INGRID SEWELL and COMCARE

Case [2012] AATA 320

[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, Member
Date 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 38

Re Wilson and Comcare [2010] AATA 396

REASONS FOR DECISION

Senior Member J L Redfern
Air Vice-Marshal (Dr) T K Austin AM, Member

30 May 2012

  1. 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.

  2. 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.

  3. 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

  4. 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)…

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INGRID SEWELL and COMCARE [2012] AATA 320
Case
[2012] AATA 320
Decision Date

CaseChat Overview and Summary

Ingrid Sewell sought compensation from Comcare for an adjustment disorder which she claimed was caused by her employment with the Commonwealth. The key issue before the Court was whether the condition was "as a result of reasonable administrative action taken in a reasonable manner." This required determining whether Mrs Sewell's condition was a result of the meeting held on 10 November 2008 and the subsequent quality assurance processes, and if so, whether these constituted reasonable administrative action taken in a reasonable manner. Mrs Sewell worked in the Australian Public Service since 1999 and was appointed as Business Improvement Manager of the Airborne Early Warning and Control Systems Program Office in May 2007. Her role was to develop and implement a quality management system for the office, among other tasks. There were concerns about her ability to supervise staff, though these were not formally raised in her performance agreement. In July 2008, she raised concerns about her direct supervisor's management and the capacity of her staff. Despite these issues, she secured ISO certification and developed governance systems. Her relationship with her supervisor was strained, and her staff found her management style demanding.

The Court found that Mrs Sewell's adjustment disorder with anxious mood was not solely due to excessive workload and poor management but was also significantly influenced by the unreasonable conduct of the quality assurance processes and their outcomes. The Court concluded that the quality assurance processes, particularly the communication of their outcomes, were not reasonable administrative action taken in a reasonable manner and contributed materially to her injury. Accordingly, the Court set aside the decision denying liability and ordered Comcare to pay compensation to Mrs Sewell.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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