INGRID SEWELL and COMCARE
[2012] AATA 320
•30 May 2012
[2012] AATA 320
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/3180
Re
INGRID SEWELL
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal Senior Member J L Redfern
Air Vice-Marshal (Dr) T K Austin AM, MemberDate 30 May 2012 Place Sydney The decision under review to deny liability for adjustment reaction with anxious mood is set aside and substituted with the decision that Comcare is liable to pay compensation to the Applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
............[sgd]............................................................
Senior Member J L Redfern
CATCHWORDS
COMPENSATION – Commonwealth employees – disease – reasonable administrative action – undertaken in a reasonable manner – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 7, 14
CASES
Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289
Comcare v Mooi (1996) 69 FCR 439
Hart v Comcare (2005) 145 FCR 29
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re KRDV and National Australia Bank Ltd (2011) 125 ALD 311; [2011] AATA 210
Re Lynch and Comcare (2010) 114 ALD 394; [2010] AATA 38Re Wilson and Comcare [2010] AATA 396
REASONS FOR DECISION
Senior Member J L Redfern
Air Vice-Marshal (Dr) T K Austin AM, Member30 May 2012
Mrs Ingrid Sewell was employed by the Department of Defence as the Business Improvement Manager in the Airborne Early Warning and Control Systems Program Office, Defence Materiel Organisation from 23 May 2007 until 9 August 2010.
On 22 April 2009, following periods of absence from work from November 2008, Mrs Sewell made a claim for workers compensation for anxiety arising from conflict in the workplace. She had returned to full-time work in April 2009, having worked part-time or on restricted hours from February 2009, but on 9 November 2009 went off work and did not return. She resigned on 29 January 2010 citing, amongst other things, the “untenable work situation” and her “constructive dismissal” by the Department of Defence. Her resignation took effect on 9 August 2010 after taking into account annual and long service leave.
Mrs Sewell’s claim for compensation was declined on 18 November 2009. She sought reconsideration, but on 27 May 2010 the determination was affirmed by an Independent Review Officer from Comcare. The claim was declined on the basis that Mrs Sewell’s injury was sustained as a result of “reasonable administrative action” undertaken in a reasonable manner in respect of her employment. Mrs Sewell denied this claim and sought a review of the decision.
LEGISLATIVE FRAMEWORK AND RELEVANT ADMINISTRATIVE INSTRUCTIONS
The relevant legislation that governs this review is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
5. Section 14 provides that compensation is payable “in respect of an injury suffered by an employee if the injury results in ... incapacity for work”. “Injury” is defined to include a “disease” (s 5A(1)) and “disease” is defined in s 5B 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 ...
Under s 4(1) an “ailment” means “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Excluded from the definition of “injury” is “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(1)). “Reasonable administrative action” is defined in s 5A(2) as follows:
(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 assessing whether there has been “reasonable administrative action taken in a reasonable manner”, it is appropriate to consider the relevant policies and procedures applying to the Department of Defence and Mrs Sewell at the time the administrative action was taken: Re Lynch and Comcare (2010) 114 ALD 394; [2010] AATA 38. It is common ground that Defence Instructions (General) PERS 35-3 Management and Reporting of Unacceptable Behaviour, issued by the Chief of the Defence Force, is relevant. On 11 February 2004 a revised Instruction was issued (Instruction No. 5) and this version operated until 28 June 2009, when a further revised Instruction was issued (Instruction No. 6). Defence Instructions PERS 35-3 deals with the management of complaints of unacceptable behaviour and the resolution of complaints. Both versions of the Defence Instructions are relevant because various complaints were made against Mrs Sewell by her staff in the period from about May 2008 until August 2009. One of the issues raised was whether the action taken by her supervisors in managing those complaints was a material factor that contributed to her injury.
Defence Instructions PERS 35-3 No. 5 provides that “a commander or manager must act on all complaints received” and “must assess any complaint and decide the appropriate action to be taken” (paragraphs 41 and 42). Paragraph 63 provides as follows:
… Where a suspected breach of the APS Code of Conduct has arisen through unacceptable behaviour, commanders and managers have the initial responsibility of deciding whether the matter is best dealt with locally, or needs to be forwarded to the appropriate Defence delegate for further consideration. A Quick Assessment, by either a Defence APS employee or ADF member, may be used to determine the facts in order to make this decision. The Australian Public Service Commission (APSC) Handbook 2 - Managing Breaches of the APS Code of Conduct provides advice on matters to be considered when managing suspected breaches of the APS Code of Conduct by Defence APS employees.
Complainants and respondents to the complaint must be consulted. Relevantly, paragraph 73 provides:
As soon as possible after a complaint is made, the commander or manager should advise the respondent of the substance of the complaint being made against them and the name of the complainant... The respondent is to be given the opportunity to reply to the complaint and be advised of the outcome of the inquiry...
A complaint may be resolved informally or formally. If a Defence APS employee is dissatisfied with the outcome or handling of a complaint, the employee may seek a review (paragraph 100).
Defence Instructions PERS 35-3 No. 6 made a number of revisions to the Defence Instructions, setting out the substance of the principles and procedures in a number of annexures. Annexure D deals with “Management of Unacceptable Behaviour Complaints”. Paragraph 5 provides that a “commander or manager must act on all unacceptable behaviour complaints brought to their attention in a prompt, fair and impartial manner”. Following receipt of the complaint, the commander or manager must determine whether the complaint is to be managed under the Defence Instructions, conduct a Quick Assessment (commonly referred to as a “QA”) and make and record decisions in relation to the complaint, having regard to the QA report and recommendations (paragraph 6). Consistent with the terms of the previous version of the Instruction, it is noted that the “purpose of a QA is to assess the known facts about an occurrence to inform a decision about the most appropriate course of action”. It is also noted that QA is “not an investigation and is not to be used as the basis for adverse findings”.
After the QA, the commander or manager may determine that no further inquiry action is warranted and close the complaint, determine that the matter may be resolved informally or determine that further inquiries should be conducted (paragraph 7). The complainant and the respondent are to be kept informed about the complaint and the process and the respondent must be informed of the complaint “as soon as possible after a complaint is made, usually in the QA process” and provided with “as much information as necessary to afford procedural fairness” (paragraph 8). There are review rights if a party is dissatisfied with the outcome or process and parties must be advised of this (paragraph 10 and annexure E.
CONTENTIONS OF THE PARTIES AND ISSUES FOR DETERMINATION
Mrs Sewell contended that she while was employed by the Department of Defence she was subjected to unreasonable levels of work and aggressive and inappropriate behaviour from her supervisor, Mr Glen Jones. She sought treatment in June 2007 as a result of work stress. The conflict and stress in her work continued until November 2008, when her supervisors initiated a QA which Mrs Sewell regarded as unwarranted and unreasonable in the manner it was notified and resolved. Mrs Sewell was absent from work, or on restricted duties and part-time work, for several months in early 2009 and made a claim for workers compensation on her return to work. She alleged inappropriate behaviour and lack of support by her supervisors after her return. A further QA was initiated in August 2009, which she also considered to be unwarranted. Mrs Sewell continued to work for a few months after this but left work, affected by “adjustment reaction with anxious mood” on 9 November 2009.
Mrs Sewell has not worked since this time but commenced a part time TAFE course in 2010. The alleged lack of support from supervisors, failure by her supervisors to follow proper process and inappropriate workload and bullying are said to be the cause for Mrs Sewell’s adjustment disorder. Mrs Sewell contended that there is no dispute that her injury was contributed to a “significant degree” by her employment. The sole issue in dispute, as particularised in the reviewable decision, is whether Mrs Sewell’s injury resulted from “reasonable administrative action taken in a reasonable manner”. Counsel for Mrs Sewell contended that Mrs Sewell’s injury did not result from the meeting on 10 November 2008, or the subsequent QA processes, but rather from excessive workload and poor management and bullying by supervisors. Even if it is established that Mrs Sewell’s injury did so arise, the meeting of 10 November 2008 and subsequent QA processes were neither reasonable nor taken in a reasonable manner. The decision of Comcare should be set aside and substituted with a decision that Comcare is liable to pay compensation to Mrs Sewell under s 14 of the Act.
