Jocelyn Labuguen and Comcare
[2014] AATA 455
•7 July 2014
[2014] AATA 455
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3883
Re
Jocelyn Labuguen
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 7 July 2014 Place Sydney The decision under review is affirmed.
............................[SGD]............................................
Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION — Claim for adjustment disorder with anxiety and depression——Whether injury was a result of reasonable administrative action — — Whether administrative action was taken in a reasonable manner
LEGISLATION
Administrative Appeals Tribunal Act (Cth) 1975 – s2A
Financial Management and Accountability Regulations 1997 (Cth) – reg 13
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A(1); 14;
Workers Rehabilitation and Compensation Act 1986 (SA)
CASES
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181
Drenth v Comcare (2012) 128 ALD 1
Hart v Comcare (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
National Australia Bank Limited v KRDV [2012] FCA 543
REASONS FOR DECISION
Senior Member A K Britton
7 July 2014
Ms Jocelyn Labuguen worked as a finance officer in the Fleet Information System Support Office of the Department of Defence (FISSO) for seven years to March 2009. FISSO provides financial and technical support services to the Royal Australian Navy. In 2007 Ms Labuguen applied for the newly created position of FISSO finance manager. Despite having successfully acted in that position for a number of years and enjoying the support of her managers, Ms Labuguen’s application for promotion was unsuccessful.
In February 2008 Ms Labuguen discovered what she believed to be financial irregularities within FISSO and brought them to the attention of the newly appointed finance manager, Ms Angela Leary-Smith, among others. Ms Labuguen believed her concerns were ignored.
In April 2008 a written caution was issued to Ms Labuguen for, among other things, sending emails considered to be highly critical of Ms Leary-Smith. In early 2009 she was found to have breached the Australian Public Service Code of Conduct and transferred out of FISSO. Two years later, Ms Labuguen was dismissed from the APS. Fair Work Australia found that the decision to terminate Ms Labuguen’s employment was harsh, unjust and unreasonable and ordered that she be paid six months’ salary in lieu of compensation.
These reasons concern Ms Labuguen’s application for review by the Administrative Appeals Tribunal of the decision made by Comcare to refuse to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an “adjustment disorder with anxiety and depression”. Comcare accepted that Ms Labuguen was suffering from an adjustment disorder that was contributed to, to a significant degree, by her employment. Comcare decided however that Ms Labuguen’s condition was “a result of reasonable administrative action taken in a reasonable manner” and, by the operation of s 5A(1) of the Act, it was not liable for that condition.
In these proceedings Comcare contends that Ms Labuguen’s condition was “a result of”, among other things, six reasonable administrative actions, which include the decisions to:
·not promote MsLabuguen to the position of finance manager
·issue Ms Labuguen with a written caution in April2008 and to refuse to remove it from her personnel file
·formally reprimand and sanction MsLabuguen in March 2009.
Ms Labuguen contends that the main cause of her illness was the discovery of significant financial irregularities within FISSO, and the failure of FISSO and other Departmental managers to act on her legitimate concerns. She rejects the proposition that her condition resulted from her failure to be promoted to the position of finance manager and contends that each of the six purported reasonable administrative actions were neither reasonable, nor taken in a reasonable manner.
The primary issues to be determined are:
(a)whether Ms Labuguen’s adjustment disorder was suffered as a “a result of” one or more of the six administrative actions nominated by Comcare
(b)if so, whether each action constitutes “reasonable administrative action in respect of [Ms Labuguen’s] employment”, and
(c)whether each action was taken in a reasonable manner.
STATUTORY FRAMEWORK
Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee. Injury is defined by s 5A(1) of the Act to include “a disease suffered by an employee but does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” [Emphasis added].
Reasonable administrative action is taken to include “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” (s 5A(2)(f)).
BACKGROUND
Ms Labuguen commenced in the Australian Public Service in 1988.
As noted in 2007 she was unsuccessful in her application for appointment to the position of FISSO finance manager. Her application had been supported by her immediate supervisors, Lieutenant Commander (LCDR) Jeff Milward, the Deputy Director of FISSO (January 2005 to December 2007), and Commander (CMDR) Murray Smith, the Director of FISSO (December 2004 – March 2009).
In a reference provided in support of Ms Labuguen’s application, LCDR Milward described her as a “diligent and tireless worker well able to fulfil … the role [of FISSO Finance Manager]”. He explained that she had been undertaking the role of both finance manager and finance officer for a number of years “without assistance” during a period of significant growth in FISSO’s budget and staff numbers, which coincided with a period of “considerable increase in financial complexity”. In a letter supporting her application for promotion, CMDR Smith was also highly complementary of Ms Labuguen’s work within FISSO.
After being notified that her application for promotion had been unsuccessful Ms Labuguen became extremely upset and sent a number of emails to members of the selection committee and others, using charged and emotional language. Among other things, she stated that when she applied she had misgivings that two members of the selection committee would give her a “fair go”, that she been discriminated against and felt that she had been “dumped”. LCDR Milward directed Ms Labuguen to cease corresponding with the committee, which she did after he met with her on 29 October 2007. According to LCDR Milward the conduct, while regrettable, was “out of character”. He stated that Ms Labuguen had expressed remorse and explained that at the time she was under considerable pressure both at home and at work.
Ms Leary-Smith commenced in the role of finance manager of FISSO in December 2007. According to Ms Labuguen she cooperated and assisted in the handover to Ms Leary-Smith. Ms Leary-Smith disputed that claim.
On her return from annual leave in late January 2008, Ms Labuguen resumed her position as finance officer, under Ms Leary-Smith’s supervision. Problems soon arose. Ms Labuguen quickly formed the view that Ms Leary-Smith lacked the necessary skills and experience and was struggling in her role. She testified that her relationship with Ms Leary-Smith was not a good one.
On 14 February 2008, Ms Labuguen identified what she considered to be a major financial irregularity within FISSO — an unauthorised expenditure of $1.8M. According to Ms Labuguen despite raising the matter on that day and “every day over the next couple of months”, Ms Leary-Smith ignored her concerns. Shortly after making that discovery, Ms Labuguen commenced emailing her supervisors and colleagues about her concerns. She believed that her concerns fell on “deaf ears” and she was being “locked out” of FISSO.
In oral evidence, Ms Labuguen denied that her actions constituted a “personal attack” on Ms Leary-Smith. On her account she merely wanted Ms Leary-Smith held to account for her actions and the financial irregularities within FISSO rectified. She said she highlighted Ms Leary-Smith’s mistakes because she wanted her managers to see Ms Leary-Smith was incompetent.
