerns about Mr Thappa’s behaviour. I am satisfied that these communications were directed to clarifying and detailing Ms Donnelly’s concerns in order to enable Mr Layt to determine the most appropriate response in the circumstances. That is what he did by arranging a meeting with Mr Thappa to hear his response to Ms Donnelly’s complaint and to counsel him about his behaviour without instituting a formal investigation in respect of a suspected breach of the Code of Conduct. It is quite clear that Mr Layt did not proceed to deal with the complaint as a suspected breach of the Code of Conduct, and he did not institute formal procedures that would apply in that event[31].
[31] See Exhibit 1, Annexure 4, Part J.
I do not accept Mr Thappa’s description of the counselling as a formal punitive sanction or as a disciplinary action in the form of a “Code of Conduct measure”. No sanction was applied. It is true that Mr Layt described the counselling as formal and he informed Mr Thappa that a record of the meeting would be kept, warning that “If there are further incidences of unacceptable behaviour, HR would consider the merit of a further discussion or a formal code of conduct investigation”[32]. Clearly, the counselling had a disciplinary character, but the evidence establishes that it was not a formal action in respect of a suspected breach of the Code of Conduct.
[32] T6.4 folio 44.
I am reasonably satisfied that the manner in which the counselling action was undertaken was fair, proportionate and reasonable in the particular circumstances.
THE UNDER-PERFORMANCE ACTION
Did Mr Thappa’s Adjustment Disorder result from the action?
On the evidence of Dr Williams, Ms Dupont, Dr Lark and Dr Zsadanyi, the answer to this question is Yes.
Mr Thappa’s own account is that he collapsed after the under-performance meeting with Ms Callan on 20 February 2009 and was subsequently certified unfit for work by Dr Williams.
Is the action administrative action in respect of his employment?
The answer to this question is Yes.
The action taken by Ms Callan on 18 February 2009, calling Mr Thappa to a meeting with her on 20 February 2009, and the action she took in that meeting, requiring him to undergo a 4-week period of counselling and coaching in respect of under-performance, is clearly administrative action in respect of his employment.
Is the administrative action reasonable?
The answer to this question is Yes.
Under cl 67.1 of Part G of the AusAID Collective Agreement 2006 to 2009, it was open for Ms Callan to act as she did on 20 February 2009.
The evidence establishes that she formed the view that Mr Thappa’s performance was not acceptable. It is quite clear that Ms Callan was aware that concerns had been raised previously about Mr Thappa’s performance by Ms Lowe and Ms Donnelly[33].
[33] See Exhibit 5 and Exhibit 4, Attachment 5.
In those circumstances, requiring Mr Thappa to undergo a 4-week period of counselling and coaching was reasonable administrative action.
Was the administrative action undertaken in a reasonable manner?
The answer to this question is Yes.
Mr Thappa takes issue with many aspects of the performance review and related actions in February 2009[34]. He says that the notice Ms Donnelly provided him in respect of his mid-term Performance Development Plan review was insufficient and unfair – he was provided with less than one day’s notice of the meeting Ms Donnelly scheduled on 9 February 2009. He asserts that he did not have time to complete his self-assessment for the purposes of the mid-term review and that this was not taken into account by Ms Donnelly or Ms Callan, as required by the published procedures[35]. Mr Thappa also takes issue with Ms Lowe’s attendance at the review meeting and asserts that Ms Donnelly did not address specific aspects of his work plan in the review. Furthermore, Mr Thappa asserts that he was not provided with sufficient notice or explanation of the meeting with Ms Callan; he was treated unfairly and unjustly.
[34] See Exhibit 2, Exhibit 3 and T32 for example.
[35] Exhibit 1, Annexure 5.
There can be little doubt that providing Mr Thappa with less than one day’s notice afforded him very little time to prepare for the review. It would have been preferable to provide Mr Thappa with more notice and time to prepare. The arrangement of the mid-term review was deficient in this regard.
Nonetheless, the Performance Development Plan Mr Thappa signed with Ms Donnelly covered the period from 1 August 2008 to 30 June 2009. It required that – “By 28 February 2009, mid-term review agreed, registered, and endorsed by your manager in Aurion, or emailed to [email protected]”[36]. Mr Thappa did not suggest that he was unaware of this requirement.
[36] Ibid, Attachment 3w.
It appears that Ms Donnelly’s mid-term review assessment of Mr Thappa’s performance on 9 February 2009 identified several areas in which he was rated as ‘ineffective’[37], with an overall rating of ineffective[38]. It is probable that she initially formed these assessments in discussion with Mr Thappa on 9 February 2009, but without regard to his self-assessment. This, too, was deficient.
