Janelle Polkinghorne and Comcare
[2015] AATA 54
•30 January 2015
[2015] AATA 54
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0816
Re
Janelle Polkinghorne
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 30 January 2015 Place Brisbane The tribunal affirms the decision under review.
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Deputy President I R Molloy
CATCHWORDS
COMPENSATION – Commonwealth Employees – claim for work related stress and anxiety – ailment not in dispute – whether ailment contributed to by employment to a significant degree – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act (1988) (Cth) ss 4, 14
REASONS FOR DECISION
Deputy President I R Molloy
30 January 2015
This is an application to review a decision dated 16 December 2013 revoking a determination of 13 November 2012 and in its place denying Janelle Polkinghorne’s claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’).
Mrs Polkinghorne was employed by the Torres Strait Regional Authority (‘TSRA’) on Thursday Island from 10 October 2011 as a project manager. Her claim for compensation, dated 3 September 2012, was for “work related stress and anxiety secondary to workplace harassment” which, she claimed, arose out of the actions of a work colleague, Brian Riley.
To receive compensation under s 14 of the SRC Act, a person must have suffered an injury and, in the event the injury is an ailment, such injury must have been contributed to, to a significant degree, by his or her employment.
Section 14(3) of the SRC Act provides that compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Sections 5A and 5B of the SRC Act contain definitions of ‘injury’ and ‘disease’ which are unnecessary to set out. Section 4 defines ‘ailment’ as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’
It is not disputed that Mrs Polkinghorne suffered from adjustment disorder with mixed anxiety and depressed mood as diagnosed by Dr Elsa Yeung, clinical psychiatrist, in October 2012. It is also not disputed that this condition is an ‘ailment’ within s 4 of the SRC Act.
At issue is when Mrs Polkinghorne first began to suffer from a condition that was outside the boundaries of normal mental functioning and behaviour. Mrs Polkinghorne contends that she first began to suffer from the condition in May 2012, arising as she says from the conduct of Mr Riley.
Comcare contends that Mrs Polkinghorne’s condition developed on or after 20 August 2012, following a conversation on that day with Mr Riley, and that her condition was not contributed to, to a significant degree, by her employment.
Determining the issues in dispute depends substantially upon findings of fact and in particular resolving the competing versions of events of Mrs Polkinghorne and Mr Riley who each gave evidence. Evidence was also given by another TSRA employee, Suzanne Stratton.
Mrs Polkinghorne, as I have said, joined the TSRA in October 2011, working under the supervision of Mrs Stratton. Mrs Polkinghorne says she got on well with Mrs Stratton and respected her.
Mr Riley joined the TSRA in January 2012 as program manager, but at a higher level than Mrs Polkinghorne. Mr Riley had his own team which did not include Mrs Polkinghorne. They worked on different programs.
Mr Riley had his own office. Mrs Polkinghorne had a desk in an open area nearby. Other employees also worked in this area including members of Mr Riley’s team.
Mrs Polkinghorne says that in January and February 2012 her relationship with Mr Riley was pleasant. She says that Mrs Stratton then went on five weeks’ leave and Mr Riley stepped into her role as supervisor.
Mr Riley disputes that he was ever Mrs Polkinghorne’s supervisor which I accept is correct. However, in Mrs Stratton’s absence, they came into greater contact through work on a particular project.
An issue arose in this time concerning a telephone conversation between Mrs Polkinghorne and what was described as an external stake-holder. Mrs Polkinghorne’s version is that the Mr Riley raised his voice to her and made her terminate the call. She says Mr Riley undermined her and inappropriately took the external stake-holder’s side.
This led to an exchange of emails in one of which Mrs Polkinghorne criticised Mr Riley. Mrs Stratton describes her tone in that email as inappropriate, particularly as she was communicating with a senior officer. Mr Riley took some exception to what Mrs Polkinghorne had written.
It is clear that after this the relationship between Mrs Polkinghorne and Mr Riley changed. Mr Riley was wary of Mrs Polkinghorne. He says that if he had to communicate with her, he did so through her supervisor. However, as Mrs Stratton says, there was generally no reason for him to deal with her at all.