Comcare contended that there is no evidence Mrs Sewell suffered from a psychological condition prior to 10 November 2008 “outside the boundaries of normal mental functioning and behaviour” (Comcare v Mooi (1996) 69 FCR 439) and as such Mrs Sewell did not sustain an injury until 10 November 2008, when she first sought treatment. In the reviewable decision of 27 May 2010 and the Respondent’s Statement of Facts, Issues and Contentions (SOFIC), Comcare contended that Mrs Sewell’s injury was a result of the meeting on 10 November 2008, which constituted “reasonable administrative action taken in a reasonable manner”, and is therefore excluded as a compensable injury under s 5A(1) of the Act. Submissions at the hearing were not confined to the meeting and addressed events that occurred after that meeting, including the QA process that followed and the QA conducted in August 2009, which was also characterised as reasonable administrative action taken in a reasonable manner. Counsel for Comcare submitted there was no evidence Mrs Sewell was experiencing unreasonable workloads or that the conduct of her supervisors was inappropriate and bullying. The procedures followed by Mrs Sewell’s supervisors were in accordance with Department of Defence guidelines. The decision of Comcare should be affirmed.
It is not in dispute that Mrs Sewell suffered an adjustment disorder and that this was contributed to by her employment.. The key issue in dispute is whether Mrs Sewell’s condition was “as a result of reasonable administrative action taken in a reasonable manner”. This raises two factual matters for determination. The first is whether Mrs Sewell’s condition was “a result of” the meeting of 10 November 2008 and the subsequent QA processes. If so, the second is whether the 10 November 2008 meeting and the subsequent QA processes constituted “reasonable administrative action taken in a reasonable manner”.
BACKGROUND FACTS
Mrs Sewell has worked in the Australian Public Service since 1999. From 2003 until 2005, Mrs Sewell worked with the Tactical Fighter Systems Program Office. She was transferred to the Maritime Services Division where she worked from October 2005 until August 2006 implementing a project for standardising their Quality Management System (QMS). Defence Materiel Organisation advertised for a Business Improvement Manager in the Airborne Early Warning and Control Systems Program Office (AEWCSPO) and on 23 May 2007, she commenced this role in an acting capacity. According to the job description for the role, the Business Improvement Manager was to lead a small team and “contribute to the planning and business improvement of the Systems Program Office (SPO)”. One of the key projects was to develop, implement and manage the QMS of the AEWCSPO. This also involved obtaining certification of the QMS from the International Organization of Standardization (ISO certification).
The AEWCSPO was the support unit to ensure the maintenance and airworthiness of certain aircraft used by the Department of Defence. Mr Glen Jones was the Director of the Business Support Unit (BSU) of the AEWCSPO. He was Mrs Sewell’s direct supervisor during the period of her employment in the AEWCSPO. Group Captain Philip Tammen was the Officer Commanding of the AEWCSPO from January 2008 and was the supervisor of Mr Jones.
The role of Business Improvement Manager was re-advertised and on 20 September 2007, Mrs Sewell was selected and permanently appointed to the position.
Mrs Sewell provided an organisational chart for the Business Support Unit as it was prior to her appointment. There was no evidence about whether this was provided to her at the time of her application or when she commenced. In the organisational chart, the Business Improvement Manager had three staff, being a Schedule Controller, a Business Improvement Officer (both APS5 level) and a part-time APS3 level staff member. On her commencement, the two APS5 staff were reporting to Mr Jones and an APS3 staff member (the Business Improvement Performance and Reporting Clerk) was reporting to one of the APS5 staff. As such, Mrs Sewell did not have any direct reports when she commenced and this remained the position until an APS3 officer, Ms W, was transferred to the role of “Business Improvement Performance and Reporting Clerk” reporting to Mrs Sewell in November 2007.
According to Mrs Sewell, she needed more resources to perform her role and she raised this issue with Mr Jones at the outset. The appointment of Ms W did not resolve the issues as, on Mrs Sewell’s account, Ms W did not have the appropriate level of experience to provide Mrs Sewell with the support she needed. In early 2008 the Administration Section (which also provided support to other areas within the SPO) was transferred to Mrs Sewell. This section comprised two staff members, being an APS3 officer (Ms F) and an APS2 administration clerk (Ms S). There is dispute on the evidence between Mrs Sewell and Mr Jones (and to a lesser extent, Group Captain Tammen) about the need for more and better qualified resources and the nature and extent of Mrs Sewell’s complaints.
What is not in dispute is that Mrs Sewell had no assistance until November 2007; she had the assistance of an APS3 office from November 2007 and from early 2008 until about January 2009 she had the assistance of three relatively junior staff. None of her staff had experience in QMS. When Ms W resigned and Ms F was transferred to another section in January/February 2009, Mrs Sewell had no staff and the Business Improvement Performance and Reporting Clerk position was vacant for three months. This position was subsequently filled in April 2009 by upgrading the existing APS2 officer, Ms S.
Mrs Sewell gave evidence that she became stressed about her workload soon after commencing with the AEWCSPO and visited the doctor, Dr Donna Booth, in June 2007 for treatment. There is dispute about whether this related to Mrs Sewell’s work at the AEWCSPO. The clinical notes for Dr Booth for 6 June 2007 record that Mrs Sewell was admitted to the Mater Hospital on 17 May for chest pain and had “been stressed at work: had some Valium short term”. The clinical notes for 25 June 2007 record “Changed job: work a bit less stressful but need to look at actual stress program”.
Other than these references, there are no references to work or work related stress until 10 November 2008, when Mrs Sewell visited Dr Barry Ross following a meeting with Mr Jones.
Mrs Sewell gave evidence that Mr Jones did not support her attempts to manage the performance of her staff and undermined her authority. Mr Jones disputed this and said there were a number of complaints against Mrs Sewell by her staff about her management style. Ms W raised concerns with Mr Jones about Mrs Sewell and on 6 May 2008 he spoke to Mrs Sewell about these matters. According to Mrs Sewell, the issues apparently remained unresolved and on 5 November 2008, Mr Jones convened a “Communication Session” between Mrs Sewell, Ms W and Mrs Colette Coleman (from Human Resources). On 10 November 2008 Mr Jones again spoke to Mrs Sewell about complaints made by staff, this time being Ms F as well as Ms W. Mrs Sewell left work after the discussion and visited her treating doctor, Dr Barry Ross, that afternoon. According to the clinical notes of Dr Ross, Mrs Sewell complained of anxiety, conflict in the workplace on top of recent bereavement, conflict with fellow workers, poor sleeping and previous angina episode with stress trigger.
On 11 November 2008, Mr Jones convened two further “Communication Sessions”. The first was between Mrs Sewell and Ms W for 30 minutes and the second was attended by Mrs Sewell, Ms F, Mr Mark Evans (Mr Jones’ deputy who attended as support person for Ms F) and Mrs Coleman. This session is recorded in Mr Jones’ diary notes as being an hour. Following these sessions, Mr Jones consulted with Group Captain Tammen and arranged a QA to be undertaken by an independent officer, Mr Eric Kiem. Group Captain Tammen authorised the QA.
Mr Kiem undertook the QA on 13 November 2008 and interviewed Mrs Sewell, Ms W and Ms F on that day. He prepared a report dated 14 November 2008, which was provided to Group Captain Tammen and Mr Jones.
The findings of Mr Kiem, his recommendations and how the conflict between Mrs Sewell and her staff was subsequently managed is critical to this matter and as such it is useful to extract the majority of his report. Mr Kiem found there had been no breach of the Code of Conduct and reported as follows:
Overall – The Business Improvement Team is suffering from internal conflict and tension between the team members. This dysfunction is currently impacting on the wellbeing of all involved members, presenting as a medical problem in at least one case. Accordingly, the situation requires urgent remediation.
There appears to be no substance to the allegations of micro-management. In fact, the actions of the supervisor appear quite reasonable, in that all that appears to have been sought was routine advice on status and progress of assigned tasks, at approximately weekly intervals, and occasionally more frequently for urgent tasks. In essence, the supervisor appears to be striving to discharge her section responsibilities and hold the team accountable for their collective responsibilities, but the team members appear to prefer to simply undertake their duties as they see them, and are not as receptive to direct tasking as perhaps they should be.
