Jack Hoffman and Comcare
[2015] AATA 53
•30 January 2015
[2015] AATA 53
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4255
Re
Jack Hoffman
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 30 January 2015 Place Canberra The decision under review is affirmed.
...............................[sgd].........................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Adjustment reaction with mixed emotional features – Whether applicant’s condition arose as a result of reasonable administrative action taken in a reasonable manner –Condition a result of reasonable administrative action taken in a reasonable manner – Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss. 5A, 5B, 14
REASONS FOR DECISION
Deputy President K Bean
30 January 2015
The applicant, Mr Hoffman, was employed as a digital systems technician at the Canberra Deep Space Communication Complex (CDSCC) Tidbinbilla, between 2002 and 2012. He enjoyed his work and was good at the technical aspects of his job.
Unfortunately however, for reasons which will be canvassed in detail later in these Reasons, from at least 2010 onwards certain disciplinary issues arose with respect to his employment. Believing that his employment at the CDSCC may otherwise be terminated for disciplinary reasons, Mr Hoffman resigned on 6 July 2012.
Subsequently, on 28 November 2012, he also lodged a claim for compensation[1] in respect of his ‘mental state’[2]. That claim was rejected by Comcare and upon reconsideration, on 3 June 2013, a delegate affirmed the decision to deny compensation liability with respect to Mr Hoffmann’s claim.[3]
[1] T6/27.
[2] T6/29.
[3] T56/532.
On 23 August 2013, Mr Hoffman filed an application for review by this Tribunal of that decision, giving rise to these proceedings.
I will first provide an overview of the relevant and uncontroversial facts, before identifying the issues and discussing these by reference to the evidence before me.
BACKGROUND FACTS
For the purposes of this matter, the most relevant events commenced in 2010.
There is no dispute between the parties that on 19 May 2010, Mr Hoffman was given a written warning (the first written warning) by Dr Lewis Ball, Acting Chief, CSIRO Astronomy and Space Science.[4] That warning related to matters described as follows:
The complaint specifically relates to your use of loud and inappropriate language to both your supervisor and co-workers, which they clearly found to be distressing, insulting and denigrating. In addition, you refused to follow a lawful direction given by your supervisor to complete designated work.[5]
The letter also stated:
Your recent behaviour and insulting language constitute serious misconduct because they directly challenge the authority of your supervisor and affect the health and well-being of your colleagues. It also clearly reflects a breach of the Agreement of Good Faith noted above.
I hereby direct you to immediately cease this inappropriate behaviour. The letter constitutes a first written warning as specified in the CDSCC Combined Unions Certified Agreement 2005. Any further incidents of this nature will result in further disciplinary action. I also remind you that serious or wilful misconduct can lead to dismissal without notice.
[4] In 2010, the CDSCC came under the auspices of the CSIRO.
[5] T32.5a/200.
There is further no dispute that on 8 March 2011, Mr Hoffman was issued with a second written warning by Dr Phil Diamond, the then Chief of CSIRO Astronomy and Space Science. This warning included the following statements:
This Second Written Warning specifically relates to your ongoing use of inappropriate language to your supervisor, managers and co-workers, and your continual failure to follow lawful directions. In addition to your overall performance issues, you have quickly become an administrative liability in terms of the time required to administer the poor standards of your professional relationships at CDSCC.
…
Your behaviour and inappropriate communications constitute serious misconduct because they directly challenge the authority of your supervisor and affect the health and well-being of your colleagues. They also clearly reflect a breach of the Agreement of Good Faith noted above.
I here direct you to immediately cease this inappropriate behaviour. This letter constitutes a Second Written Warning as specified in the CDSCC Combined Unions Certified Agreement 2005.[6]
[6] T32.7/227 - 228.
Mr Hoffman also does not dispute that on 5 May 2011, the Human Resources Manager of the CDSCC, Ms Linda Francis, spoke with him about allegations that he had been seen in his employer provided vehicle entering the ‘McDonalds drive thru’ on his way home from work. The reason this was raised with Mr Hoffman was that Ms Francis regarded any such behaviour as a breach of the CDSCC Fleet Transport Policy (the Policy). That Policy, which was in the same terms at all relevant times, relevantly provided that:
CSIRO prohibits the private use of CDSCC vehicles. Authorised use includes where an officer is away from home on business, transferring a vehicle from one driver’s residence to another driver’s residence or moving a vehicle at an employee’s place of residence for access.[7] (emphasis in original)
[7] T32.6c/221.
Quite some time after that discussion, in May 2012, further issues arose relating to Mr Hoffman’s compliance with the Policy. In particular, Mr Hoffman found himself in the situation of needing to use his work vehicle for a private purpose, namely to search for his missing dog. He attempted to obtain permission from his immediate supervisor, Mr Stokker, to use the vehicle for this purpose, however Mr Stokker did not feel able to give that permission. In the event, he nevertheless used the vehicle to look for his dog.
This gave rise to a meeting on 22 May 2012, at which Mr Hoffman, Ms Francis, Dr Ed Kruzins (Director of the CDSCC) and Mr Leonard Ricardo (Operations Manager of the CDSCC), were in attendance. The notes made of that meeting by Ms Francis included the following:
I asked Jack if he was familiar with CDSCC transport policy, he indicated he was. I specifically asked if he was aware that private use of the vehicle was prohibited, he said he was which was why he had asked his line manager if he could use it. I reminded Jack that there was not capacity for permission to be granted and he stated that he was aware of previous instances where staff had been granted use. He was unable to specify any instances but did agree that this had not occurred since I had been HR Manager and therefore had not occurred since the transport policy had been reviewed by me four years ago. He indicated that he had probably not refreshed his knowledge of the transport policy when the update was notified to staff.