Mrs Polkinghorne describes a much different change in their relationship and in particular in Mr Riley’s conduct towards her. She says he would deliberately knock her desk as he walked past, talk over her, belittle her, and glare at her. Mr Riley denies these allegations.
Mrs Polkinghorne says she told her supervisor, Mrs Stratton, of Mr Riley’s allegedly bullying and intimidatory conduct. She says she also told Mrs Stratton at the time that Mr Riley was a liar, and that she would not talk to him unless there was someone else present or she was recording their conversation.
Mrs Stratton denies any conversation with Mrs Polkinghorne at this time concerning Mr Riley. She also denies that Mrs Polkinghorne ever said anything to her of the nature of Mr Riley being a liar, or that if she was alone with him she would record their conversation.
I find Mrs Stratton’s evidence on this and other matters to be truthful and reliable. She gave the impression of being competent and professional. I did not detect any bias towards either Mrs Polkinghorne or Mr Riley. She had no reason to lie and her recollections were clear.
I find that the conversation in early 2012 that Mrs Polkinghorne says she had with Mrs Stratton concerning Mr Riley did not occur.
As to Mr Riley’s alleged conduct at this time, I do not accept that it was as Mrs Polkinghorne describes. I accept Mr Riley’s evidence. Overall I find him to be a truthful witness. He was cautious in giving his evidence, which is understandable in light of the allegations being made against him. However I did not detect anything in his demeanour or his evidence that detracted from his credibility.
At the same time I find Mrs Polkinghorne’s evidence on this and other matters unsatisfactory. I have more to say on that below.
There is one other matter I should mention. The evidence is that about this time Mrs Polkinghorne asked Mr Riley if everything was alright between them, and he said that it was. I think this fits with a changed relationship consistent with what Mr Riley describes.
I think it is unlikely that Mrs Polkinghorne would have approached Mr Riley with this sort of enquiry, or perhaps at all, if she was being subjected to the bullying and intimidatory behaviour that she describes.
Mrs Polkinghorne claims that in about late May 2012 Mr Riley again started to treat her differently, resuming the same sort of bullying and intimidatory conduct towards her. She says this coincided with Mr Riley being charged by Thursday Island police with a criminal offence.
Mr Riley would again knock her desk. He looked at her sternly and aggressively. He would speak over her. He would belittle her. He would try to read what was on her computer screen.
Mrs Polkinghorne describes the effect Mr Riley was having on her throughout June and July 2012. She could not sleep. Her work slipped. She could not concentrate. She became withdrawn. Her health, she says, was greatly affected.
She says she was concerned Brian Riley might harm her in some way. She was concerned for her children’s safety. She ensured the doors at home were locked at night fearful that Brian Riley knew where they lived. She took time off work so as not to be near him.
The reason Mrs Polkinghorne gives for Mr Riley acting in this way towards her was his dislike of the police which, she says, extended to her because her husband was a Thursday Island police officer. She also says that Mr Riley had made a complaint, including to the Queensland Police Service, that her husband had communicated confidential information to her about his case.
The first thing to note is that the evidence, including from Mr Riley and from the records of Queensland Police, establishes that Mr Riley did not make any complaint at this time as Mrs Polkinghorne describes.
As to Mr Riley’s conduct towards her, again I accept the evidence of Mr Riley over Mrs Polkinghorne. Furthermore, if Mr Riley had been acting in this way, then surely others in the office would have noticed. Yet an investigation, including interviews of other employees working in the same common area as Mrs Polkinghorne, did not turn up any evidence that anyone noticed anything other than a normal work relationship between them.
I find it highly improbable that in a small office over a period of two months or more no-one else would have picked up on conduct as described by Mrs Polkinghorne if it were happening.