On 17 March 2008 Ms Labuguen met with her “second level” supervisor, LCDR Andrew James who had taken over from LCDR Milward as Deputy Director of FISSO. Ms Labuguen says that the meeting was held to discuss the $1.8M irregularity and at that meeting LCDR James told her not to approach him with any financial issues or queries, directing her to raise these issues with her “first level” supervisor, Ms Leary-Smith. In an internal minute LCDR James recorded that he directed Ms Labuguen to “tone down” her emails which he described as “forceful and unforgiving” and to restrict the persons copied into her emails, especially those where she had criticised other staff. He recorded telling Ms Labuguen he would not tolerate any further emails critical of Ms Leary-Smith such as those sent in early March 2008, [and, any further allegation of misconduct must be “factually correct and presented appropriately”. He recorded that he gave Ms Labuguen “ample opportunity” to raise grievances and explain her emails but found her allegations to be “biased and mostly unfounded”.
On 3 April 2008 Ms Labuguen telephoned Ms Leary-Smith to discuss her Performance Feedback Assessment and Development Scheme (PFADS), a performance management document that was due for renewal. Ms Leary-Smith alleged Ms Labuguen was very aggressive on the phone, calling her dishonest and a bully and accusing her of deliberately delaying Ms Labuguen’s PFADS.
Later that day, Ms Labuguen sent emails to Ms Leary-Smith, CMDR Smith and LCDR James complaining about the delay in finalising her PFADS. Ms Labuguen asserted that Ms Leary-Smith had deliberately delayed finalising her PFADS, pointing out that she had submitted a first draft over two months ago. In her email to CMDR Smith and LCDR James, Ms Labuguen accused Ms Leary-Smith of bullying, incompetence and surfing the internet at work.
Quick assessment conducted by John Crawford
In early April 2008 CMDR Smith referred for quick assessment (QA) — a tool used by the Department to quickly assess the known facts of an allegation of misconduct — in response to allegations of “unacceptable behaviour” made by Ms Leary-Smith and Ms Labuguen, against one another.
The QA was conducted by Mr John Crawford. In a report dated 11 April 2008, he wrote:
[Ms Leary-Smith] believes her subordinate [Ms Labuguen] has no respect for her authority … [and] is on a mission to make the workplace unbearable so she may leave and [Ms Labuguen] may then be assessed for suitability for the supervisors [sic] job …
…
[Ms Labuguen] believes [Ms Leary-Smith] is on a go slow in regard to her PFADS and is very frustrated it is late.
…
[Ms Labuguen] is continuously annoyed at [Ms Leary-Smith] leaving “post-it” notes on her keyboard rather than communicating with her.
[Ms Labuguen] assures me she holds no grudge against [Ms Leary-Smith] in regard to her appointment.
Mr Crawford concluded:
[Ms Labuguen’s] behaviour including phone calls and emails [to Ms Leary-Smith] does fall into the category of harassment and workplace bullying
…
The tone and wording of her emails [was probably attributable to] her poor grasp of English [and was] not necessarily vindictive.
I have serious doubts about Ms Leary-Smith’s abilities as a supervisor.
…
[Ms Leary-Smith] seems “unable to challenge her peer”, a necessary requirement for a supervisor, to be effective.
[T]he issue is a result of a strong worker with a lot of confidence in the Workplace taking advantage of the situation from a weaker, emotional, less confident supervisor.
He recommended that: Ms Labuguen’s PFADS be completed ASAP; the allegations and counter allegations be referred for further investigation; training be provided to Ms Leary-Smith in supervisor responsibilities, and to Ms Labuguen, in communication skills; that mediation be attempted.
On 14 April 2008 CMDR Smith wrote to Ms Labuguen and issued a caution. He referred in that letter to:
·Ms Labuguen’s conduct in sending “abusive and harassing” emails to members of the selection panel in October 2007 and LCDR Milward’s direction to cease doing so
·Several subsequent incidents that continue to demonstrate “unproductive and unacceptable behaviour”, including the widely distributed and “strongly composed emails” about Ms Leary-Smith
·The phone call with Ms Leary-Smith on 3 April 2008.
He reminded Ms Labuguen of the need to adhere to the APS Code of Conduct and to treat others with respect and courtesy. He concluded:
I caution you that a failure to conduct yourself appropriately in the workplace may constitute a breach of the APS Code of Conduct. Pending the outcome of the Quick Assessment into the most recent incident, I may refer the QA to the Code of Conduct Delegate for action. Any further incidents, reported or observed, may be referred to the Code of Conduct Delegate for action. The Delegate may apply a range of sanction[s] for misconduct if found proven … [ranging] from a reprimand through to termination of employment.
In reply to CMDR Smith on 16 April 2008, Ms Labuguen wrote:
I want to state that my unsuccessful application for the [finance manager] position last year is finished – water under the bridge. I was upset at the time. I felt devastated. I blew a lot of steam. Call it bad temper or unprofessionalism or whatever, I was distressed, but Jeff [Milward] and I worked it out, and I put it behind me in Nov[ember] 07, and moved on.
…
I haven’t sent a strongly composed email to anyone since [17 March 2008], but for the two emails to Angela [Leary-Smith], Andy [James] and you about the continuing delay in signing my PFADS, which still hasn’t been signed.
On 3 April 2008 … I rang Angela [Leary-Smith]. I was not abusing at all. … I was frustrated and angry about yet another delay. I put my thoughts in writing in strongly composed emails – one to Angela, and one to Andy and you … I wasn’t focused on deriding Angela as you described it. I was focused on conveying my frustrations about my PFADS to Andy and you, which is absolutely proper.
Ms Labuguen asserts that no disciplinary action was taken against Ms Leary-Smith for the matters about which she had complained, included the delayed PFADS. There is no evidence to refute that claim.
Ms Labuguen directed to pay $1.8M invoice
According to Ms Labuguen, on 8 May 2008 Ms Leary-Smith directed her to prepare paperwork to enable payment of an invoice for $0.9M. Ms Labuguen was of the opinion that the invoice related to a “complex procurement” which neither Ms Leary-Smith nor CMDR Smith were authorised to approve. Later that day she complained to LCDR James about Ms Leary-Smith’s “abusive behaviours towards me”:
I said, it doesn’t look normal or right. She said, it’s a capability payment, I am your supervisor, just do it. The she turned and walked away from me. I heard her say aloud, what a dumb person. I just started crying.