I reminded Jack that private use for any purpose was prohibited and that he was not to ask again. I advised Jack that it was inappropriate to apply pressure on his Team Leader to grant permission to breach policy and that any further instances would be treated as failure to follow a lawful direction.
…
I reminded Jack that he was not to use the vehicle to drive thru McDonald’s on his way home and reminded him we had had that discussion previously. Jack assured me he remembered our previous discussion and that he was aware he was not to do this and that he had not been to McDonalds on the way home since our discussion.[8]
[8] T32.9/231.
However, shortly after this meeting, on 28 May 2012, two other employees came forward claiming to have seen Mr Hoffman in his work vehicle at the ‘drive thru’ at McDonalds close to his home. They each provided statutory declarations to this effect. This resulted in a further meeting being convened, at short notice, early on the morning on Tuesday, 29 May 2012. There is no dispute that Mr Hoffman also had a dental appointment on that morning, and there was very little time available for this meeting.
In any event, at the meeting, Mr Hoffman was given a ‘Notice’ which relevantly provided as follows:
It is alleged that, on Friday 25th May, you drove a CSIRO fleet Vehicle in a manner other than authorised and in contravention of a lawful direction and in breach of CDSCC policy.
You were observed driving the vehicle in the Lanyon Shopping Centre, McDonalds drive way at approximately 5:18pm.
In [sic] Thursday 5th May 2011 you were advised by, Linda Francis, HR Manager, that you were not to use the fleet vehicle for personal use, specifically you were not to drive through take-away outlets on your way to or from work. On Tuesday 22nd May 2012 you were reminded of that conversation and asked if [sic] remembered it, you stated that you did remember the conversation and that you understood you were not to stop at McDonalds on your way home and you were emphatic that you had not done so since the earlier conversation. When asked by Linda Francis if you were aware that to do so was a failure to follow a lawful direction you indicated that you were.
…
Given the serious nature of the matter, and given that if you are found to have failed to follow a lawful direction your employment may be terminated you will be released from duty from today Tuesday 29th May 2012 until 10:00am Thursday 31st May 2012 to offer an explanation and to show cause why your employment should not be terminated.
Your written response is required by no later than 1:00pm Wednesday 30th May 2012 so that we may have time to adequately consider your response before advising you of our decision at 10:00am on Thursday 31st May 2012.[9]
[9] T32.10/239.
Mr Hoffman duly provided a response, and a further meeting was held on 31 May 2012 involving the same participants as the previous meeting. In his response, and at the meeting, Mr Hoffman denied purchasing food from the ‘drive thru’ on his way home from work on 25 May 2012. However, Dr Diamond subsequently determined that it would be necessary to investigate the matter and Mr Hoffman’s conduct more formally. Mr Hoffman was advised of this in a letter from Dr Diamond dated 6 June 2012, in which he was also advised that he was to be charged with misconduct, and that Mr Peter Grills of the organisation Quality Management Solutions had been appointed to investigate the matter.[10]
[10] T32.12/249.
Mr Grills subsequently interviewed Mr Hoffman on 14 June 2012, and a draft of Mr Grills’ report was later provided to Mr Hoffman on 3 July 2012. On 4 July 2012, Mr Hoffman provided a response to that draft report. However, on 5 July 2012, he requested a meeting, which took place on 6 July 2012. Those present included those who had been present at the previous meetings, plus Mr Hoffman’s immediate supervisor, Mr Stokker.
At that meeting, Mr Hoffman acknowledged that he had purchased food from McDonalds, via the ‘drive thru’ service, on his way home from work on 25 May 2012. He also advised that he had lied throughout the investigation, when he claimed that he had only driven into the McDonalds car park because of an urgent need to use their toilets. In the course of this meeting, Mr Hoffman also advised those present that he had decided to resign, and was ultimately provided with a sheet of paper for this purpose. Mr Hoffman then wrote out his resignation, effective immediately, which was accepted.
It is in these circumstances that Mr Hoffman claims to have developed a compensable psychiatric condition as a result of his employment at the CDSCC.
I will next outline the applicable statutory framework and identify the issues, before addressing these issues by reference to the evidence before me.
STATUTORY FRAMEWORK
The ‘gateway’ provision of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) is s 14, which relevantly provides that:
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The term “injury” for the purposes of the SRC Act is further defined by ss 5A and 5B of the Act, as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1)In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
THE ISSUES
It follows that in the context of this matter, the issues are as follows:
(a)Has Mr Hoffman suffered a condition capable of being regarded as an “injury” or a “disease” within the meaning of the SRC Act?
(b)If so, did his employment with the CDSCC make a significant contribution to the development of that condition?
(c)If so, was the condition a result of reasonable administrative action taken in a reasonable manner in respect of his employment, such that the condition is not an “injury” within the meaning of the SRC Act, and compensation is not payable?
I will address each of these issues in turn.
HAS MR HOFFMAN SUFFERED A CONDITION WHICH IS CAPABLE OF BEING AN “INJURY” WITHIN THE MEANING OF THE ACT?
The material before me includes reports from two psychiatrists, Dr Zsadanyi and Dr Saboisky. In his report of 20 February 2014[11], Dr Saboisky stated:
I believe he did have a diagnosis of adjustment reaction with mixed emotional features as a result of his employment with CSIRO.[12]
In a report dated 29 January 2013[13], Dr Zsadanyi expressed a similar opinion.
[11] Exhibit 6.
[12] Exhibit 6, p. 6.
[13] T22/115.