I also find it improbable that Mrs Polkinghorne would not have mentioned anything of her complaints to a co-worker or anyone in a position of authority at the TSRA. This is all the more remarkable in view of Mrs Stratton’s evidence of an informal meeting with Mrs Polkinghorne on 31 July 2012. During the meeting Mrs Stratton says that she said words to the effect that Mrs Polkinghorne’s work was falling off, and asked whether there was anything going on that could be affecting her performance, to which Mrs Polkinghorne answered no.
In an email later the same day Mrs Polkinghorne thanked Mrs Stratton for her feedback, and said that, in relation to whether there was anything else going on, there were a few things on her mind with work, which she described. However, nothing she described had anything to do with Mr Riley, or any harassment, bullying or intimidation. For her part, Mrs Stratton did not observe any change in Mrs Polkinghorne’s personality during June or July, such as becoming withdrawn.
It was submitted that perhaps Mrs Polkinghorne genuinely perceived she was the subject of intimidation and bullying by Mr Riley, even if objectively that was not the case. I reject that, firstly, because having seen and heard Mrs Polkinghorne give evidence, I do not accept that that was her perception. Secondly, it does not explain why Mrs Polkinghorne did not make any complaint or comment to anyone else at the TSRA.
Finally, I should also mention that, despite Mrs Polkinghorne’s claim that her health at this time was being greatly affected, she did not consult a doctor.
Mrs Polkinghorne says that on Friday 17 August 2012 she received a message that Senior Constable Anita Portage had phoned. At the same time Craig Dunkel, another TSRA employee, advised her that the police had attended at his home concerning Brian Riley.
Mrs Polkinghorne says that on Saturday 18 August 2012 she returned Senior Constable Portage’s call. She says the police were enquiring about her association with Brian Riley and, in particular, about a TSRA function on, she thinks, 12 May 2012. She says she told Senior Constable Portage that she did not attend a work function on that day.
On Monday morning, 20 August 2012, Mrs Polkinghorne spoke to Mrs Stratton. She told Mrs Stratton that she had been contacted by the police and that she intended to speak to Brian Riley.
Mrs Polkinghorne also claims she told Mrs Stratton of her fears if Brian Riley found out she had been contacted by the police. Mrs Stratton’s version, which I accept, is that Mrs Polkinghorne did not refer to any fears.
Mrs Stratton says that Mrs Polkinghorne did mention that Mr Riley had been childish in his dealings with her since May 2012. This was the first time she had mentioned Mr Riley. She said that he had stopped inviting her for a drink after work on Friday, and did not say good bye to her at the end of the day. Again I accept Mrs Stratton’s evidence
Later that morning Mrs Polkinghorne entered Mr Riley’s office and had a conversation with him. She told him that she and other TSRA employees had been contacted by the police concerning an investigation involving him. She declined to identify the other employees. When asked which police, she said “… Anita, the one that’s investigating whatever the case.”
Mrs Polkinghorne has given various reasons for the conversation: a desire to assist Mr Riley; to be upfront and honest; through respect and courtesy; to give Mr Riley a ‘heads up’; so that he would know she was not a threat to his case; so that he was aware his staff were talking about him; to show she was an honest and open employee; that it was the right thing to do; and because it might improve their relationship.
I do not accept any of that.
Firstly, Mrs Polkinghorne’s evidence in this area was particularly unimpressive. The more she tried to explain why she chose to speak to Mr Riley, the less convincing her evidence became.
Secondly, the reasons she gave do not coincide with her attitude towards Mr Riley. I do not accept he caused her fear or distress as she claims. However she clearly disliked him. Her reasons are at odds with her feelings towards him.
Thirdly, Mrs Polkinghorne secretly recorded the conversation. She started the recording device, as she admits, in a toilet cubicle so that no-one would know about it. Surreptitiously recording the conversation is not the conduct of someone motivated as Mrs Polkinghorne claims. I reject her evidence that the recording device was in full view when she spoke to Mr Riley.