Ms Leary-Smith, in an email dated 12 May 2008, disputed that account and denied saying “I am your supervisor, just do it”, or “what a dumb person”. She did not address the claim that she requested Ms Labuguen to prepare the approvals for the invoice.
On 8 May 2008 Ms Labuguen reported the $1.8M irregularity to Navy Systems Command Headquarters in Canberra. She testified that when she told Mr Paul Cass (Director Navy Communications Engineering) about the irregularity he said “the boss will be ropable … we told FISSO we were not going to do that project”.
QA conducted by Warrant Officer Osbourne
CMDR Smith referred Ms Labuguen’s complaint about Ms Leary-Smith’s conduct on 8 May 2008 for QA. That assessment was conducted by Warrant Officer Garry Osborne. He found the allegation that Ms Leary-Smith used the words “what a dumb person” to be unsubstantiated and that Ms Labuguen’s refusal to complete the task as directed by Ms Leary-Smith to be inappropriate. He recommended that Ms Labuguen be referred to the Manager of Conduct and Performance (a unit within the Department of Defence responsible for investigating and determining breaches of the Code of Conduct) for performance assessment and counselling. He also recommended mediation.
Ms Labuguen alleges being bullied into silence
On 13 May 2008 in an email to Natalie Nugent, FISSO’s resource manager based in Canberra, Ms Labuguen wrote that Ms Leary-Smith and LCDR James were bullying her “into silence and submission”. That allegation was the subject of a QA conducted by HR officer, Margaret Staines. Ms Staines stated she did not think there was a case for bullying but recommended referral of the allegation in the hopes of building better communication and respect between Ms Labuguen and Ms Leary-Smith.
Investigation into breach of APS Code of Conduct
On 2 June 2008 Ms Labuguen was notified that an investigation would be conducted by the Conduct and Performance section to determine whether she had breached the APS Code of Conduct. Ms Labuguen took stress leave after receiving this notice, then took previously planned annual leave until mid-July.
In July 2008 LCDR Glenda Shaw was appointed as FISSO business manager and became Ms Labuguen’s direct supervisor. Ms Labuguen was no longer required to report to Ms Leary-Smith.
The delegate appointed by the Secretary of the Department to determine the allegations made about Ms Labuguen, Ms Melissa Donaldson wrote to Ms Labuguen on 28 July 2008 and outlined 23 alleged incidents of inappropriate behaviour, said to have occurred between October 2007 and June 2008. Eight related to Ms Labuguen’s correspondence with the selection committee in 2007. The remainder related to Ms Labuguen’s dealings with Ms Leary-Smith; her alleged failure to treat Ms Leary-Smith with respect and her practice of making disparaging comments about Ms Leary-Smith in widely distributed emails.
At Ms Donaldson’s invitation, Ms Labuguen responded to those allegations in a minute dated 8 September 2008. She admitted sending the members of the selection committee but stated: “I showed remorse. The matter was closed permanently”. She denied the substance of the incidents alleged to have occurred between February and June 2008: “every aspect of these allegations, incidents and messages can be explained as fair and reasonable behaviour at the time”. She wrote that she always tried to comply with the Code of Conduct, and explained:
The period between February and June 2008 was extremely difficult for me. During this period I was derided and excluded from meaningful participation in the workplace by my supervisor. I tried to alert senior management. I was genuinely concerned about best practice and good governance of FISSO at all times, and I was concerned about my own welfare.
In August and September 2008 Ms Labuguen wrote to Mr Greg Bunnett, the case officer charged with the conduct of the investigation into her alleged breach of the Code of Conduct, and responded to each alleged incident itemised in the 28 July 2008 notice. In a minute addressed to Mr Bunnett dated 5 January 2009, LCDR James challenged those accounts and claimed Ms Labuguen continued to misrepresent his involvement.
According to Ms Labuguen on 22 September 2008, she reported to Ms Shaw unauthorised expenditure totalling $5M, which included the $1.8M she had identified in February 2008. Ms Labuguen says that this report was the trigger for the review of FISSO’s financial management conducted in September and October 2008 and the subsequent Knoll inquiry (see [57] to [69] below).
On 2 October 2008 Ms Labuguen emailed CMDR Smith and Mr Bunnett claiming Ms Leary-Smith spent her time destroying her reputation instead of managing the finances of FISSO and alleging that Ms Leary-Smith had among other things, misled the investigation. On 10 November 2008 Ms Labuguen was notified that these emails would be investigated as possible further breaches of the Code of Conduct because they “inappropriately air criticisms of FISSO employees and/or management processes”.
Ms Labuguen attended a “performance exchange” meeting with Ms Leary-Smith on 14 October 2012. On 12 November 2008 Ms Labuguen applied for a review of “employment action” regarding her PFADS assessment. She disputed her assessment as “partially effective” and believed the decision made by LCDR James to defer consideration of her 2008 performance progression until March 2009 to be extremely unfair.
In an email to LCDR James sent on 27 November 2008 Ms Labuguen, in referring to the time taken to finalise her PFADS, wrote “your attendance to timeliness is unconscionable”. This comment was the subject of a formal complaint filed by LCDR James.
On 28 November 2008 CMDR Smith met with Ms Labuguen in the presence of Ms Shaw. CMDR Smith recorded telling Ms Labuguen that her email of 27 November 2008 raised concerns regarding tone and content, and she should be very careful about her emails as this had previously been investigated.
In December 2008, CMDR Smith reported to Mr Bunnett that Ms Labuguen’s relationship with almost all senior staff within FISSO, with the possible exception of himself, had deteriorated. He asked that the investigation into her alleged breach of the Code of Conduct be expedited as its lack of resolution was impacting on productivity within FISSO.
On 5 December 2008 Ms Labuguen was informed of further allegations and told these would be investigated.
On 10 December 2008 Ms Labuguen met with Petra Downes, HR Manager of Navy Systems Command, Katie Alexander, HR Manager of Navy Certification and Safety Branch, and Ms Shaw. The stated purpose of the meeting was to prevent further deterioration of the working relationship between Ms Labuguen and other FISSO staff. Ms Labuguen requested the meeting be postponed as she was unwell. That request was refused. In an email to Mr Bunnett attaching the minutes of the meeting with Ms Labuguen’s comments, Ms Alexander said:
During the meeting on 10 Dec we finalised the meeting with some action points on how Jocelyn wanted to move forward – yet 1 week after her return to work she is completely contradicting her previous comments … [W]hat she says to me tends to be the complete opposite of how she behaves and then she denies and contradicts everything that has been previously said.