There appears to be no substantial problem of style, tone or nature of engagement in the manner exercised by the supervisor. Naturally, each person may have a different style, and Ms Sewell may perhaps come across as a little aloof and directive. Communication is a two-way street, and the interviews suggest that the subordinates may be as responsible for ‘mis-receiving’ the message as the supervisor may be for ‘mis-transmitting’. In support of this assessment, Ms [F] appears to be pre-disposed to expecting tension with Ms Sewell (likely due to the reported previous issue at TFSPO, relating to her partner and Ms Sewell), and tension is therefore somewhat a self-fulfilling prophesy – what would otherwise be routine supervision therefore becomes domination and over-management in her mind. Ms [F] appears somewhat tense and overly sensitive and reactive to small stimuli, and therefore even minor criticism or direction by a supervisor (and in particular Ms Sewell) may be blown out of proportion.
…
Some specific instances that were raised during the interviews appear to be only minor aberrations that are part of human characteristics:
·Ms Sewell regrets the trouble caused after approaching her staff for elaboration on the 360 degree feedback responses, but her motivations were well-intended, not malicious. Ms [W] incorrectly believed that her complete responses had been provided to Ms Sewell, whereas Ms Sewell received only graphs. This misunderstanding therefore may account for her perceived level of concern, which now appears unfounded.
·Some confrontations have occurred apparently due to tasking pressure and frustrations, but not due to any fundamental problem in supervisory approach.
·In a healthier environment, these aberrations would be simply accepted and all would get on with the job; however, with the tension presently within the team, they become the seeds for increasing tension.
Unacceptable Behaviour Assessment. The Quick Assessment was conducted with a specific intention to assess whether there was any possible Unacceptable Behaviour IAW DI(G) PERS 35-3 (and if a deeper investigation or other action would then be required). The investigation acknowledged that in the minds of the subordinates, they were subjected to supervision that exceeded their expectations of reasonable; however, the interviews suggest that the supervision constituted ‘legitimate comments and advice... from commanders’ and therefore did not constitute unacceptable behaviour. For example, Ms [W’s] example of ‘micro management’ involved checking status of a task that had been with her for 3 weeks. Similarly, Ms [F’s] example (as cited by Ms Sewell) did not appear to exceed that of a normal enquiry into status, as any supervisor would be expected to do.
·Notwithstanding, the perception of Ms [F] clearly would, in her opinion fall into that category, in that she views Ms Sewell’s behaviour as being somewhat belittling, and adverse to morale and workplace cohesion;
·In her mind, Ms [F] may well view Ms Sewell’s supervision as being workplace bullying; however, per Annex A to Ref A, Workplace bullying is ‘a persistent pattern of behaviour in the workplace that is harmful, intimidating, humiliating or embarrassing, and which is aimed at making the complainant(s) feel miserable, demoralised and lacking self-confidence’. Although some of those undesirable outcomes are no doubt present, the interviews do not suggest any intent to make the complainant feel miserable, etc. To the contrary, Ms Sewell’s asserts that she has tried extremely hard to make all team members felt included, through section birthday celebrations (at work and out of work), and including significant presents, and through encouragement of team bonding activities.
·In conclusion, the assessment determined that there was no element of unacceptable behaviour; however, Ms [F] would no doubt consider the nature of Ms Sewell’s supervision to be inappropriate, and this warrants close management and immediate action, as her ability to attain a more balanced outlook is doubted.
Mr Kiem made specific recommendations in relation to Mrs Sewell and her staff but also made recommendations in relation to the BSU. The recommendations made by Mr Kiem were as follows:
1.Take immediate steps to reorganise Ms [F] to report to an alternative supervisor (perhaps Ms Munro or Mr Evans in Finance section). This is to immediately remove Ms [F] from the stress she is obviously encountering, and to provide support for her emotional state (noting the need for Valium on occasions). This accords with Ms [F’s] stated desired outcomes.
2.Ensure that Ms [F] is encouraged to seek immediate external support and has access to professional services to address the emotional wellbeing.
3.Continue to have Ms [S] report to Ms [F], in order to avoid Ms [F] forming the opinion that her role as supervisor has been diminished.
4.However, noting Ms Sewell’s report of Ms [S] having concerns over the nature of Ms [F’s] supervision, ensure that the new organisation is tuned in to provide adequate support for Ms [S], if that is needed.
5.Continue to have Ms [W] report to Ms Sewell – this is in accordance with Ms [W’s] stated desired outcomes, and the issues between them seem relatively minor and able to be resolved in time.
6.Encourage deeper exploration of Ms [W’s] concerns; perhaps through some facilitated mediation set up with Ms Sewell, Ms [W] and perhaps other BSU members, to improve team harmony.
7.As a longer term goal, set better expectations within the BSU team and wider SPO on what constitutes routine oversight and management, and what oversteps the mark. Suggest consideration of a ‘team charter’ that lays out guidelines and expectations, distribute widely within SPO, and introduce at Inductions and as part of the annual mandatory training program. Team charter could also address tolerance of others, etc (eg per Boeing Principles and Practices).
8.Specifically for BSU/Business Improvement Team, suggest review of the tasking process, with subordinates assigned responsibility for providing status updates to supervisors as part of weekly battle-rhythm/weekly reporting process. This would then remove the perception of supervisors excessively seeking status, as the obligation lies now with the subordinates and task owners.
9.BSU as a team come to terms with reporting structures and ensure that all parties recognise and respect the role of their immediate supervisors and that direct approaches to 2nd level supervisors should occur only under exceptional circumstances, and that routine ‘covering’ during absences is acceptable, but requires back-briefing.
10.Possibly in conjunction with the proposed Team Charter, ensure that all team members (Business Improvement, BSU and perhaps even SPO-wide) routinely receive positive recognition of their contributions, and ensure that all recognise the contributions of other team members. Other initiative that are aimed to reinforce the teamwork aspects and that an equitable distribution of work does in fact exist, should be sought and implemented.
It is unclear what action was taken in respect of these recommendations. Mr Jones and Mrs Sewell met regularly to discuss the work of the Business Improvement section but there is no evidence that the “Team Charter” for the BSU was ever formulated or implemented. The conflict apparently continued until Ms F was transferred to another supervisor in February 2009 (at Mrs Sewell’s request) and Ms W resigned in January 2009. Ms S reported to Mrs Sewell directly and was appointed to fill Ms W’s role, although this was delayed for three months.
According to Mrs Sewell, she met with Mr Jones and Mrs Coleman on 18 November 2008 to discuss the outcome of the QA. Mr Jones reportedly said that there had been no breach of the APS Code of Conduct by Mrs Sewell and that things would “remain as they were”. Mr Jones did not provide Mrs Sewell with details of the other findings or recommendations. This is not in dispute.
Mrs Sewell contracted shingles in January 2009. She was absent from work for periods from mid-January 2009 until her return to full-time work in April 2009 but continued to work part-time during February, March and April 2009. She went on holidays on 29 April 2009 for about a month and returned to work in early June 2009.
The QMS of the AEWCSPO was accredited by the ISO accreditation on 2 April 2009. On her return from leave in June 2009, Mrs Sewell was on a “Return to Work Plan” managed by external service provider, Konekt Australia Pty Ltd. Not all of the plans were produced in evidence but the plan for the period 15 June to 15 July 2009 was included in the T-documents. It was signed by Mrs Sewell on 10 July 2009 and by Mr Jones on 2 July 2009. It provided for Mrs Sewell to work 37.5 hours a week and included the following actions to “facilitate” her return to work:
1. In accordance with DMO directives, communication between parties including subordinate to occur through line of management to assist in the implementation of effective workplace interactions.
2. Effective communication strategies in relation to progress to occur on a weekly basis between Ms Sewell and Mr Glen Jones (supervisor).
3. Support systems to be advised and utilised when communicating (i.e. supportive workplace environment, recognition of work, etc).