Accordingly, the respondent has conceded that Mr Hoffman did suffer a condition capable of being regarded as an “injury” within the meaning of the SRC Act, and that that condition was contributed to, to a significant degree, by his employment with the CDSCC. I consider each of those concessions to have been properly made, and it therefore follows that Mr Hoffman’s condition will be compensable unless I conclude that it resulted from “reasonable administrative action taken in a reasonable manner” in respect of his employment within the meaning of s 5A of the SRC Act.
WAS MR HOFFMAN’S CONDITION SUFFERED AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER?
The relevant administrative actions
Under cross-examination, Mr Hoffman agreed that he first developed what he understood to be symptoms of his adjustment disorder either during or immediately following the meeting of 29 May 2012. He agreed that this was consistent with Dr Saboisky’s statement:
He developed the adjustment disorder as a direct result of a meeting on 29 May 2012 when he was told that he would be charged with misconduct and that his employment may be terminated as a result.[14]
[14] Exhibit 6, p. 6.
I acknowledge that Dr Zsadanyi considered that Mr Hoffman ‘probably’ experienced symptoms consistent with an adjustment disorder at an earlier point in time, after he broke his tooth at work in March 2012. Mr Lander, who appeared as counsel for Mr Hoffman, also submitted that the onset of his condition was earlier, in 2011. However, he did not cite any medical evidence in support of that proposition.
On the basis of the material before me, particularly Mr Hoffman’s evidence and that of Dr Saboisky, I have concluded that Mr Hoffman’s adjustment disorder had its onset either on 29 May 2012, or shortly thereafter. It therefore follows in my view that the most relevant events for the purposes of determining whether Mr Hoffman’s condition resulted from reasonable administrative action are the events in late May 2012, and in particular the meetings of 29 and 31 May 2012.
Accordingly, I will next consider whether each of those meetings constituted reasonable administrative action carried out in a reasonable manner. I note there is no dispute, and no doubt, that each of the meetings constituted administrative action ‘in respect of’ Mr Hoffman’s employment.[15]
[15] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at pp. 473 to 474.
The Meeting of 29 May 2012
Mr Hoffman’s evidence, and the submissions made on his behalf, were to the effect that the meeting of 29 May 2012 was a heavy handed and unwarranted response to the reports of other employees that they had seen Mr Hoffman at the McDonalds drive thru on the afternoon of Friday, 25 May 2012.
Mr Hoffman’s evidence was also to the effect that, insofar as reference was made at this meeting, and in the notice that was given to him at the meeting, to the possibility of termination of his employment, the extreme nature of this ‘threat’ had effectively forced him to lie in an effort to keep his job. Mr Hoffman’s evidence and the submissions made on his behalf were also to the effect that it was excessively harsh and unfair to threaten him ‘with the sack’ for the ‘reflex’ action of stopping to get something to eat when he was hungry, given that he did not deviate from his route home, and he was the only person in the car at the time.
Mr Lander also contended that Mr Hoffman had become a difficult or ‘problem’ employee, and the CDSCC were effectively looking for an opportunity to get rid of him. Mr Lander further contended that Mr Hoffman was obese and had an ‘addiction’ to food, although no evidence was cited for the latter proposition. He contended that the employer should have taken into account Mr Hoffman’s asserted food addiction when deciding how to respond to the situation which had arisen.
Mr Lander further submitted that the CDSCC’s Vehicle Policy, and/or the CDSCC’s application of it, was unreasonable, as the Policy did not define what was meant by ‘private use’ and therefore was too uncertain and left too much room for discretion. He further contended that the meeting and notice were not reasonable as the earlier directions and warnings given to Mr Hoffman were not themselves reasonable. He submitted that the fact Mr Hoffman was obese should have caused his employer to treat the issue which had arisen as a medical, not disciplinary, issue and that the employer’s treatment of him amounted to disability discrimination.
However, the respondent put forward detailed and consistent evidence as to the reasons for the meeting of 29 May 2012, and the notice which was given to Mr Hoffman at that meeting. Evidence relevant to this issue was given by Ms Linda Francis, Mr Len Ricardo, Dr Ed Kruzins and Mr Clint Smith.
Evidence of Ms Francis
In her statement and oral evidence Ms Francis explained that from November 2007 until July 2013 she was employed as the Human Resources Manager of the CDSCC.[16] She provided details of issues which had arisen in relation to Mr Hoffman’s behaviour and performance from 2007 onwards, culminating in the written warnings in 2010 and March 2011 in relation to his behaviour in the workplace.
[16] Statement of Linda Francis – Exhibit 7, at [1].
Ms Francis also outlined the reasons for and policy concerning the provision of work vehicles to employees at the CDSCC, explaining that work vehicles were provided to employees at least partly because of the fact that the CDSCC at Tidbinbilla could not be accessed by public transport. Largely for this reason, a car pooling system was used so as to enable all employees to travel safely to the CDSCC. She explained that:
Staff who reside close to each other were allocated to car pool in the same work vehicle. All vehicles were also required to travel home in convoy, as an occupational health and safety measure. The road out to the CDSCC is dangerous, and there is a high chance of striking wildlife. By travelling in convoy, the CDSCC could ensure that help would be on hand in the event of an accident, breakdown, or other issue. This meant that each employee was required to commence and finish work at the same time each day.[17]
[17] Exhibit 7, at [16].
Ms Francis also explained that as a result of issues which had developed between Mr Hoffman and other employees, and concerns expressed by other employees about Mr Hoffman’s driving, a situation had developed whereby Mr Hoffman generally drove to and from work by himself and therefore garaged the work vehicle at his residence overnight. Ms Francis also explained that each vehicle within the CDSCC fleet is fitted with a tachograph, which records information for each trip, including when the engine is started/stopped, the length of time spent idling, the length of a trip and the speed at which a vehicle travels.[18]
[18] Exhibit 7, [21].