For example, the minutes prepared by Ms Alexander state:
JL – is willing to work on developing good relationships and thinks that is important. JL apologised for the tone of her recent email to ALS.
In response to the minutes, Ms Labuguen wrote:
I deny these allegations specifically that I have written anything disrespectfully or discourteous to ALS. I offered an ambit apology if I had inadvertently offended her.
At the conclusion of the meeting, Ms Shaw suggested Ms Labuguen take leave for the remainder of December and return to work in January 2009.
On 12 December 2008 Ms Labuguen wrote to CMDR Smith regarding the formal review of employment action she had requested in November 2008. She ended that minute:
I am away on personal leave (illness, with medical certificate) at the moment. I am suffering a stress disorder … I ‘broke down’ in period 18-23 Oct 07. In the period 4 Feb 08 to date I have felt ignored, excluded, bullied and coerced.
Ms Labuguen found to have breached the Code of Conduct
In January 2009 Ms Alexander recorded in a file note that Ms Labuguen was contacting Ms Natalie Nugent, FISSO’s resource manager based in Canberra, with complaints about Ms Leary-Smith and the way work was being completed at FISSO. Ms Alexander noted:
Jocelyn had contacted Natalie (as a NSC Resource Manager) in regards to a FISSO commitment register that she felt was not being completed correctly.
… Angela was concerned that firstly Jocelyn was escalating issues without consulting with her direct supervisors and in effect trying to make Angela “look bad”.
…
Jocelyn tends to call Natalie to discuss things and will make insinuations about other people.
… Although she did not directly name Angela she insinuated that Angela was not doing her job properly …
Apparently Jocelyn discussed the fact that she is not really speaking to Glenda or Angela and [at] the meeting on 10 Dec with HR and Glenda, Jocelyn did not speak her mind at the meeting as she did not have a support person with her. She apparently just agreed with everything that was said.
On 27 January 2009 Mr Bunnett filed his report into Ms Labuguen’s alleged breach of the Code of Conduct. He wrote that the emails sent by Ms Labuguen in 2007 about her failed promotion “appear[ed] to have harassed the individuals that did not need to be involved, and failed to treat them with respect and courtesy”. He made similar comments about the emails sent by Ms Ms Labuguen throughout 2008. Mr Bunnett wrote that Ms Labuguen believed her behaviour was justified on account of:
·English is her third language
·The first series of emails being sent while she was distraught at not getting a promotion and concerned because of the stress of an ill husband
·The second series of emails being sent during a period when her supervisor would not talk to her “face-to-face”
·She always copies all necessary addressees
·She has been proven “right” in that a recent audit of FISSO has revealed some errors in financial management.
Mr Bunnett recommended:
These actions are apparently quite deliberate and continue in [the] face of direction to stop and the mitigating factors listed by Ms Labuguen appear [to] be largely able to be discounted. A strong message must therefore be sent to Ms Labuguen in order to remind her of her obligations.
Ms Donaldson found there was sufficient evidence to suggest Ms Labuguen had breached the Code of Conduct. In an Investigation Report dated 2 February 2009 she wrote:
It is evident there has been a significant breakdown in workplace relationships between Ms Labuguen and her supervisor Ms Angela Leary-Smith. I believe this is mainly contributed to Ms Labuguen not being successful in a job promotion that Ms Leary-Smith was. This appears to have caused considerable stress and angst for Ms Labuguen and has resulted in her behaviour being less than acceptable in the workplace, specifically towards Ms Leary-Smith. Ms Labuguen makes claims that the breakdown in relationship is a result of Ms Leary-Smith’s behaviour towards her in that she claims Ms Leary-Smith consistently reminds Ms Labuguen of her APS level and “puts her in her place”. There is no evidence to substantiate this and Ms Glenda Shaw and CMDR Smith both support that the work environment is not supportive and that Ms Labuguen’s behaviour can be contributed [sic] to her disappointment regarding the failure to win the APS 5 position.
Ms Labuguen was invited to, but did not comment on, the sanctions being considered by Ms Donaldson — a formal reprimand and reassignment of duties. On 12 March 2009 Ms Labuguen was notified of the decision to impose those sanctions.
On 16 March 2009 Ms Labuguen was reassigned to the Maritime Psychology unit based at Garden Island, Sydney. As noted, in July 2011 her employment was terminated for an incident unrelated to her conduct within FISSO.
The Knoll inquiry
In December 2008, Lieutenant Commander Karl Knoll was appointed to inquire into the financial management of FISSO, following a review conducted in September/October 2008, which identified ” systematic financial management problems” within FISSO and four breaches of reg. 13 of the Financial Management and Accountability Regulations 1997 (Cth) (the FMA Regulations). Regulation 13 of the FMA Regulations provides that a person must not enter into a contract, agreement or arrangement under which public money is, or may become, payable unless a proposal to spend money under that contract or agreement has been approved under regulation 9 or 10.
In a report handed down in June 2009 (the Knoll Report), LCDR Knoll found proven each of the four reported instances of non-compliance with the FMA Regulations. The report examined each in detail. Two are summarised below.
(i) Procurement for the Collins Class LAN
LCDR Knoll found that FISSO made 28 procurements for the Collins Class LAN (CCLAN) totalling $0.5M without the requisite delegate approval. He attributed this largely to FISSO’s failure to maintain an accurate commitment register — an accounting tool used to record and monitor approved expenditure against budget. LCDR Knoll (at [24]) wrote that an “accurately populated and maintained commitment register is fundamental to ensuring FISSO acts within its delegation and funding allocation”.
LCDR Knoll was critical of the failure of “Level 7” — a unit within the Department responsible for providing support to, and financial oversight of, FISSO — to delay conducting an audit of FISSO until September 2008. In his opinion had Level 7 acted sooner, the practice of FISSO committing funds without the necessary approvals may not have been prevented but the magnitude of the problem would not have been as great.
(ii) Commitment of $0.9M without official delegation
LCDR Knoll found that FISSO had committed just under $1M to a Navy information technology project, without obtaining proper financial approval. That project had been identified as Navy’s “highest priority minor project” in 2008. LCDR Knoll wrote that while no funds had been allocated to the project, funds were expended on “scoping the project” on the basis of informal indications that the project was likely to be assigned significant funds in 2007/2008 and 2008/2009.
LCDR Knoll wrote that given the priority placed by the Navy on this project it was highly likely that staff within FISSO and other sections of the Department involved in financial management were under considerable pressure — real or perceived — to ensure the project was delivered on time and within budget, even before it had been formally approved.