4. Ms Sewell to work in accordance with medical recommendations (as outlined in medical certificate) of 7.5 hrs daily 5 days per week (nil overtime) to assist in reducing fatigue symptoms.
Mr Jones said he was “very supportive” of Mrs Sewell, but Mrs Sewell disagreed. According to Mrs Sewell, after her illness and while she was working reduced hours, Mr Jones would regularly assign urgent tasks to be completed on the day or would assign tasks over and above those agreed. When Mrs Sewell returned from leave (having lodged her workers compensation claim the week before commencing leave), Mrs Sewell stated that Mr Jones “ignored” the return to work plan prepared by Konekt and asked her to withdraw her claim. Mrs Sewell was not cross examined on this issue nor did Mr Jones address these matters in his statements or evidence.
On 13 August 2009 there was an incident between Mrs Sewell and Ms S which was the subject of a complaint by Ms S. Ms S had sought to utilise her flextime to leave work at noon on 13 August 2009. Mrs Sewell objected because there was an urgent project that needed to be completed. She had not approved the leave and was not aware Ms S was proposing to leave work before the presentation. There was reportedly a misunderstanding about whether this leave had been approved earlier by Mr Jones. The discussion between Mrs Sewell and Ms S was audible to her colleagues, given the open office floor plan, and Ms S became very upset. A QA was authorised and on 19 August 2009 Squadron Leader Chris Cook interviewed Mrs Sewell, Ms S and other parties who witnesses the incident.
Squadron Leader Cook noted that a breach of the APS Code of Conduct by Mrs Sewell could not be established and while he believed it was “very likely” Mrs Sewell had “at least raised her voice at the complainant and spoken in a stern manner” to Ms S, this did not constitute “unacceptable behaviour” in the circumstances. Squadron Leader Cook recommended that consideration should be given to transferring Ms S to another supervisor given the history of friction between Mrs Sewell and Ms S. If this was not viable, he recommended that Mrs Sewell’s supervisor should “consider regularly monitoring the interaction of both members, encouraging open dialogue” and “discuss and resolve any command chain confusion” with Mrs Sewell and Ms S. He also recommended that Mrs Sewell be encouraged to apologise to Ms S.
Ms S was subsequently transferred at her request. In her exit questionnaire dated 9 October 2009 Ms S noted:
I am totally dissatisfied with the management and supervisory skills of the AEWCSPO Business Improvement Manager (BIM) ... Her continual harassment of me made me feel I could no longer stay in the SPO.
A month later Mrs Sewell went off work. Her claim for workers compensation was declined on 18 November 2009 and by letter dated 29 January 2010 Mrs Sewell tendered her resignation. By the time of her resignation, Mrs Sewell had worked approximately two and a half years in the AEWCSPO.
During the time that Mrs Sewell worked in the AEWCSPO, she had at least two formal performance reviews pursuant to two Performance Agreements: one in September 2007, for the period ending August 2008 and the second dated 2 October 2008, for the period ending 8 August 2009. She had mid-cycle reviews with Mr Jones in about April 2008 (the review is not dated or signed) and on 3 April 2009. Her performance was rated as “A” (on track) at both mid-cycle reviews. In response to the “Key Expected Results” (KERs) for “Supervision” it was noted that Mrs Sewell was rated as “A”. One of the KERs was to “ensure that the work team operates as a harmonious element to achieve the business outcomes set for it”. There were no comments about remedial action to be taken by Mrs Sewell in this regard, nor were there any negative comments about Mrs Sewell’s performance. Neither party was able to locate a copy of the end of cycle reviews for the 2008 and 2009 years.
Group Captain Tammen described Mrs Sewell as “very skilful and educated in the business of quality systems” but there was “a recurring theme of unease about her ability to supervise staff”, although he agreed this issue had not been raised in Mrs Sewell’s Performance Agreement of 2 October 2008. Her role was very important to the AEWCSPO. Group Captain Tammen said that Mrs Sewell had raised concerns in July 2008 about Mr Jones’ management (and in particular her concerns he was bypassing her) and about the capacity of her staff. He discussed Mrs Sewell’s concerns with Mr Jones and “reaffirmed to him the need that wherever possible use her in the course of delegation to her staff”. He encouraged Mrs Sewell to provide guidance and direction to her staff and thought the fact that Mrs Sewell’s staff were junior was “manageable”.
CAUSATION – EVIDENCE ABOUT MRS SEWELL’S INJURY
There is dispute about when Mrs Sewell’s “injury” first arose and the cause for her adjustment disorder. Counsel for Mrs Sewell submitted that Mrs Sewell’s injury first arose in June 2007, well before the meeting of 10 November 2008, and her adjustment disorder was “as a result of” excessive workload and poor management, not administrative action. It is implicit in this submission that Mrs Sewell relies on a series of events over the period of her employment with the Department of Defence and not just events prior to 10 November 2008. While there was focus on the meeting of 10 November 2008 as being the cause for Mrs Sewell’s condition (as particularised in the reviewable decision and the Respondent’s SOFIC) it was clear from the submissions of Counsel for Comcare and the way the case proceeded, that Comcare contended Mrs Sewell’s injury was “as a result of” the meetings in November 2008 and the QA processes that followed.
The evidence is that Mrs Sewell visited her doctor twice in June 2007 and while there was some reference to work stress, it was unclear whether this related to an earlier role or her role with the AEWCSPO. Mrs Sewell consulted Dr Booth on 6 June 2007 but this was only two weeks after the commencement of her role. The clinical notes of the second consultation record that Mrs Sewell’s work was “a bit less stressful”, suggesting Mrs Sewell was experiencing general stress levels, not necessarily relating to her role with the AEWCSPO at that stage. It is not clear from the June 2007 notes whether Mrs Sewell was seeking treatment for work-related stress as opposed to a general heath check, following her admission to hospital in May 2007 for angina, or treatment for her asthma, but it is common ground that she did not take time off work or seek treatment for her anxiety until 10 November 2008.
Notwithstanding this, Mrs Sewell gave evidence that her workload was excessive. She worked 9 to 12 hour days on occasion and tried, unsuccessfully, to raise the issue with Mr Jones from at least July 2007. On 27 November 2007 Mrs Sewell sent an email to Mr Jones outlining her concerns and requesting a meeting to discuss resourcing. Ms W was subsequently appointed to the position of Business Improvement Performance and Reporting Clerk but Mrs Sewell said that this did not relieve her workload issues as Ms W was inexperienced.
Mr Jones gave evidence that the workload of Mrs Sewell’s section was “reasonably constant” and he attempted to monitor Mrs Sewell’s workload but she was a frequent “volunteer” for work. Mrs Sewell disagrees with this assessment and said she was often given ad hoc tasks by Mr Jones to complete on tight timetables.
Mrs Sewell sent a further email to Mr Jones on 16 April 2008 requesting a meeting to discuss resourcing and, in particular, the appointment of new APS5 and APS4 positions. A meeting took place but Mr Jones did not agree to provide the additional resourcing. According to Mrs Sewell, Mr Jones suggested that she delegate more to her staff.
There is evidence that Mrs Sewell and Mr Jones met on a number of occasions after April 2008 to discuss Mrs Sewell’s workload and priorities and this remained an ongoing concern for Mrs Sewell. Mr Jones denied that Mrs Sewell complained about excessive workload. According to Mr Jones, they discussed the workload of the section but he did not view these discussions as complaints. This evidence is inconsistent with the contents of the email of 27 November 2007 to Mr Jones, the email from Mrs Sewell to Mr Jones dated 16 April 2008 (in which Mrs Sewell requested a meeting to discuss “the arrangement of duties and resourcing”) and an email dated 8 February 2009 (attaching a memorandum dated 5 February 2009) from Mrs Sewell to Mr Jones, where Mrs Sewell noted that she “worked extended hours on weekdays, working over weekends as well as at home in her own time in order to complete tasks and meet required deadlines”. There is no suggestion that Mr Jones did not receive these emails.