Ms Francis went on to indicate that:
In May 2011 I spoke to him informally upon receiving a complaint that he had been seen using a fleet vehicle to attend McDonalds. I informed the Applicant that he could not use a work vehicle to go to McDonalds. He asked why, and I advised it is against the policy, as it is using the work vehicle for personal use. The Applicant agreed not to do this again. … .[19]
[19] Exhibit 7, at [25].
Ms Francis went on to provide details of a further incident relating to Mr Hoffman’s use of his work vehicle in May 2012:
In May 2012 the Applicant approached Barry Stokker seeking permission to use a work vehicle to locate his dog, which had gone missing. I was told that the Applicant was on the phone to Mr Stokker late at night for some hours, and was very upset. After that very lengthy discussion the Applicant was advised by Mr Stokker to make his own decision about whether he would use the work vehicle, and to face whatever consequences may result from his choice. I could understand why, but was nevertheless disappointed that Mr Stokker had given this advice. He should have told the Applicant he could not approve private use of a work vehicle, as there was no scope for this under the CDSCC policy.
Following this incident I organised a meeting with the Applicant to have a further conversation with the Applicant about his use of the work vehicle. … I advised that the Applicant should not have pressured Mr Stokker into allowing him to use the work vehicle. However, the Applicant’s only focus in relation to this incident was on locating his dog. I used this discussion to remind the Applicant of his obligation under the CDSCC policy, queried unusual recordings obtained from the tachograph on the vehicle he used, and also reminded him of our previous conversation in which he acknowledged not being able to use the vehicle to go to McDonalds.[20]
[20] Exhibit 7, at [26] – [27].
Ms Francis also explained the immediate background to the meeting of 29 May 2012 as follows:
On Friday 25 May 2012 the Applicant was witnessed by two other CDSCC employees exiting the McDonalds in Lanyon. … On Monday 28 May 2012 the two employees approached me in the morning to advise that they had witnessed the Applicant at McDonalds. Both employees expressed concern that the Applicant continually got away with doing the wrong thing, and both indicated their willingness to write statutory declarations to attest to what they had witnessed. It became clear to me that if I did not act upon the issue formally, we would have a problem on site.[21]
[21] Exhibit 7, at [28].
She explained that the purpose of the meeting of 29 May 2012 was:
[t]o inform him that we had received reports of him being seen at McDonalds in a work vehicle the previous Friday. I was initially unaware that the Applicant was scheduled to attend his dentist that morning. I had discussed the situation with Mr Kruzins, and we both agreed that the matter should be raised quickly in an initial meeting. The purpose of the meeting was to inform the Applicant what had happened, and to set up a time for the issue to be discussed further. I expected the meeting would take 10 minutes at most, and felt it was appropriate to inform the Applicant about what had been reported, to save him from first hearing about it elsewhere.[22]
[22] Exhibit 7, at [33].
As to the timing of the meeting, Ms Francis stated:
I am aware that the Applicant has complained about the timing of this meeting, in view of the fact he had to attend a dentist’s appointment. On the morning of 29 May 2012 I called Mr Stokker and told him that I needed to speak with the Applicant. Mr Stokker informed me that the Applicant had a dentist appointment, and asked when I wished to see him. I told Mr Stokker that I wanted to see the Applicant straight away if possible, but to check with the Applicant first to see if he was happy to come and see [sic]. Mr Stokker confirmed that the Applicant was happy to see me straight away. I recall suggesting to Mr Stokker that the Applicant could bring a support person if he wished.[23]
[23] Exhibit 7, at [35].
She went on to describe the meeting as follows:
When the Applicant arrived, I acknowledged that he needed to leave shortly and said that the meeting would be short. I advised that we wanted to let him know that he had been seen by two colleagues at the Conder McDonalds on the previous Friday, and we wished to set up a time to discuss this further. The Applicant wanted to immediately discuss and explain his side of the story. I suggested that we didn’t need to discuss the specifics at this stage, the meeting was just to let him know that we had received the report and wanted to set up a formal meeting. The Applicant became agitated and wished to discuss the details, but I kept telling him we would get into those issues later, after he had a chance to provide a considered response.[24]
[24] Exhibit 7, at [36].
Ms Francis also explained that prior to this meeting, advice had been sought from Mr Clint Smith, a CSIRO Senior Workplace Relations Adviser, on Monday, 28 May 2012. Following this discussion, it had been decided that Mr Hoffman should be advised that if his conduct was found to warrant him being issued a ‘third strike’, this could result in termination of his employment.[25] It had also been decided that Mr Hoffman should be stood down on full pay, to allow him time to provide a response to the allegations against him. She further explained that this step was taken partly with a view to protecting Mr Hoffman’s privacy, stating:
His workstation and computer could have been viewed by the Applicant’s colleagues, and I did not want him to be worried about this. In the circumstances, I considered this approach was reasonable.[26]
[25] Exhibit 7, at [39].
[26] Exhibit 7, at [40].
Ms Francis also stated:
We also needed the Applicant to understand that he should not respond to the allegation in a frivolous or contemptuous fashion, as he was accustomed to doing on previous occasions when allegations of misconduct were raised. We suggested the Applicant could approach the union for assistance, and/or seek legal advice. We advised him that the issue was being taken very seriously by management, and informed him he could lose his job.[27]
[27] Exhibit 7, at [41].