In July 2008 FISSO was advised that funding for the project was unlikely to be approved and was directed to immediately stop work and to reconcile all expenditure. The latter proved difficult because as LCRD Knoll discovered, FISSO had failed to properly maintain the commitment register during 2008.
HR issues within FISSO
Among other things, LCDR Knoll examined FISSO’s operations and the oversight role performed by Level 7.
He found that the appointment of Ms Leary-Smith caused problems within FISSO and resulted in complaints and counter-complaints of unacceptable behaviour, harassment and bullying by Ms Labuguen and Ms Leary-Smith. He noted that the appointment of Ms Leary-Smith coincided with the departure of LCDR Milward. He was complimentary of LCDR Milward’s financial management of FISSO and concluded that under the period of his tenure, FISSO’s “financial rigour” was reasonably sound.
LCDR Knoll found (at [49]) that Ms Labuguen’s failure to correctly populate and maintain FISSO’s commitments register and Ms Leary-Smith’s failure to ensure the register was managed correctly were central to the four instances of non-compliance the subject of the Inquiry. In his opinion these failures were the result of, Ms Labuguen and Ms Leary-Smith not being provided with the necessary information to carry out their respective roles (at [21] and [23]).
LCDR Knoll found that many factors contributed to the four identified breaches of the FMA Regulations, which included the complexity and diversity of the financial matters FISSO was required to manage; the loss of corporate knowledge within FISSO and Level 7; the relative inexperience of the FISSO team; the delay in identifying and acting on reported non-compliance; and staffing problems within FISSO.
LCDR Knoll wrote (at [62]): “the human resources issues uncovered during this Inquiry are probably the single biggest contributor to the position FISSO found itself in”. He commented:
[Under the supervision of LCDR Milward] Ms Labuguen provided excellent support raising the appropriate paperwork, maintaining the commitments register and paying the bills. Soon after Ms Leary-Smith won the position Ms Labuguen’s demeanour, attitude and ability to work unsupervised as well as her relationship with Ms Leary-Smith became untenable.
…
When Ms Leary-Smith arrived there was an almost immediate friction between herself and Ms Labuguen that soon escalated into claims and counter claims of unacceptable work place behaviour and harassment. Testimony from FISSO staff indicated that despite intervention at a local level, Ms Labuguen began a work to rule campaign and combined with her relationship with Ms Leary-Smith the situation soon became untenable. Intervention by LCDR James resulted in three [Quick Assessments] being conducted and professional mediators being employed to try to resolve the problems. All attempts to resolve the issues at a local level failed and Code of Conduct and Performance were involved to sort the HR issue out. General consensus between FISSO staff was that while it could not be proven, it appears that Ms Labuguen’s behaviour was designed to see Ms Leary-Smith fail as the [financial manager].
…
When it became apparent that [Ms Leary-Smith] and [Ms Labuguen] could not work as a team, management attempted to resolve the issue within the powers that they had. The [financial manager] and [financial officer] would normally work as a team in the same work area. FISSO management separated the individuals in an attempt to diffuse the escalating situation. The [financial manager] would normally be the first level supervisor for the [financial officer]. This was changed to [LCDR James] in order to ensure [Ms Labuguen] was treated fairly in the workplace. Soon after [LCDR James] was appointed as her first level supervisor [Ms Labuguen] began to make complaints about him. A mediator was brought in to attempt to resolve an issue that was quickly becoming untenable. After the mediator’s attempts to resolve the issue were unsuccessful, code of conduct and performance were brought in … to resolve the matter. The sanction imposed by the delegate was to reassign [Ms Labuguen] to another workplace. This process took 14 months to resolve.
LCDR Knoll reported that he found no evidence of any person having acted criminally or being deliberately negligent. He made a number of recommendations including staff training and education.
WAS MS LABUGUEN’S CONDITION “A RESULT OF” HER FAILURE TO BE PROMOTED TO THE POSITION OF FINANCE MANAGER?
Ms Labuguen’s adjustment disorder will be suffered as “a result of” her failure to be promoted to the position of finance manager, if it was an operative cause of the condition, even if there were other unrelated causes. (Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at [18] – [26]; Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 125 ALD 181 at [54] – [56]; Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1 at [29]).
Ms Labuguen contends that her condition was caused primarily by the distress she experienced on uncovering financial irregularities within FISSO and the failure of her managers to act on, and investigate, her allegations of financial impropriety. She claims her condition was also contributed to by the bullying and harassment she was subjected to by her managers after she continued to raise allegations of financial mismanagement.
Ms Labuguen claims that while she was disappointed with the decision not to be appointed to the role of finance manager she quickly recovered and “moved on”. In support of that claim she points to CMDR Milward’s testimony that despite what he believed to be her uncharacteristic conduct in sending “regrettable” emails to members of the selection committee, he saw no evidence of that behaviour being repeated after he met with Ms Labuguen on 29 October 2007. He testified that in the period between that meeting and when he left FISSO in December 2007, Ms Labuguen seemed cheerful and accepting of the situation.
Comcare concedes that Ms Labuguen’s condition was caused in part by her distress at discovering financial irregularities and the manner in which those irregularities were handled, but contends that the failed promotion and the other purported reasonable administrative actions also contributed to her condition. Comcare argues that Ms Labuguen’s claim that she “moved on” is inconsistent with the evidence which, it asserts, indicates that she continues to feel aggrieved with that decision to this day.
Medical opinion about the causes of Ms Labuguen’s adjustment disorder
Opinion of GP
In a report prepared in January 2011 at the request of Comcare, Ms Labuguen’s GP, Dr Kenneth Phoon, wrote that Ms Labuguen first reported to the medical practice where he worked, experiencing stress at work on 18 May 2008. He wrote that there was no history of Ms Labuguen experiencing stress or anxiety prior to 2008 and it was not until March 2009 that he recommended that Ms Labuguen take “stress leave”. In his opinion Ms Labuguen’s condition, which he described as “recurring anxiety and depression” was caused by work, specifically poor interaction with her immediate supervisor.
Opinion of Dr Ian Burman
In late 2010 Ms Labuguen was referred by the Department for assessment to psychiatrist, Dr Ian Burman. In a report dated 12 November 2010, Dr Burman outlined the history given by Ms Labuguen. It contained no mention of the failed promotion. Dr Burman was of the opinion that when he saw Ms Labuguen in 2010 there was no evidence of a psychiatric disorder. He thought it possible that she may have had an adjustment disorder in 2008 “apparently due to her mistaken perception of bullying and harassment in the workplace”.