On 6 May 2008, Mr Jones had a meeting with Mrs Sewell about a complaint that had been made about her supervisory style by Ms W. Ms W was frustrated about the nature and extent of the tasks being delegated to her by Mrs Sewell. In the meeting, Mrs Sewell expressed “shock” at the complaint and discussed what she considered to be the excessive workload of the section. It was agreed that Mrs Sewell and Mr Jones would review the current task list for the section and Mrs Sewell would “monitor her communication style when allocating tasks”. These matters were subsequently recorded in a “Record of Conversation” signed by both Mrs Sewell and Mr Jones.
Mrs Sewell gave evidence that even though she did not take time off work or seek treatment from her doctor, she was becoming increasingly stressed and anxious about her workload and the performance and attitude of her staff. She was also concerned about what she considered to be the actions of Mr Jones in undermining her authority and failing to support her attempts to manage her staff but said that she “self-managed” by using “alternative remedies”.
Mr Peter Sewell, Mrs Sewell’s husband, gave evidence that between May 2007 and December 2008, it was common for Mrs Sewell to arrive home late from work or work at home at night or on the weekend. He noticed that she was looking more drawn, her hands would shake and she was “seriously sleep deprived from around mid 2008”. He told her to seek medical assistance but Mrs Sewell said she wanted to “tough it out”.
According to reports from Dr Barry Ross dated 23 August 2010 and 3 September 2010, Mrs Sewell suffered an anxiety state from work pressure and conflicts. He acknowledged that she suffered from “other life events” and shingles, which contributed to her anxiety, but stated that “it was clear” to him that Mrs Sewell’s “main preoccupation was with the conflict with her co-workers and supervisor”. In an earlier report dated 15 June 2009, Dr Ross stated that this anxiety state began on or about 10 November 2008 but he did not attribute the cause to the meeting earlier in the day. When giving oral evidence, Dr Ross said that when Mrs Sewell came to see him on 10 November 2008, he diagnosed anxiety. She “relayed a background of events that had taken place in the workplace” and described symptoms that were consistent with anxiety such as poor sleep, poor concentration and a “visible rapid, fine tremor”. He did not note when Mrs Sewell said this had commenced, but his recollection was that “it had been going on for some time”. Dr Ross has continued to treat Mrs Sewell and last saw her in late August 2011. According to Dr Ross she “still had symptoms of an ongoing anxiety state”.
After Mrs Sewell made her workers compensation claim, she was referred by Comcare for assessment to Dr Zoltan Zsadanyi, consultant psychiatrist, and Dr Lewis Pierides, consultant occupational physician. Dr Zsadanyi provided a report dated 9 October 2009. He concluded that Mrs Sewell had work-related adjustment disorder with anxiety symptoms, and while he was unable to provide a precise date when she first suffered identifiable symptoms, he assessed this to be “most probably … in the latter half of 2008”. Dr Pierides provided a report dated 4 December 2009. He agreed with the diagnosis of Dr Zsadanyi and did not consider that Mrs Sewell’s symptoms at the time of examination related to a post-viral fatigue condition resulting from her shingles. Dr Pierides observed that Mrs Sewell was mentally fragile and she would not be able to return to work until the work-related stress issues were resolved.
The Tribunal was provided with a report from Dr Alex Apler, forensic psychiatrist, dated 6 April 2011. According to Dr Apler, Mrs Sewell had an adjustment disorder and she remained affected by the disorder at the time of his assessment, which was on 30 March 2011. He also reported that it was “probable that stress in the workplace contributed to the onset of shingles”. He did not identify the date when Mrs Sewell became affected by the adjustment disorder but noted:
Ms Sewell became increasingly anxious while employed at the Department of Defence, in [the] context of mounting volumes of work, and insufficient support... Her condition was further exacerbated by the conflict with her boss, and an investigative process which, for her, lacked certainty and exacerbated her sense of lacking control.
The Tribunal was also provided with reports from Dr John Champion, psychiatrist, dated 28 January 2011 and 13 June 2011. In Dr Champion’s opinion, Mrs Sewell suffered an anxiety state that was most likely to have been an adjustment disorder with anxious mood resulting from her counselling on 10 November 2008. She was “completely recovered” from any adjustment disorder and any ongoing symptoms were likely to be a result of post viral syndrome, sometimes referred to Chronic Fatigue Syndrome. According to Dr Champion, Dr Ross and Dr Apler failed to place sufficient weight on Mrs Sewell’s “obsessional personality structure” as a basis for what he considered to be a “significant overreaction to normal reasonable and legitimate workplace procedures”.
Both Dr Apler and Dr Champion gave evidence. One of the key differences between Dr Apler and Dr Champion was when Mrs Sewell’s psychiatric condition arose and the cause for her injury.
Dr Apler gave evidence that Mrs Sewell developed a psychiatric disorder “through 2007 and into 2008”. He also said that “an investigative process that lacks … certainty would exacerbate her symptoms”. He acknowledged Mrs Sewell’s “perfectionist, obsessional traits” in his report and during cross examination. He said it was not uncommon for a person with an adjustment order to delay seeking treatment. In his view there were a number of factors that led to Mrs Sewell’s condition, although he agreed that the “investigations” (presumably meaning the QA processes) contributed to her injury.
Dr Champion formed the view there was no indication that Mrs Sewell had a diagnosable psychiatric condition prior to 10 November 2008, largely because she did not seek and there was “no need” for medical intervention prior to this date. His view was informed by his assessment of her “obsessional personality structure” and what he assessed as her overreaction to “normal reasonable and legitimate workplace procedures”.
Under cross examination, Dr Champion agreed that if Mrs Sewell had “major” physical symptoms of sleeplessness and shaking hands prior to 10 November 2008, meaning over and above minor disturbances, these could be indications of a psychiatric disorder. Dr Champion said that the circumstance described to him by Mrs Sewell in their consultation was “one which may have caused minor irritation as a normal reaction, in my view, judging what a normal reaction should be, but certainly not one which would be likely to precipitate the type of overreaction which would call for a general practitioner to prescribe a medication”. Dr Champion’s report contains a summary of events but it is unclear the extent to which he had a detailed understanding of the history. He certainly did not have the benefit of all of the evidence available to the Tribunal and agreed that his view about whether administrative action was reasonable or unreasonable in this case was not within his area of expertise. Dr Champion said that any administrative action was likely to cause Mrs Sewell anxiety because of her personality. This is a matter on which Dr Apler and Dr Champion agree.
The other issue in respect of which Dr Apler and Dr Champion disagreed was whether anxiety could have predisposed Mrs Sewell to contracting shingles. Dr Apler said there was some medical research that supported this proposition. However, he also said that while fatigue caused by post-viral syndrome may contribute to the psychological symptoms Mrs Sewell experienced, “by and large” those symptoms would stem from the adjustment disorder. Dr Champion said there was no scientific proof about the link between anxiety and shingles, only a finding that further research was justified but agreed Mrs Sewell’s shingles would have complicated her adjustment disorder. According to Dr Champion, “the adjustment disorder would have given Ms Sewell less tolerance for her shingles, and the shingles would have given Ms Sewell less tolerance for problems she perceived to be occurring in the workplace”.
CAUSATION- FINDINGS
Section 7(4) provides that an employee shall be taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when the employee first sought medical treatment for the disease, or aggravation, or when the disease or aggravation first resulted in the incapacity for work or impairment of the employee, whichever happens first. While s 7(4) is a deeming provision as to when the date of an injury occurred, it is not determinative of issues relating to causation of an injury, as noted by Heerey J in Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289 at 293 as follows:
In my opinion, s 7(4) is to read as applying to any employee who has otherwise established a right to compensation in respect of incapacity from an “injury” in the nature of a disease. Such a right is determined elsewhere in the Act, namely by s 14.
As the AAT pointed out, s 7(4) can have useful work to do by providing a certain starting point in the case of diseases, some of which may be of gradual development, to enable the calculation of such matters as entitlements to benefits, or the commencement date from which a statutory period for making an election or lodging a claim should run.
It is therefore still necessary to review the evidence to form a view about whether there is a causal connection between an injury and work-related incidents to establish whether the injury is compensable under s 14. It is also relevant to consider the causal connection in the context of determining whether an injury falls within the exclusory provision and, in particular, whether the injury was “as a result of” reasonable administrative action.