Ms Francis indicated that it was for this reason that Mr Hoffman was provided with a written notice on 29 May 2012 outlining the allegations against him, advising him of the decision to stand him down on full pay and also advising him “if you are found to have failed to follow a lawful direction your employment may be terminated”.[28] The notice also indicated that his written response was required no later than 1:00 pm on Wednesday, 30 May 2012.
[28] Attachment C, Exhibit 7.
Ms Francis’s oral evidence was consistent with her statement. She explained that at the relevant time the Policy regarding CDSCC fleet vehicles was applied stringently because of the potential implications of non-compliance with the Policy. She explained that up to three or four staff members would travel in a vehicle at one time and it was simply not viable for the driver or others in the vehicle to be permitted to stop at shops, to pick up children, etc. She explained that if this was permitted, other employees would be affected and the fleet vehicle system would not work.
Ms Francis also explained that there were potential compensation issues if vehicles deviated from the relevant route home, or stopped en route, and she also alluded to issues concerning fringe benefits tax. She explained that in all of the circumstances, it was necessary for the CDSCC to strictly enforce the Policy. She also explained that fairness required the Policy be enforced consistently, even in the case of an employee who had the benefit of travelling alone in a fleet vehicle. She explained that at the relevant time, two staff had chosen to travel to work in their own cars, but approximately 99% of the staff were part of the fleet vehicle system. She indicated that her understanding was that the Policy itself did not allow for any non-compliance, and categorically stated that there was to be no private use of CDSCC vehicles. She explained that in her mind, the Policy simply did not permit any private use of CDSCC vehicles, although the circumstances surrounding any particular instance of non-compliance could and should be taken into account in assessing the consequences which should follow from the non-compliance.
Ms Francis also explained that even prior to staff members approaching her about Mr Hoffman being seen at the McDonald’s drive thru on 25 May 2012, there had been ‘rumblings’ amongst other staff about Mr Hoffman not complying with the rules surrounding the use of fleet vehicles. She said that anecdotally she had heard of other instances of Mr Hoffman stopping at the drive thru McDonalds in his work vehicle. In addition, Ms Francis was aware of instances when Mr Hoffman did not comply with the direction to travel with the fleet in a convoy and, in particular, she was aware that he consistently failed to leave with other employees at the end of the day. She said this had led to a perception amongst other staff that he was receiving special treatment.
Ms Francis also indicated in her oral evidence that the incident of 25 May 2012 was related to a ‘broader issue’, which was Mr Hoffman’s continual disregard for rules he did not like or did not think should be applied to him. She referred to the fact that Mr Hoffman had a history of not following directions of supervisors or managers in relation to many aspects of his employment.
Under cross-examination, Ms Francis confirmed that any deviation from the regular route home was considered to be a private use of a vehicle and therefore a breach of the Policy, and that a breach of the Policy amounted to misconduct.
Evidence of Mr Ricardo
Mr Ricardo was the Operations Manager at the CDSCC at the relevant time and has also provided a written statement and gave oral evidence.
His evidence as to the reasons for and nature of the fleet vehicle system was consistent with that of Ms Francis. He also confirmed Ms Francis’s evidence to the effect that there was a perception amongst other staff that, because Mr Hoffman was assigned his own work vehicle, he was receiving preferential treatment:
This was a source of frustration to some, as some people perceived that he was receiving special treatment. This perception was compounded by the Applicant’s tendency not to leave on time with everyone else. The only people allowed to use work vehicles privately were senior managers. The Applicant did not have this privilege.[29]
[29] Exhibit 8, at [7].
Mr Ricardo also stated, consistently with Ms Francis’ evidence:
It was common knowledge amongst all staff at the CDSCC that the work vehicles were only to be used for travel between the CDSCC site and home. Staff travelled via the most direct route, and diversions were not permitted except for unexpected road closures or incidents. The policy was strict, and it was a well known condition of employment that the vehicles were not to be used other than in accordance with the policy.[30]
[30] Exhibit 8, at [8].
Mr Ricardo also provided an account of the meeting on 22 May 2012 with Mr Hoffman, which was consistent with that of Ms Francis and stated that:
The Applicant confirmed in this meeting that he was aware of the CDSCC policy in relation to use of fleet vehicles. He was able to quote the statement of instructions back to us during the meeting. However, he showed no regret for his actions, informing us that he would do the same thing again if the situation arose again. My notes from the meeting also record that the Applicant was asked about the tachograph data for his work vehicle, which indicated that the vehicle routinely idled for a period of time at the same part of his journey on the way home. The Applicant advised that he received a phone call every Thursday.[31]
[31] Exhibit 8, at [11].
He continued:
The Applicant’s explanation had to be weighed against the suspicion that the Applicant had been using the car to go to McDonalds. There had been reports in the past from several staff members who lived close by to the Applicant that the Applicant had been seen in his work vehicle at the shopping centre and at McDonalds from time to time. Initially, no one was willing to put in a formal complaint. However, these sightings gradually led to increased disquiet in relation to the Applicant, and a view that something had to be done, as there was a perception that the Applicant had been allowed to get away with behaviour that was against CDSCC policy. This particular incident had been prompted by two staff members deciding to provide statutory declarations stating that they had seen the Applicant in his work vehicle at McDonalds.[32]
[32] Exhibit 8, at [12].
As to what occurred at the meeting on 29 May 2012, Mr Ricardo stated as follows:
The Applicant informed us that he had a dentists appointment. Ms Francis instructed him to go to the appointment, and that the meeting was simply to tell him about the McDonalds issue, and to set up a time to discuss it further.