Opinion of Drs Skinner and Stephan
Psychiatrists, Drs Peter Stephan and Yvonne Skinner each prepared reports that were tendered in these proceedings and gave oral evidence concurrently.
Dr Skinner assessed Ms Labuguen at the request of Comcare in May 2013. In a report dated 24 May 2013, Dr Skinner wrote that in her opinion Ms Labuguen sustained an adjustment disorder in 2008 or 2009, which was probably contributed to being reprimanded for her conduct at work, which Ms Labuguen perceived to be bullying and harassment.
Ms Labuguen was referred to Dr Stephan for treatment in November 2010. In a report dated 27 January 2011 he wrote that in his opinion Ms Labuguen’s adjustment disorder was now chronic and had been caused by the failure to resolve the financial irregularities she uncovered in February 2008, together with her subsequent transfer out of FISSO, after years of faithful service.
In oral evidence, after being taken to the evidence about the period between Ms Labuguen being notified that she was unsuccessful in her application for promotion (October 2007) and discovering financial irregularities (February 2008), Dr Skinner revised her position and stated that it was possible that Ms Labuguen’s adjustment disorder had commenced before February 2008. She stated that Ms Labuguen’s dissatisfaction with not being promoted probably “set the scene” for things to later go wrong. Dr Stephan agreed and thought the failed promotion could have been an “initial factor” and part of the process. He stated that Ms Labuguen’s subsequent discovery of a financial irregularity exaggerated her initial feeling of disappointment. On questioning by Ms Labuguen’s husband, Mr Hickey, and being taken to the evidence of Ms Labuguen not consulting her doctor about her symptoms of distress until seven months after being notified of her failed application for promotion, Dr Stephan revised his opinion and stated that Ms Labuguen’s disappointment over the failed promotion was probably not a cause of her illness.
Drs Skinner and Stephan agreed that the series of disciplinary actions, which commenced in April 2008, contributed to Ms Labuguen’s condition. Dr Stephen was of the opinion that Ms Labuguen’s condition was exacerbated by the way the matter was handled by the Department. Dr Skinner agreed with the later proposition: in her opinion had Ms Labuguen not been disciplined, or had she been dealt with differently, she might have recovered more quickly or her adjustment disorder might have taken a different course.
The experts agree that the task of identifying the causes of an adjustment disorder can be difficult. As Dr Skinner explained, identifying the particular stressor that contributes to the development of an adjustment disorder is inherently difficult because individuals react differently to different stressors. She went on to explain that in giving a history, a person might report problems they perceive to be causative of the disorder, and overlook, or not recognise, other factors which might also have played some role. This, according to Dr Skinner presents a further difficulty in identifying the causes of an adjustment disorder.
Consideration
I accept Ms Labuguen now holds the genuine belief that she quickly “got over” the failed promotion. However I am unable to accept that claim because it is inconsistent with the available evidence, notably the contemporary evidence. Ms Labuguen’s uncharacteristic behaviour in contacting and berating members of the selection panel and others, illustrates the extent to which she was effected by the decision. On receiving notice of that decision she widely circulated a number of emails containing highly colourful and emotive language and persisted even after CMDR Milward gently suggested by email that she cease doing so. It is relevant in my opinion that up to that point there is no evidence that Ms Labuguen had ever acted inappropriately in the workplace or that any of her managers had cause to counsel or reprimand her. CMDR Milward considered Ms Labuguen to be a model employee and remains of that opinion.
Ms Labuguen’s claim that she quickly “got over it” is also inconsistent with her admission in submissions that she took seven days leave (a combination of “flex” and “personal” leave) after 22 October 2007 because she “succumbed as much to being short-staffed and over-worked since 2007, and that she used those days … to recompose herself before resuming her duties”.
As the experts point out, identifying the cause or causes of an adjustment disorder is seldom an easy task. This case is no exception. Both consider the discovery made by Ms Labuguen in February 2008 and her belief that the Department’s response to her concerns was inadequate to be the major causes of her adjustment disorder. The difference between Drs Skinner and Stephan about the role played by the promotion decision in my opinion is one of degree. Dr Skinner is confident that it played a role. Despite revising his initial opinion, Dr Stephan’s evidence taken overall suggests that he considers it a possibility although unlikely. The material provided by Ms Labuguen’s GP and Dr Burman is of limited assistance as neither appear to have been given a history about the events surrounding the failed promotion.
The absence of any evidence of Ms Labuguen seeking treatment prior to May 2008, while relevant, is not determinative. That there is a delay between the period a person experiences the stressor and seeks medical treatment or requires time off work does not necessarily mean the stressor did not contribute to the condition. If that were so, Ms Labuguen’s February 2008 discovery would be excluded as a cause of her condition — a proposition at odds with the weight of medical evidence.
Having carefully considered all the medical evidence I prefer the opinion held by Dr Skinner that the promotion decision was one of the causes of Ms Labuguen’s condition. That opinion is reasoned and plausible and not inconsistent with the available evidence. I am satisfied on the balance of probabilities that the promotion decision was an operative cause of Ms Labuguen’s condition.
WAS THE DECISION NOT TO PROMOTE MS LABUGUEN “REASONABLE” ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER?
Comcare contends that there is no evidence to suggest that the decision not to appoint Ms Labuguen to the position of finance manager was not reasonable or was not taken in a reasonable manner. It is not entirely clear from the written submissions prepared on behalf of Ms Labuguen and filed on 31 March 2014 (the submissions) whether she now contends that that decision was not “reasonable”. Part of submissions suggest that Ms Labuguen believes the decision to be reasonable and to have been taken in a reasonable manner:
102. … Was the action reasonable?
103. Yes.
104. … Was the action undertaken in a reasonable manner?
105. Yes, though it was seriously flawed.
In contrast (at [82]) of her submissions Ms Labuguen asserts that the decision to promote Ms Leary-Smith and the failure to promote Ms Labuguen was “undertaken in an unreasonable manner” and lists a number of purported irregularities in the selection process.
Given this apparent inconsistency and because Ms Labuguen is not legally represented, I decided it would be unsafe to rely on any apparent concession and proceed on the basis that Ms Labuguen contends the promotion decision was neither reasonable, nor taken in a reasonable manner.
Should “late” material be taken into account?
Comcare contends that the matters raised in Ms Labuguen’s submissions (at [80] to [101]) (the offending submissions) were not the subject of evidence or argument during the hearing and should be disregarded by the Tribunal. In addition Comcare contends that the Tribunal should not have regard to the report of the selection committee referred to in Ms Labuguen’s submissions, which was neither tendered, nor referred to, at any stage during the four-day hearing.