In this case, there is evidence that Mrs Sewell saw her doctor in June 2007 but there is insufficient evidence to suggest that she sought treatment about stress relating to her work at the AEWCSPO at this time. Mrs Sewell therefore does not get the benefit of s 7(4) but this does not mean she did not sustain an injury until 10 November 2008, when she sought treatment, or that the cause of Mrs Sewell’s adjustment disorder was the communication on that day from Mr Jones about the complaints from her staff.
There is evidence that Mrs Sewell became increasingly anxious about work and by 10 November 2008 she was already suffering symptoms of anxiety. She cited workload and conflict with her staff and Mr Jones as the cause of her anxiety. This evidence is supported by her husband. It is also supported by Dr Zsadanyi and the history she apparently gave Dr Ross.
Dr Champion identified the meeting on 10 November 2008 as the cause of Mrs Sewell’s adjustment disorder but this is not supported by the evidence from Dr Apler, Dr Zsadanyi and her treating doctor, Dr Ross.
Based on the preponderance of evidence, we find that it is more likely than not that Mrs Sewell’s adjustment disorder was caused by a combination of factors, including concern about her workload and perceived lack of support from Mr Jones. The disorder developed over time, commencing by about mid-2008 and aggravated by the two QA processes conducted in November 2008 and August 2009. It is not necessary for us to determine whether or not shingles may be caused by anxiety because there is agreement that post-viral syndrome from Mrs Sewell’s shingles may have interacted with and/or complicated her adjustment disorder. This does not alter the fact that Mrs Sewell had a diagnosed psychiatric condition of adjustment disorder that was contributed to a “significant degree” by her employment in the AEWCSPO.
The question remains whether Mrs Sewell’s injury, given our findings about the cause, is compensable under s 14 of the Act. An injury will result from an excluded cause if that cause was one of several that lead to the development or aggravation of the injury (Hart v Comcare (2005) 145 FCR 29) but the cause must be material: Re Lynch and Comcare (2010) 114 ALD 394 and Re KRDV and National Australia Bank Ltd (2011) 125 ALD 311; [2011] AATA 210.
It is clear from the evidence of Mrs Sewell that she felt she was not being supported by Mr Jones and was being undermined by him. This caused her anxiety. Mrs Sewell referred to a series of events and interactions with Mr Jones, including the meetings and QA conducted in November 2008 and the QA conducted in August 2009, as the source for her anxiety. This evidence is consistent with the history she related to doctors and is supported by the medical evidence. As such, we are of the view that the meetings in November 2008 and the QA processes conducted in 2008 and 2009 materially contributed to Mrs Sewell’s adjustment disorder.
It is common ground that the two QA processes constituted “administrative action” for the purposes of s 5A(2). The question therefore arises whether they were reasonable and taken in a reasonable manner.
REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER?
What is “reasonable” will depend on the circumstances of each case but must be assessed objectively. Dr Campbell, Member, encapsulated the concept of reasonableness well in Re Georges and Telstra Corporation Ltd [2009] AATA 731, when he noted [at 22]:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.
Dr Campbell also addressed the issue of what it means to take action “in a reasonable manner” [at 23] as follows:
... in my opinion the fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further, the circumstances of the individual that could have become known by simple enquiry should be considered. I would also observe that administrative action in an organisation is rarely taken in isolation of a context that creates the need for administrative action. Such context may be derived from factors either external and/or internal to the organisation and the administrative action taken that relies upon such circumstances must document such, in order that administrative actions that flow appear to be grounded on detailed considerations. Similarly issues of timeliness and scope of the administrative action will be an issue for assessment. I conclude that, while the assessment of “in a reasonable manner” relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee are usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instructions that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action is taken.
We agree with this formulation. It is therefore relevant to consider all of the circumstances when determining whether administrative action was “reasonable administrative action taken in a reasonable manner”, including, in this case, the history between Mrs Sewell and Mr Jones and between Mrs Sewell and her staff, the nature of Mrs Sewell’s role, the organisational instructions about complaints handling, the manner in which complaints were managed and communicated and whether this was done in accordance with those instructions, the operational requirements of the AEWCSPO and the circumstances of Mrs Sewell and her staff (and the extent to which this was known or should have been known to management). As observed by Professor Creyke, in Re Wilson and Comcare [2010] AATA 396, “reasonable action does not have to be perfect, provided it is ‘tolerable and fair’”.
Mr Jones gave evidence that after the meeting of 6 May 2008 Ms W approached him again in early November 2008 about Mrs Sewell’s management style. He convened a “Communication Session” between them on 5 November 2008 and encouraged them to discuss their issues and concerns. Ms W raised concerns that Mrs Sewell was “micromanaging” her and this was unnecessary. Mrs Sewell gave evidence that she felt “shocked and humiliated” during the meeting of 5 November 2008 as Mr Jones allowed Ms W to make a number of unsubstantiated assertions and did not give her opportunity to respond to the issues raised. She was only given 20 minutes’ notice of the meeting by email and record of the meeting prepared by Mr Jones did not reflect her recollection.
At the meeting of 5 November 2008, Mr Jones arranged a further session for the following week but in the meantime was advised by Mr Evans that both Ms W and Ms F had complained to him that Mrs Sewell had spoken to them regarding a 360 degree exercise that Mrs Sewell had completed as part of a management course earlier in the year. The concern was that there had been a “betrayal of confidence” in respect of information provided by them about Mrs Sewell as part of their 360 degree interviews.
Mr Jones was concerned about this and spoke to Mrs Sewell about the complaints on the morning of 10 November 2008. On his account, he said words to the effect:
Accusations have been made by [Ms W] and [Ms F] although I am not across the entire issue at this stage. They have complained about your management style and your use of an inappropriate tone with them. They have raised some concerns about comments you made during the 360 degree activity you undertook.
I need to investigate the situation further. However, the situation is of concern.
Mrs Sewell denied that Mr Jones provided her with details about the complaints from Ms W and Ms F when he spoke to her on 10 November 2008, part from “they are serious allegations”. Mrs Sewell stated that she could not concentrate after this conversation, so she made an appointment to see Dr Ross and left for the day.
Mrs Sewell came into the office the following day and attended two “Communication Sessions”: the first involving Ms W and the second involving Ms F. There is little evidence about Mrs Sewell’s feelings about the first session and much of Mrs Sewell’s statement focussed on the second session. According to Mrs Sewell she felt outnumbered and uncomfortable when she walked into the meeting with Ms F, Mr Jones, Mr Evans and Mrs Coleman. She was not offered a support person. This evidence was not challenged. Mrs Sewell stated she was not given an opportunity to respond to the issues raised and Mr Jones’ diary notes of the meeting did not reflect her recollection.
On 13 November 2008, Mr Jones called Mrs Sewell into his office and advised there would be a QA conducted by Mr Kiem in the afternoon. Mrs Sewell complained about the lack of notice and researched information about the use of QAs. She became upset because it was her understanding for her research that “QAs were conducted for serious allegations such as criminal conduct”. She attended the interview with Mr Kiem and he explained that he was really just seeking information. Mr Kiem found no breach of the Code of Conduct and his findings were favourable to Mrs Sewell. She was not given this favourable feedback at the time.
Counsel for Mrs Sewell contended that the QA was unwarranted, was conducted without sufficient notice and, even though the outcome of the QA was favourable to Mrs Sewell, nothing changed. The meetings and QA of November 2008 did not amount to “reasonable” administrative action and they were not affected in a “reasonable manner”.
Counsel for Comcare contended that a QA was entirely appropriate in the circumstances. It was not an investigation, but a fact finding exercise. Mr Jones had attempted to resolve matters but the issues between Mrs Sewell and her staff were ongoing. The procedures in relevant Defence Instructions PERS 35-3 were observed.
There were a series of meetings in November 2008, culminating in the QA conducted on 13 November 2008. These meetings could each be categorised as “administrative action” because they were in the nature of counselling sessions between Mrs Sewell and her staff. The meeting on 10 November 2008 was to advise Mrs Sewell about complaints made against her in advance of the sessions planned for the following day. This would be an action taken “in connection” with the foreshadowed counselling sessions.