Despite being told to go to his appointment, the Applicant wanted to explain his side of the story. The Applicant explained that he needed to use the toilet, and had left the car running in the car park. The Applicant explained that his need for the toilet then passed, and he continued on his way home. He said this was a genuine medical reason for needing to stop. The explanation did not make sense to me, as the trip to McDonalds was out of his way. Had he really needed to use the bathroom it would have been quicker for him to proceed directly to his home. I recall that we asked for a medical certificate to support the claim, but the Applicant did not provide one.[33]
[33] Exhibit 8, at [16] – [17].
Mr Ricardo’s oral evidence was also consistent with his statement, and with Ms Francis’s evidence. He confirmed in his oral evidence that the difficulty with Mr Hoffman’s conduct from his point of view was that Mr Hoffman consistently abused the Policy.
Evidence of Dr Kruzins
Dr Ed Kruzins, who became the Director of the CDSCC in May 2012 has also provided a statement and gave oral evidence at the hearing.
In his statement, Dr Kruzins referred to the history of difficulties with Mr Hoffman in the workplace, stating:
I left the CDSCC in 2006 and returned in May 2012. Upon my return I discovered that there was still a lot of talk about the Applicant, and there were still problems with him not getting along with his co-workers in the CMF team. I had heard that the Applicant had exhibited a range of unsatisfactory behaviours, including:
(a) Shouting at his supervisor and other colleagues;
(b) Use of inappropriate language;
(c) Sarcasm towards others; and
(d) Routinely talking back to Mr Stokker whenever he was asked to do quite reasonable things (this proved to be a recurrent problem, but was not evident 100% of the time).
It seemed to me that, if anything, by 2012 the Applicant’s behaviour had become more extreme. Linda Francis (CDSCC HR Manager) had briefed me about HR issues when I commenced as Director and as part of this brief I was informed that the Applicant had received two written warnings. This immediately raised a flag for me, and I made sure I looked into the Applicant’s history over the preceding seven years. I discovered a persisting pattern of poor behaviour related to disruptive behaviour and failure to follow directions. This behaviour was documented by way of formal written warnings that had been issued to the Applicant.[34]
[34] Exhibit 9, at [1.8] – [1.9].
Dr Kruzins also referred to his involvement in the discussion with Mr Hoffman regarding his use of a fleet vehicle to search for his dog in May 2012, stating:
On 22 May 2012 the Applicant was called in to explain his use of a vehicle to locate his missing dog. … The Applicant confirmed he was aware of the CDSCC policy regarding use of a work vehicle. He denied using a work vehicle for any other private purpose, and acknowledged that he was not allowed to do so. However, the Applicant did say that he would do the same thing again should the circumstances arise.[35]
[35] Exhibit 9, at [1.13].
As to the background leading up to the meeting of 29 May 2012, Dr Kruzins said:
On Monday 28 May 2012 (only a few days after that meeting) we received reports from two employees that the Applicant had been seen at Conder McDonalds in a work vehicle the previous Friday. Those employees approached Linda Francis and provided statutory declarations to this effect. Whilst on its own this incident was not of itself something that you would die in a ditch over, when viewed cumulatively, it showed that there was a pattern of behaviour in which the Applicant proved incapable of following directions, or CDSCC policies. I took notes of an internal discussion where Linda Francis and I discussed this issue with Helen Levers … . We discussed that this could have serious gravity and could result in a third and final strike for the Applicant, and my notes indicate that we agreed to speak with Helen Levers (CSIRO HR Manager, Astronomy and Space Sciences) to seek guidance on how to address this worrying pattern of not following direction.
I am aware that there had been many anecdotal reports previously of the Applicant using a work vehicle for private purposes. However, these anecdotal reports were never (and could not have been) acted upon until there was firm evidence.[36]
[36] Exhibit 9, at [1.14] – [1.15].
Dr Kruzins’ evidence as to the content of the meeting of 29 May 2012 was consistent with that of Ms Francis and Mr Ricardo. In his statement he said:
We met with the Applicant on Tuesday 29 May 2012 to discuss the recent inappropriate use of his work vehicle or ‘McDonalds issue.’ The Applicant was informed about the reports that he had been seen at McDonalds with a work vehicle. He referred to having suffered from a medical condition which required him to stop. However there were some nagging inconsistencies about the Applicant’s response and I was not sure I could accept the Applicant’s version. … For health, safety and policy reasons it was clear to me that we needed to verify what the Applicant had told us. If an employee indicates that there is a serious health issue, as a manager, it would be normal that I would follow up whether the employee presented a risk to himself or to others, in the workplace or while operating equipment such as a fleet vehicle.[37]
[37] Exhibit 9, at [1.16]
As to the outcome of the meeting, Dr Kruzins stated:
We decided to follow the advice provided by Ms Levers. The Applicant was stood down on pay to allow him time to prepare a written response.[38]
[38] Exhibit 9, at [1.18].
Dr Kruzins’ oral evidence was also consistent with his statement, and like Ms Francis and Mr Ricardo, he indicated that his understanding was that the Policy did not authorise any personal use of a fleet vehicle. He acknowledged that if particular circumstances arose in which an employee needed to use a fleet vehicle for a private purpose on a particular occasion, this would be taken into account in determining what, if any, sanction should be applied to them. He also confirmed that at the meeting on 22 May 2012, Mr Hoffman indicated that he understood the Policy.
Evidence of Mr Smith
Mr Clint Smith, who at the relevant time was employed by the CSIRO as an HR Policy Manager, has also provided a statement and gave oral evidence at the hearing. He confirmed that he was asked for advice in relation to Mr Hoffman on 28 May 2012 when he was made aware of an allegation that Mr Hoffman had used a CDSCC vehicle to go to McDonalds.