The situation that has arisen, where in final written submissions, a self-represented party seeks to rely on new “evidence” and make fresh arguments, is not uncommon. It reflects the difficulty many self-represented parties have in distinguishing evidence from submissions and, when making submissions, discovering material they believe to be relevant, is not before the Tribunal. Whether that material should be taken into account requires consideration of, among other things, the nature of the evidence sought to be adduced, the reason for the late application, and any prejudice likely to be suffered by the opposing party. Those factors must be assessed having regard to the direction that the Tribunal provide a mechanism of review that is “fair, just, economical, informal and quick” (s 2A of the Administrative Appeals TribunalAct (Cth) 1975).
I decided notwithstanding the lateness of the application and the resultant costs that Comcare would invariably incur, to admit the selection committee’s report. In making that decision I had regard to, among other things, Mr Hickey’s mistaken belief that the report had been tendered, the practical difficulties of disentangling from the offending submissions those parts that did not rely on the report and the relevance of the report.
Having decided on that course, I invited Comcare to comment on the report and respond to Ms Labuguen’s written submissions. Without invitation, or making an application for admission, Comcare attached to its submissions filed on 27 June 2014 new “evidence” — the Department’s policy on recruitment. It is of concern that a legally represented party would take this course. Having regard to the policy without offering Ms Labuguen the opportunity to comment on it or meet the point made by Comcare about the policy, would be inconsistent with the Tribunal’s obligation to afford all parties procedural fairness. Nonetheless I decided to admit the policy given its apparent relevance and because it was provided in response to evidence that had been tendered at hearing.
By directions made on 30 June 2014, Ms Labuguen was invited to comment on the policy and/or respond to Comcare’s submissions about the policy. She did so in submissions filed on 3 July 2014, and in addition provided new “evidence” and raised further issues. This material included allegations of nepotism which had not previously been raised. While in my view some leniency should generally be afforded to self-represented parties, I decided not to admit this material or have regard to those parts of Ms Labuguen’s submission which did not conform with the direction issued on 30 June 2014. In my opinion, Ms Labuguen was given a reasonable opportunity to present her case. To have regard to further uninvited submissions and evidence at this late stage of the proceedings, would delay the finalisation of the review. For the same reasons I decided not to have regard to further submissions prepared by Ms Labuguen filed in the afternoon of 3 July 2014.
Was the failure to promote “reasonable” administrative action taken in a reasonable manner?
In Comcare v Martinez(No 2) [2013] FCA 439 Robertson J cited with approval the following passage in Keen v Workers Rehabilitationand Compensation Corporation (1998) 71 SASR 42 at 47-48, where Lander J, commenting on a similar (but not identical) provision to s 5A of the Act contained in the Workers Rehabilitation and Compensation Act 1986 (SA), stated:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration action was taken in a reasonable manner by the employer.
In a separate judgement Bleby J said (at 63) (cited with approval by Cowdroy J in National Australia Bank Limited v KRDV [2012] FCA 543 at [51]):
Whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
In determining whether the direction was taken in a reasonable manner, the question posed is not whether it could have been taken more reasonably (Martinez (No 2) at [81]).
Applying those principles it is apparent that the determination of whether the decision not to promote Ms Labuguen was reasonable involves an objective assessment, taking into account the decision itself, the appointment process, and the circumstances surrounding the process.
The appointment of Ms Leary-Smith was made on the recommendation of the selection committee: LCDR Naughton, Alison Clarkson, Assistant Director Budgets and Estimates, Navy Systems Command and Ms Ruth Loundes, Resource Manager Budgets and Estimates, Navy Systems Command. The committee ranked Ms Labuguen third in order of merit.
Apart from the references in the Knoll report (see [62]-[64]) and the report prepared by the selection committee, there is little available material about the selection process.
LCDR Knoll wrote that even though Ms Clarkson considered Ms Leary-Smith to be the “standout candidate”, it is likely that she developed concerns about Ms Leary-Smith’s ability to manage FISSO’s finances during the handover in late 2007 / early 2008. LCDR Knoll described Ms Leary-Smith’s qualifications at the time she was recruited to the position of finance manager of FISSO as “limited to simple procurement, introduction to accounting and a course on managing money”.
Despite these concerns LCDR Knoll did not criticise the selection process in his report and found that Ms Leary-Smith’s appointment was conducted in accordance with APS merit selection guidelines.
In written submissions, it was contended for Ms Labuguen that the selection process was flawed because:
The referee comments about individual candidates were obtained by the scribe who assisted the Selection Panel
The scribe did not have the necessary skills to elicit the comments of referees
The scribe was not authorised to participate in the selection panel
The selection panel failed to test the representations made by the candidates in interview and in their written applications
The candidates were not required to demonstrate their ability to reconcile accounts and run financial reports.
I also understand Ms Labuguen to contend that the scribe did not interview any of her referees but relied only on the written references provided. I am unable to find any evidence to support that contention apart from an assertion made by Ms Labuguen in an email to CMDR Milward sent on 23 October 2007.
Ms Labuguen submits that were it not for the involvement of the scribe, and had the selection committee tested the representations made by the candidates, in particular, their understanding of Defence financial management systems, it would have been apparent that Ms Leary-Smith lacked the skills and experience necessary to perform the role of finance manager.
She contends that in evaluating the reasonableness of the decision and the manner it was taken, among other things, the tribunal must have regard to “common sense, common purpose and common practice” in the recruitment activities within the Department.
Role of the scribe
Ms Labuguen asserts that the scribe was neither authorised nor qualified to undertake referee checks. She contends that the following extract from the policy, referred to by Comcare is arguably “ambiguous and possibly incorrect”:
Use of consultants
5.1.2.9Consultants may be engaged to provide specialist support to the selction panel. They can be used to:
·Headhunt applicants
·Conduct psychometric testing
·Arrange assessment centres
·Provide specialist interviewing services
·Scribe
Consultants can also be used to run selection exercises; however, this should only be considered for highly specialised positions or for large scale exercises. Where such use of a consultant is being considered, the following requirements must be met:
·The consultant must understand and abide by APS legal requirements (eg merit principles, absence of bias etc). It is the manager’s responsibility to put in place arrangements to ensure that these controls are observed, including: briefing the consultant, imposing contractual conditions, establishing monitoring and review mechanisms.
·The critical stages of the selection process must involve the input of an ongoing APS employee who is classified at least one level higher than that of the vacancy.