Given the ongoing issues between Ms W and Mrs Sewell, it was appropriate for Mr Jones to convene a “Communication Session” on 5 November 2008, although he could have given more notice and it would have been more sensible to speak personally to Mrs Sewell about the proposed meeting given she was a senior staff member in charge of the section of the Business Improvement Unit and the purpose of the meeting was to discuss and resolve a complaint about her. Mrs Sewell said she was not given an opportunity to respond to the claims made by Ms W during the meeting. However, it is not clear from the record of the meeting whether this was the case. Issues were raised about “micromanagement” and personal telephone calls, both of which Mrs Sewell reportedly denied. Mrs Sewell’s complaint was that Ms W did not provide details of the micromanagement. We agree that Ms W should have been pressed on this issue as if the issue was going to be resolved it would be crucial for Mr Jones, as the supervisor, to understand and assess the seriousness of the complaint. Although not perfect, this action by itself, was not unreasonable.
Mrs Sewell also takes issue with the discussion with Mr Jones on 10 November 2008. It was appropriate for Mr Jones to raise the further complaint with Mrs Sewell on 10 November 2008 and while there is a dispute as to how the matter was raised, even on Mr Jones’ account, his discussion was unnecessarily blunt. He used the word “accusations” and foreshadowed that the “situation [was] of concern” but provided no more detail and was not prepared to discuss the issue at the time.
On objective analysis, the use of such language and the apparently abrupt manner in which it was conveyed, was likely to communicate to Mrs Sewell that this was a very serious matter about which he had already formed a negative view. The statement is particularly incongruous when the history of the matter is considered. The complaints were about Mrs Sewell’s management style and her communication skills. These issues had been raised before and there was no suggestion that Mr Jones considered it appropriate to counsel Mrs Sewell after the meeting on 6 May 2008. The complaint about Mrs Sewell communicating information about her staff’s 360 degree feedback warranted further investigation but it also raised an issue about whether and how such information would have become available to Mrs Sewell. This was an organisational issue and, if correct, would have raised other issues of concern. As it turned out, there was a misunderstanding about this issue that was ultimately considered and resolved by Mr Kiem.
This discussion upset Mrs Sewell and she sought treatment from Dr Ross in the afternoon. The action taken to raise the complaints with Mrs Sewell was reasonable but it was not executed in a reasonable manner in the circumstances and caused Mrs Sewell unnecessary anxiety.
Convening the Communication Sessions on 11 November 2008 was appropriate in that the complaints had escalated and focussed on a new issue about whether 360 degree confidentiality had been breached. Mr Jones’ approach to deal with these issues as quickly as possible was understandable. However, the execution was flawed. Mr Jones was on notice that Mrs Sewell was upset and anxious about the complaints, yet she was not offered the opportunity to have a support person. She felt “outnumbered”, which is not surprising given Ms F had a support person in attendance, being Mr Evans, and Mrs Coleman was present as an observer, which would have added to the formality. It is relevant to note that Mr Evans was Mr Jones’ deputy and this may have added to Mrs Sewell’s sense that the process was unfair and weighed against her. Mrs Sewell said she was given little opportunity to respond to issues raised by Ms F and this added to her frustration. Mr Jones’ diary notes of the meeting accords with Mrs Sewell’s evidence about the meeting in that a significant majority of the notes record matters apparently discussed by Ms F, with a note “Ingrid – tried to respond in a summary level”.
Faced with these difficulties, Mr Jones consulted with Group Captain Tammen, who directed that a QA be undertaken. In our view, directing the QA was reasonable in the circumstances and in line with Defence Instructions PERS 35-3 No. 5 given the complaints made. We accept the submission of Comcare that the QA process was not an investigative process. Mrs Sewell was in error when she formed the impression that the QA was a possible precursor to criminal action, although her uncontradicted evidence is that she was given little time and no explanation about the purpose of the QA until the interview commenced. What she knew about the QA process was the result of her own inquiries.
With a notable exception, the QA process was undertaken in accordance with Defence Instructions PERS 35-3 No. 5. However, under the Instructions, the respondent is to be advised of the “outcome of the inquiry”. Mrs Sewell was advised that Mr Kiem had not found any breach of the Code of Conduct but she was not advised of the recommendations or given the positive feedback about her role. While it is not clear from Defence Instructions PERS 35-3 whether “outcome” includes these other matters, Mr Kiem dismissed the complaints of micromanagement and accepted Mrs Sewell’s attempts to “hold the team accountable for their collective responsibilities”. This had been an issue raised by Mrs Sewell with Mr Jones in defence of previous complaints by Ms W and Ms F. She had been subjected to four “Communication Sessions” about her management style over the six months leading up to the QA and Mr Jones was aware she was anxious about the complaints. He was also aware she had visited her doctor after their discussion on 10 November 2008 yet he gave her no reassurance that she would be supported.
The recommendations were not implemented and there was no follow up discussed about how to resolve what Mr Kiem had identified as at an atmosphere of “dysfunction” that was “impacting on the wellbeing of all involved members”.
We therefore find that the actions taken by Mrs Sewell’s supervisors in November 2008 were administrative actions. In some instances the actions themselves were reasonable but in all cases, both individually and collectively, they were not executed in a reasonable manner. This caused Mrs Sewell significant distress and materially contributed to her adjustment disorder.
After Ms W resigned and Ms F was transferred, Ms S reported directly to Mrs Sewell from April 2009. Mrs Sewell gave evidence that Ms S was very inexperienced and in her view Ms S had been “promoted above her capacity”. Within two weeks of Ms S’s promotion to the acting APS3 role, Mrs Sewell advised Mr Jones that she did not believe Ms S was able to perform the requirements of the role. He reportedly responded that this was a developmental opportunity and she should “do what you can” but in discussion with Mrs Sewell in early June 2009 after her return from leave, agreed Ms S needed “detailed guidance”. Mr Jones extended Ms S’s acting role for three months and according to Mrs Sewell, this was without consultation with her. Ms S continued acting in the role of the Business Improvement Performance and Reporting Clerk until 7 September 2009.
On 13 August 2009, the Business Improvement Unit was due to conduct a presentation to staff on a project the Unit was undertaking in relation to “standardisation”. On 5 August 2009, Ms S requested that she be allowed to leave early on 13 August 2009 but Mrs Sewell said this would not be possible as Ms S’s presence was required but she could leave after the presentation at 3:00 pm. Mrs Sewell had a management meeting with Mr Jones on 10 August 2009 and one of the matters discussed was the presentation. Mr Jones asked whether Ms S needed to attend and Mrs Sewell responded that she needed Ms S’s assistance and would prefer she was there. There was no further issue raised about this. Ms S was on sick leave on 11 and 12 August 2009. According to Mrs Sewell, she approached Ms S at about 11.50 am on 13 August 2009 to discuss the presentation but Ms S informed her she was leaving at 12:00 pm and her leave had been approved by Mr Jones. This discussion took place in the open plan work area. Ms S became upset, spoke to Mr Evans in Mr Jones’ office and then left the workplace. Mrs Sewell completed the presentation without Ms S. Mr Jones was not in the office at this time and was away in Canberra.
Mrs Sewell discussed this incident with Mr Jones when he returned on the following Monday, 17 August 2009. She raised issues of concern about Ms S’s performance but Mr Jones did not raise any issue with Mrs Sewell at that stage. Mrs Sewell also received an email of support from Group Captain Tammen on this day to the effect “I’m keeping an eye on your team and am pleased with your resolve to manage Emma’s attendance – you have my support for a firm but constructive approach”. Group Captain Tammen also gave evidence it was “an important let down” and he would expect that Ms S “would have received some counselling” about the need to attend the presentation.
Ms S returned to work on 18 August 2009, after taking approved leave days, and on 19 August 2009, WGCDR Greg Hoffman appointed Squadron Leader Chris Cook to conduct a QA in relation to the incident. Squadron Leader Chris Cook conducted interviews on 19 August 2009 and prepared a report for Mr Jones on 20 August 2009. It is unclear how much notice Mrs Sewell was given about this QA but according to Mrs Sewell she was told by Squadron Leader Chris Cook during the interview that the purpose of the QA was to determine whether the APS Code of Conduct had been breached. When she asked “by whom” Squadron Leader Chris Cook reportedly said “anybody”.