[37] Ibid, Attachment 3t.
[38] Ibid, Attachment 3s, page 15.
These deficiencies were addressed by Ms Donnelly providing Mr Thappa with additional time to prepare and lodge his self-assessment report. Mr Thappa did so, and lodged his self-assessment report on 17 February 2009, indicating that he was effective[39]. It appears that Ms Donnelly considered this document and added comments[40], which she provided to Ms Lowe and to Ms Callan.
[39] Ibid, Attachment 3s, page 15
[40] Ibid, Attachment 3s, page 15 and Attachment 3r, page 1.
I note that specific tasks to be included in Mr Thappa’s work plan from 12 February to 1 May 2009 are set out in Ms Donnelly’s email to Mr Thappa on 10 February 2009[41]. I do not accept Mr Thappa’s assertion that these aspects of his work were not discussed by Ms Donnelly in the mid-term review.
[41] Ibid, Attachment 3n. See detailed work plans in Attachments 3v, 3l and 3k.
Ms Lowe was Ms Donnelly’s supervisor. I accept that she attended the mid-term review meeting as an observer at Ms Donnelly’s request as she did not feel comfortable meeting alone with Mr Thappa. Ms Donnelly’s complaint about Mr Thappa’s behaviour illuminates the reason for this action.
It appears that Ms Lowe considered these documents and provided comments to Ms Callan on 18 February 2009, recommending “that we commence the CA [certified agreement] underperformance process”[42]. Ms Callan’s unchallenged evidence is that she considered the assessments of Ms Donnelly, Mr Thappa and Ms Lowe before deciding to act. I accept that she did and so find.
[42] Ibid, Attachment 3r, page 2.
As I have said, Ms Callan was aware of issues raised previously by Ms Lowe and Ms Donnelly about Mr Thappa’s performance[43]. Mr Thappa’s assertion that these managers, in some way, colluded or conspired against him is not supported by evidence, and it is not consistent with the documents in evidence, which I have carefully examined. The evidence establishes that concerns about Mr Thappa’s performance were documented over a long period, from July 2008. The contemporaneous records suggest that these concerns were raised and discussed with him in his 2007-2008 Performance Development Plan review, and subsequent issues were raised and discussed with him by Ms Lowe and Ms Donnelly in September and October 2008, and in February 2009. Mr Thappa’s submission to the contrary must be rejected.
[43] See Exhibit 4, Statement of Michelle Lowe, 30 October 2012, Attachment 5.
Having determined that Mr Thappa’s performance was not acceptable, Ms Callan acted promptly, providing him with 2 days’ notice of a meeting to discuss his performance. While the period of notice is short, it reflects the exercise of judgement by Ms Callan as to the most appropriate action in the circumstances – on the one hand, Mr Thappa required procedural fairness, and on the other hand he and Ms Donnelly required support to address his under-performance.
Mr Thappa was invited to attend with a support person, which he did; Ms Hadad attended the meeting with him.
On balance, while aspects of the performance review process could have been improved, the actions taken by Ms Callan to address Mr Thappa’s under-performance were reasonably undertaken. Ms Callan afforded Mr Thappa procedural fairness. She properly considered his self-assessment report, but considered that Ms Donnelly’s assessment (including her comments about Mr Thappa’s self-assessment report), and the recommendation of Ms Lowe, were more persuasive.
Once again, I do not accept Mr Thappa’s characterisation of Ms Callan’s action as unfair or unjust. It was action taken in accordance with the procedures set out in cl 67.1 of the Collective Agreement to assist performance improvement on Mr Thappa’s part. It did not extend to a formal warning or any other sanction. To my mind, it was proportionate and reasonable action to take in the circumstances.
CONCLUSION
Mr Thappa’s Adjustment Disorder was significantly contributed to by incidents of his employment. It meets the description of a ‘disease’. Unfortunately for Mr Thappa, even though his Disorder resulted from several employment causes over a period from September 2008, two of those causes are within the exclusionary terms of s 5A(1), being reasonable administrative actions undertaken in a reasonable manner in respect of his employment.
It follows that Mr Thappa’s Adjustment Disorder is not an ‘injury’ for the purposes of the Act, and he is not entitled to compensation. His claim must be rejected and the decision under review affirmed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. .......................[sgd]........................................
Associate
Dated 3 September 2013
Date(s) of hearing 5, 6 and 7 August 2013 Date final submissions received 7 August 2013 Applicant In person Counsel for the Respondent Mr Matthew Gollan Advocate for the Respondent Mr Luke Woolley Solicitors for the Respondent Sparke Helmore
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