Ms Labuguen contends that the above passage means that consultants (but not scribes) can be used to “headhunt applicants, conduct psychometric testing …” and does not say or infer that scribes can be used to interview referees.
While not entirely clear, Ms Labuguen also appears to contend that the Committee failed as required by the Policy to have regard to the “comparability of [candidate] information” (the Policy, par. 5.1.5.5) as evidenced by the “scant reference” in the report to the comments provided by her referees (and those of the candidate ranked second), in contrast to the comments provided by Ms Leary-Smith’s referees.
The report contains a number of references t the favourable comments made by Ms Labuguen’s referees, for example, the report (at p 12)::
It was advised that Ms Labuguen, as Finance Manager, has maintained control of the unit’s finance processes. It was reported that Ms Labuguen has routinely self managed, with limited direction, the production of monthly financial reports to an excellent standard. Referees have high regard for Ms Labuguen’s ability to routinely and accurately report assets and asset capitalism.
While the report also contains references to the positive comments made by Ms Leary-Smith’s referees, I do not agree with Ms Labuguen’s contention that this was in some way attributable to a shortcoming on the part of the scribe. Nor do I agree with the proposition that the report reveals that the committee failed to have proper regard to the positive comments made by Ms Labuguen’s referees.
No evidence was adduced in support of the proposition put by Ms Labuguen, that the scribe was not authorised to conduct referee checks. Nor, apart from the general submission that the policy requires persons involved in the selection process to possess the “necessary expertise”, was she able to identify impugned rule or guideline. Nor was any evidence adduced to support the proposition that the referee check undertaken by the scribe was in some way defective.
LCDR Knoll observed (at [63]) that the task of contacting referees was normally undertaken by a member of the selection committee but in this case was done by the scribe “due to either real or perceived politics within FISSO”. It could not be inferred from that comment that the action of the scribe in contacting the referees constituted an irregularity or shortcoming, or, that LCDR Knoll held that opinion. As Comcare points out there is nothing in the Department’s policy on recruitment to indicate that the referee checks must be undertaken by a member of the selection committee or must not be conducted by the scribe.
Failure to test the claims made by candidates
Ms Labuguen contends that the selection committee erred by failing to test the claims made by candidates at interview and those made by their referees, in particular those made in relation to the first selection criteria — “understanding of Defence financial management systems including BORIS and ROMAN”. She contends that had candidates been requested to demonstrate their ability to use these systems it would have been apparent that Ms Leary-Smith lacked the necessary skills to perform the role of finance manager. Implicit in that proposition is that it is a requirement, or at least best practice, for selection committees to request candidates to demonstrate their claims made about the selection criteria. It also assumes that the committee failed to explore at interview the claims made by the candidates about their understanding of Defence’s financial management systems and that the referees were not questioned about those claims, or that a perfunctory reference check was conducted. The available evidence does not support these propositions.
As Ms Labuguen correctly points out the Knoll report reveals that shortly after Ms Leary-Smith commenced at FISSO it became apparent that she struggled with aspects of her role. Ms Labuguen submits that having regard to “cause and effect” it is apparent the decision to appoint Ms Leary-Smith was not reasonable. The reasonableness of the decision must be assessed by reference to the point in time the selection committee made its recommendation and when that recommendation was adopted by the delegate. That assessment cannot be undertaken having regard to events that post-date the decision.
I agree with LCDR Knoll’s assessment, that there is no evidence to suggest Ms Leary-Smith’s selection was conducted other than in accordance with APS merit section guidelines. With the benefit of hindsight a different and arguably better decision might have been tmade. That does not render the decisions to appoint Ms Leary-Smith, or not to appoint Ms Labuguen, unreasonable, or the manner they were undertaken unreasonable.
On the available evidence I am satisfied the decision not to appoint Ms Labuguen was reasonable and that that decision was taken in a reasonable manner.
Summary
Ms Labuguen’s adjustment disorder was contributed to, to a significant degree, by her employment with the Department. It was a result of, among other things, the decision not to promote her to the position of FISSO finance manager. That decision constitutes reasonable administrative action taken in a reasonable manner in respect of Ms Labuguen’s employment. It follows that Ms Labuguen did not suffer an injury within the meaning of the Act and the decision made by Comcare to refuse Ms Labuguen’s claim for compensation must be affirmed.
Observation
As the Knoll report reveals, Ms Labuguen’s belief that the managers of the Department were slow to act on her allegations of financial irregularities within FISSO, is not without foundation. The Knoll report indicates that the explanation for those and other irregularities not being fully identified until September 2008 is attributable to a number of factors, including the toxic workplace that existed within FISSO in 2008 and the loss of experienced personnel from FISSO and “Level 7”.
The evidence suggests that in the early part of 2008 insufficient attention was probably given to the underlying issues that triggered the complaints made by Ms Labuguen. The Quick Assessment conducted in relation to the 8 May 2008 allegations provides one such example. The genesis of the complaint that gave rise to that assessment was the alleged direction given by Ms Leary-Smith to Ms Labuguen to prepare the paperwork to enable a complex procurement to be made. The report of that assessment focussed on the claims and counter claims of abusive behaviour made by Ms Leary-Smith and Ms Labuguen, and did not appear to give any real consideration to Ms Labuguen’s claim that she had been directed to do something she believed contravened FISSO’s financial management rules. The suspicion that Ms Labuguen’s complaints about Ms Leary-Smith were motivated by malice and her disappointment with not being promoted, together with the colourful manner she chose to raise her concerns, probably acted to obscure the substance of Ms Labuguen’s complaints.
Whatever the cause it is most unfortunate that the gravamen of Ms Labuguen’s complaints were not acted on earlier, or, that it was made clear to her that they were being, or would be, the subject of proper investigation. Had that occurred it may be that Ms Labuguen would not have proceeded to raise her allegations in an increasingly desperate and inappropriate manner. These comments should not be read to suggest that I agree with Ms Labuguen’s contention that there was a conspiracy within the Department to silence her but rather that the regrettable situation that unfolded might have been avoided had proper regard been given to the substance of Ms Labuguen’s complaints in the early part of 2008.
I certify that the preceding 121 (one hundred and twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ...............[SGD].........................................................
Associate
Dated 7 July 2014
Date(s) of hearing 10, 11, 12 and 13 February 2014 Date final submissions received 3 July 2014 Advocate for the Applicant Michael Hickey Counsel for the Respondent Ben Dube Solicitors for the Respondent Sparke Helmore
0
4
4