Squadron Leader Chris Cook’s findings are referred to earlier in this decision but it is relevant to note that that Squadron Leader Chris Cook recorded Mrs Sewell “appeared to have become emotionally affected” by the discussion with Ms S. He also noted:
[Mrs Sewell] feels she is sometimes bypassed in the command chain in regards to management of her staff. This contributed to the frustration she appears to have experienced when somebody higher up the chain allegedly approved the Complainant’s flex-off time without her approval.
Mr Jones advised Mrs Sewell about the outcome of the QA on 21 August 2009. The Record of Conversation prepared by him of the discussions included the following:
I am very concerned that similar issues were identified in the previous incident with [Ms W] and [Ms F]. I acknowledge that the previous QA did not identify unacceptable behaviour of a Code of Conduct issue however this incident involves similar allegations about Ingrid’s management/supervisory styles regarding communicating styles and tones and general micromanagement issues.
Due to the reoccurring nature of the allegations, I am considering this as a performance issue.
Mrs Sewell was informed Ms S would remain as Business Improvement Performance and Reporting Clerk but would report to Mr Evans. Mrs Sewell gave evidence that she was extremely distress following this conversation and “puzzled and humiliated” by the new reporting arrangements.
Directing the QA, particularly as Mr Jones was absent from the office during the incident and Ms S reportedly left the office crying, was not unreasonable. What was unreasonable was failing to address the issue that Ms S left the office, notwithstanding Mrs Sewell’s express wish that she stay, based on the approval for leave given allegedly by Mr Jones (not Mrs Sewell) and apparently not conveyed to Mrs Sewell. This issue emerged during the interview process and Group Captain Tammen was aware of this when he sent his email of 17 August 2009. Mr Jones denied he had given approval but it is clear from the notes of interview of Squadron Leader Chris Cook that Ms S was of this view and told Mrs Sewell and Mr Evans that this was the case. Squadron Leader Chris Cook interpreted this as a “misunderstanding”. In the circumstances, it is surprising that this issue was not the subject of the brief. It is also relevant that Squadron Leader Chris Cook identified “command chain confusion” as a potential issue for the future.
What was also unreasonable was the message conveyed to Mrs Sewell by Mr Jones about the outcome of the QA. It did not accurately reflect Squadron Leader Chris Cook’s findings. Moreover, it was inappropriate for Mr Jones to raise old issues about Mrs Sewell’s management style and micromanagement when they had been dealt with in the previous QA, primarily in Mrs Sewell’s favour. We accept that Mrs Sewell was “extremely distressed” after the conversation with Mr Jones on 21 August 2009 and considered it unfair that Ms S’s conduct was not addressed.
When the QA process of August 2009 is considered in its entirety, including the discussions leading up to the incident and communication of the outcome, it is our view that this did not constitute “reasonable administrative action taken in a reasonable manner”.
In summary, we accept Mrs Sewell’s evidence that she felt both QA processes were unfair and contributed to her sense that she was not being supported by management. Objective analysis of the incidents that lead to the QAs and how they were managed, is consistent with her view. In his report of 13 June 2011, Dr Champion describes Mrs Sewell’s response as a “significant overreaction to normal reasonable and legitimate workplace procedures”. This is not borne out by the evidence.
We found Mrs Sewell to be a truthful and thorough witness. She had a good recollection of events and in many cases her recollection was corroborated by other evidence. Her evidence was not exaggerated and she was considered in her responses. There was little direct conflict between her evidence and the evidence of Mr Jones and Group Captain Tammen, except on one material aspect, which was ultimately very significant because it was the root of underlying tensions between Mrs Sewell, her staff and Mr Jones.
Mrs Sewell said that her workload was excessive, she did not have sufficient experienced support and she complained about this. Mr Jones and Group Captain Tammen did not agree her workload was excessive and said that this could have been managed by Mrs Sewell readjusting priorities and delegating appropriately to more junior staff. Mr Jones denied Mrs Sewell complained and both Group Captain Tammen and Mr Jones said issues were discussed with Mrs Sewell and resolved as they arose. Group Captain Tammen conceded Mrs Sewell’s staff were inexperienced but he believed this is something that Mrs Sewell could overcome. He also agreed there were some delays in filling vacancies within the AEWCSPO, which he attempted to address once he took over command.
We accept the evidence of Mrs Sewell that she had a heavy workload. This evidence was supported by the task lists produced at the hearing and apparently discussed with Mr Jones and the hours worked by Mrs Sewell, particularly in her first 18 months. We accept the evidence of Mrs Sewell that her staff were inexperienced in ‘Business Improvement’ and would have needed a high level of supervision and guidance and this would have been time consuming. This was not disputed. We also accept that Mrs Sewell complained about this to Mr Jones and Group Captain Tammen. Insofar as Mr Jones, denied this, we do not accept his evidence. Group Captain Tammen agreed Mrs Sewell discussed concerns about her workload, staff and Mr Jones with him but believed he either addressed those issues or they were resolved. It is possible Group Captain Tammen did not appreciate Mrs Sewell’s anxiety at the time. Notwithstanding this, it is clear from the events from November 2008 until Mrs Sewell resigned in November 2009 that these issues were not resolved and remained an ongoing cause for anxiety. Group Captain Tammen conceded “I wouldn’t have regarded it was one of my successes” when discussing the management of various issues that had arisen out of the Business Improvement Unit.
Mr Jones said Mrs Sewell was a “volunteer” for additional work. Mrs Sewell said she had no choice, there were no other staff to take on the work. This is more likely than not to have been the case, although it is also possible Mrs Sewell and Mr Jones did not communicate well on these issues and were at ‘cross purposes’.
This is the background against which the meetings of November 2008 and the QAs in November 2008 and August 2009 should be assessed.
CONCLUSION
Mrs Sewell was appointed to a senior role in May 2007 as the Manager of the Business Improvement Unit of the AEWCSPO. Her duties included the development and implementation of the QMS for the AEWCSPO. This was an important role. Mrs Sewell was employed for two and a half years in the role and during this time she either had no staff or was allocated what she considered to be inexperienced staff to assist. In the time that she was in the role, Mrs Sewell secured ISO certification and developed a number of other governance systems and programs. This was the case notwithstanding she was working part-time, on restricted duties or sick leave for a significant part of the last 12 months of her employment. She was rated as “on track” to meet her KERs (there was no evidence to the contrary) and had an intense work ethic. She sought to manage her staff and was no doubt demanding, although there is evidence she was under pressure to complete work projects and tasks allocated. We accept that some of this pressure was created by Mrs Sewell’s own obsessional personality. Mrs Sewell’s staff complained about her management style on a number of occasions but their complaints were not substantiated. Mrs Sewell and Mr Jones did not have a good working relationship. Mr Jones was frustrated by Mrs Sewell’s requests for more resources and the complaints of her staff. Mrs Sewell felt unsupported and undermined by Mr Jones. The fact that Mrs Sewell’s staff were inexperienced added to the tensions between her and her staff and her and Mr Jones.
Mrs Sewell was experiencing increasing levels of anxiety during 2008 and by mid to late 2008, had developed an adjustment disorder with anxious mood. This was the context in which the two QAs were conducted. The QAs, and in particular the communication of the outcome, were not “reasonable administrative action taken reasonably” and materially contributed to her injury, or alternatively the aggravation of her injury, being the adjustment disorder.
Having regard to these findings, the decision under review to deny liability for adjustment reaction with anxious mood is set aside and substituted with the decision that Comcare is liable to pay compensation to the Applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern and Air Vice-Marshal (Dr) T K Austin AM, Member.
........[sgd]................................................................
Associate
Dated 30 May 2012
Dates of hearing 14-16 November 2011 Date final submissions received 5 December 2011 Counsel for the Applicant Mr T Willis Solicitors for the Applicant Duncan Cotterill Lawyers Counsel for the Respondent Miss R Henderson Solicitors for the Respondent Australian Government Solicitor
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