In his statement, Mr Smith referred to an email from the then HR Manager, CSIRO Astronomy and Space Sciences, Ms Helen Levers, dated 28 May 2012 stating:
After a lengthy discussion with Clint Smith, Ed Kruzins, Len Ricardo and Linda Francis it has been agreed that Jack Hoffman will be advised tomorrow that his behaviour has breached CDSCC policy and CSIRO Code of Conduct and that he will be dismissed unless he can provide an acceptable explanation for his behaviour.[39]
[39] Exhibit 10, Attachment A.
Mr Smith stated in relation to this email:
I was copied into an email from Helen Levers sent on Monday 28 May 2012. … This email followed the conversation earlier that afternoon with Helen, Linda, Ed and Len. The email suggests that there was agreement that the Applicant’s behaviour had breached CDSCC policy and the CSIRO Code of Conduct, and that he would be told that he would be dismissed unless he could provide a reasonable explanation for his behaviour. This is contrary to my recollection as to what was agreed, as I emphasised the need to obtain the Applicant’s response, prior to making any decision about whether he had in fact breached CDSCC policy and the CSIRO Code of Conduct.
My perspective was that the CDSCC was not in a position to make any decisions, until the matter was thoroughly investigated. I queried whether it was necessary to stand the Applicant down on full pay to allow him to respond to the allegations, but was aware that concerns were held about the Applicant’s behaviour if he remained in the workplace.[40]
[40] Exhibit 10, at [6] – [7].
Mr Smith’s oral evidence in this regard was consistent with his statement. In his oral evidence, Mr Smith also indicated that the wording of the notice to Mr Hoffman on 29 May 2012 was stronger than the wording he would have chosen, but he was comfortable with the decision to stand Mr Hoffman down on full pay at this stage.
Analysis
Having carefully considered all of this evidence, I have ultimately concluded that the meeting of 29 May 2012, and the notice given to Mr Hoffman at that meeting, did constitute reasonable administrative action in all the circumstances, which was undertaken in a reasonable manner.
In my view the evidence establishes that Mr Hoffman was aware not only of the terms of the Policy, but also that it was applied strictly by his employer. He clearly knew that stopping at the McDonalds drive thru on his way home was a breach of the Policy, and decided to do this anyway, presumably in the hope that he would not be ‘caught’.
The evidence also establishes that this was not a completely isolated incident. Rather, it was part of a pattern of conduct by Mr Hoffman, involving problematic behaviour in the workplace and refusal to follow directions from his superiors. He had also breached the Policy previously, albeit he had better reasons for doing so on that occasion, and he had been specifically told not to stop at the McDonalds drive thru in his work vehicle. In addition, it is clear that Mr Hoffman’s behaviour generally and in relation to his work vehicle in particular was causing difficulty and discontent amongst other employees. The evidence suggests that the fact that Mr Hoffman effectively had his own work vehicle in conjunction with the way he used the vehicle was causing other employees to feel that he was receiving ‘special treatment’.
I accept the respondent’s contention that once Mr Hoffman’s use of his vehicle to go to the drive thru (in clear breach of the Policy) was brought to his employer’s attention by other employees, there was a clear need for his employer to act on this information. Failure to do so would have had significant implications for harmony in the workplace, and compliance with the Policy by other employees. Indirectly, it potentially threatened the fleet vehicle system itself, since it was likely that if employees did not strictly adhere to the Policy, it would have become unworkable.
In those circumstances, and in circumstances where Mr Hoffman had been issued with two previous written warnings in relation to his behaviour in the workplace, it was reasonable in my view for the employer to convene a quick meeting with him at short notice on 29 May 2012, and to give him the written notice that it did. It was important for Mr Hoffman to be made aware of and given an opportunity to respond to the allegation as soon as possible. It was also important that in responding to the allegation he be aware of the potential consequences if the alleged behaviour was proven.
It was also reasonable in my view for Mr Hoffman to be released from duty (on full pay) in order to respond to the allegation, and the timeframe he was given was also reasonable in those circumstances. Importantly, Mr Hoffman was not required to respond to the allegation at the meeting, but was given time in which to do so. It was perhaps unfortunate that Mr Hoffman had a dental appointment scheduled for the same morning, however I do not consider that the coincidence of those two things made the timing of the meeting unreasonable. Nor do I consider that any of those present at the meeting unreasonably detained Mr Hoffman so as to make it difficult for him to attend this appointment. To the extent Mr Hoffman ran short of time to attend the appointment, it seems this was because he himself prolonged the meeting.
I note Mr Lander’s submission that Mr Hoffman’s employer should have treated the matter as a medical issue related to Mr Hoffman’s asserted food addiction. However, at no time during the investigation, or subsequently has Mr Hoffman provided any medical evidence to the effect that he suffered from or suffers from a food addiction and/or that any such medical condition led him to stop at McDonalds on his way home from work. Nor did Mr Hoffman suggest that this was the case at any stage prior to resigning from his employment. In those circumstances there was simply no basis in my view for Mr Hoffman’s employer to treat the matter as a medical rather than disciplinary issue.
For these reasons, I have concluded that the meeting of 29 May 2012 amounted to reasonable administrative action, which was undertaken in a reasonable manner.
The meeting of 31 May 2012
Ms Francis took detailed notes of the meeting held on 31 May 2012, which she provided to the Tribunal.[41] As I understand it, there is no challenge to the accuracy of those notes.
[41] Exhibit 7, Attachment D.