Fourthly, the direction in which Mrs Polkinghorne took the conversation suggests that she was intending to convey to Mr Riley that she and others were a threat to him, and possibly to obtain some admissions from him. I think this is clear from the following exchange:
JP: … why I’m bringing to your attention is because it puts TSRA employees in a position. Like I know we’ve discussed and other people have been here and you know heard your comments about leaving kids at home and stuff like that. I know we’ve had a conversation before and there were witnesses to it.
BR: So what was this, what was this conversation?
JP: When you’ve left your child home before. I don’t know if it was this particular incident, but you’ve commented. So I’m just letting you know I don’t know if they’ve said anything or not …
BR: Comments about leaving my child at home?
JP: Yeah.
BR: Right. I don’t recall such a conversation.
JP: I do, but that’s neither here nor there, and I don’t care, I really don’t care, but …
BR: Oh ok, yeah it’s after school, with this particular …
JP: I know but I’m just saying, but I wasn’t the only one there at the time. There were three other people there at the time, so I don’t know, do you know what I’m saying, I’m just saying whether they go ahead with that. I’m just giving you that. I don’t know.
It remains to say that I do not consider the conversation occurred in the course or performance of Mrs Polkinghorne’s employment.
Mrs Polkinghorne’s evidence is that later that day, 20 August 2012, there was another conversation, this one initiated by Mr Riley. He is said at that time to have referred to an article in The Australian relevant to his charge.
Mr Riley disputes the later conversation occurred. However I think the likelihood is there was the later conversation, and that some of the things Mr Riley says were mentioned earlier, but are not on the recording, were discussed at that time. In this respect I think Mr Riley is genuinely mistaken, but that this does not defeat the reliability of his evidence on matters of substance.
Mrs Polkinghorne says that for the rest of that day Mr Riley was pleasant enough. She says the next day she was informed that Mr Riley had asked some other employees to confirm that she had come into his office. According to Mrs Polkinghorne, Mr Riley had told them she had ‘ “[given] him a spray” ’.
Mrs Polkinghorne says she was shocked, dumb-founded and extremely upset. She met with Mrs Stratton in a distressed state. Later that day she spoke with the human resources manager, Mr Mullings, and then met with the TSRA Chief Executive Officer, Mr See Kee.
Mr Riley and Mrs Polkinghorne each made a complaint against the other. What then occurred is something similar to what could have been expected if Mrs Polkinghorne had in truth made complaints of bullying and the like earlier in the year. Mr Riley shifted, voluntarily, to the TSRA’s office in another building. Within a short time a mediation was arranged. Unfortunately the mediation was unsuccessful.
Meanwhile Mrs Polkinghorne was referred to Dr Yeung at Comcare’s request. Dr Yeung diagnosed adjustment disorder with mixed anxiety and depressed mood as a result of Mrs Polkinghorne’s interactions with Mr Riley. However the history upon which Dr Yeung based her diagnosis was Mrs Polkinghorne’s account which I do not accept as accurate.
In October 2012 Mrs Polkinghorne relocated to the mainland. She continued to receive medical treatment until about the time of the reviewable decision. She has been training to be a teacher.
In light of the above facts and circumstances, I accept Comcare’s submission that Mrs Polkinghorne’s accepted condition did not arise in May 2012. Mrs Polkinghorne did not suffer from a condition outside the boundaries of mental functioning and behaviour prior to 21 August 2012, when she learned of Mr Riley’s reaction to the conversation she had initiated the previous day.
Mrs Polkinghorne came into contact with Mr Riley through their employment at the TSRA, and the TSRA office provided the setting for the conversation on 20 August 2012, and for relevant subsequent events. However, I also accept Comcare’s submission that, in the circumstances referred to, Mrs Polkinghorne’s condition was not contributed to, to a significant degree, by her employment.
The reviewable decision is affirmed.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy ..............................[SGD]..........................................
Associate
Dated 30 January 2015
Date(s) of hearing 2 and 3 December 2014 Counsel for the Applicant Mr R Myers Solicitors for the Applicant Hall Payne Lawyers Counsel for the Respondent Ms R Henderson Solicitors for the Respondent Sparke Helmore
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