Ms Francis’s notes indicate that in addition to herself and Mr Hoffman, Mr Ricardo and Dr Kruzins were also present. The notes indicate that Mr Hoffman was asked a number of questions, including with respect to his response to the allegations. During the meeting, Mr Hoffman apparently maintained his denial of the allegations and asserted that he had pulled into the McDonalds’ car park on the day in question because of an urgent need to use the toilet. Ms Francis’s notes also record that:
Jack made numerous allegations of conspiracy to have him sacked, he stated he was the victim of malicious gossip and that staff were lying in order to get rid of him.
The notes also indicated that:
On the basis of these allegations I suggested Ed, Len and I take a few minutes to discuss this. We left the room. I recommended to Ed that, given the seriousness of Jack’s allegations we needed to make sure that we gave him ample opportunity to have the current misconduct allegations investigated by an independent person. I advised that I thought it best that the independent investigator be a person external to the CSIRO.
The notes further indicate that Ms Francis, Dr Kruzins and Mr Ricardo then returned to the meeting and advised Mr Hoffman that as his allegations regarding other staff were very serious, it had been decided that there should be a full investigation to ensure that he was provided with natural justice. Mr Hoffman apparently indicated that he was not happy with the further delay in dealing with the matter, but was assured that the investigation would progress as quickly as possible, nothing that “his defence rested in part on his allegations that staff were conspiring against him and that they had provided false information against him”. Ms Francis apparently also stated that “If this was true the matter was extremely serious and it was essential that we investigate the circumstances surrounding his statements”.
Mr Hoffman was apparently also advised that he would be released from duty for the rest of the day and for the following day in order to give him an opportunity to seek further advice should he wish to. The notes also record:
I advised Jack that I needed a little time to seek some advice about his return to the workplace and to be sure we were not placing him at risk. Jack was not happy about this; I explained the reasons for our decision again and advised Jack that I would provide him with an update not later than Friday afternoon.
Ms Francis’s oral evidence in relation to this meeting was consistent with her statement and the notes referred to above.
Mr Ricardo also took notes of the meeting of 31 May 2012.[42] These notes are consistent with the more detailed notes taken by Ms Francis, and Mr Ricardo was not asked in any detail about this meeting during his oral evidence.
[42] Exhibit 8, Attachment C.
Dr Kruzins also took notes of the 31 May 2012 meeting[43], which are also consistent with the notes of Ms Francis and Mr Ricardo. Dr Kruzins also was not asked in any detail about this meeting during his oral evidence.
[43] Exhibit 9, Attachment E.
Analysis
As I have indicated above, I did not understand Mr Hoffman to dispute the evidence of Ms Francis, Mr Ricardo and Dr Kruzins as to the content of the meeting on 31 May 2012.
In addition, Mr Lander did not make any submissions to the effect that there was any aspect of this meeting on 31 May 2012, or the way in which it was conducted, which had the effect that it did not amount to reasonable administrative action taken in a reasonable manner.
In these circumstances, I accept the account of Ms Francis of this meeting, which is consistent with the evidence of Dr Kruzins and Mr Ricardo. Based on that account, I do not consider any aspect of this meeting or the way in which it was conducted to have been unreasonable and I note that neither Mr Hoffman nor Mr Lander on his behalf have contended that this meeting was unreasonable or was conducted in an unreasonable manner.
It was reasonable in my view for Ms Francis, Dr Kruzins and Mr Ricardo to further question Mr Hoffman about his response to the relevant allegations, particularly in circumstances where this response involved allegations against other employees and given Mr Hoffman has subsequently admitted that his response was a fabrication. It was also reasonable in my view for a decision to be made that a formal investigation by an independent investigator should be undertaken and for Mr Hoffman to be advised of this. It was also reasonable for Mr Hoffman to be released from duty for the balance of that day and the following day so as to allow him to seek advice and/or reflect on his situation and provide any further information.
Causation
As I have indicated above, it is clear from Mr Hoffman’s evidence and the medical evidence that his adjustment disorder developed in late May 2012, probably either during or immediately following the meeting of 29 May 2012, possibly with some contribution from the meeting of 31 May 2012. It therefore follows that Mr Hoffman’s adjustment disorder developed “as a result of” those meetings and the surrounding events, in particular the meeting of 29 May 2012.
However, as I have concluded that both the meetings of 29 May 2012 and 31 May 2012 constituted reasonable administrative action taken in a reasonable manner, it follows from the terms of s 5A of the SRC Act that Mr Hoffman’s adjustment disorder is not an “injury” for the purposes of the SRC Act and is therefore not compensable.
For abundant clarity, I have concluded that the work-related events of late May 2012 and in particular the meetings of 29 and 31 May 2012 were by far the major, if not the only, contributors to Mr Hoffman’s adjustment disorder. Therefore there is no doubt that the adjustment disorder developed “as a result of” those events and it is unnecessary for me to address the question of precisely what degree of contribution is required from a reasonable administrative action in order to defeat what would otherwise be an entitlement to compensation.
I would also add that I am not satisfied on the material that there was any subsequent “aggravation” of Mr Hoffman’s condition once it had developed. For that reason, I have not addressed the question of whether any such aggravation attracts compensation liability under the SRC Act.
CONCLUSION
As I have concluded that Mr Hoffman’s adjustment disorder arose “as a result of reasonable administrative action taken in a reasonable manner” in respect of his employment, I have also concluded that it did not constitute an “injury” within the meaning of the SRC Act and it is accordingly not compensable. I have therefore decided to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean .....................................[sgd]...................................
Associate
Dated 30 January 2015
Dates of hearing 13 and 14 October 2014 Advocate for the Applicant David Lander Solicitors for the Applicant Lander & Co Counsel for the Respondent Andrew Berger Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore Lawyers
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