Julie Kennedy and Comcare
[2013] AATA 696
[2013] AATA 696
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3140; 2012/1258
Re
Julie Kennedy
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms J Toohey, Senior Member
Dr M Couch, MemberDate 27 September 2013 Place Sydney The decision under review is affirmed.
...................[sgd].....................................................
Ms J Toohey, Senior Member
CATCHWORDS
CATCHWORDS – COMPENSATION – claim for psychological condition with consequent physical conditions in 2007 – claim for aggravation in 2010 – whether employment contributed to significant degree – whether reasonable administrative action taken in a reasonable manner – decision under review affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988(Cth): ss 5A(1), 5A(2), 5B(1), 5B(3), 7(7), 14
CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
REASONS FOR DECISION
Ms J Toohey, Senior Member
Dr M Couch, MemberBACKGROUND
Julie Kennedy has worked as a Customer Service Adviser in a Centrelink call centre since May 2005. She claims that, in July 2007, she suffered an adjustment disorder with consequential alopecia and a dental condition. She claims her condition was aggravated by events in April and May 2010, leading to major depressive disorder and associated physical conditions. On both occasions, she says, her conditions were the result of bullying and harassment at work.
Ms Kennedy has not worked since April 2010. On 25 June 2010, she lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) for injuries said to have occurred on 12 July 2007 and 3 May 2010. Comcare denies liability to compensate her for either injury.
Comcare does not dispute that, at the relevant times, Ms Kennedy suffered, and still suffers, from a psychological condition which doctors have variously described as an adjustment disorder, adjustment disorder with depressed mood, anxiety and panic attacks, and major depressive disorder. Nothing turns in these proceedings on the precise description of Ms Kennedy’s condition.
Comcare contends that Ms Kennedy’s employment did not contribute, to a significant degree, to her condition in 2007 or 2010 and, if the Tribunal finds that it did so contribute, then on each occasion her condition was the result of reasonable administrative action taken in a reasonable manner in respect of her employment and so excluded from compensation.
When these proceedings commenced, Comcare contended that Ms Kennedy had made a wilful and false representation in connection with her claim and it was thereby excluded by reason of s 7(7) of the Act. Comcare no longer relies on s 7(7).
Ms Kennedy’s claims concern incidents said to have occurred in 2007, late 2009 to early 2010, and April 2010. As well as evidence from Ms Kennedy, the Tribunal heard from other Centrelink employees, Ms Kennedy’s treating doctors and psychologists, and specialists who assessed her for the purposes of these proceedings.
RELEVANT LEGISLATION
By s 14 of the Act, Comcare is liable to compensate an employee for an injury suffered by the employee if the injury results in incapacity for work.
Section 5A(1) provides that 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.
Disease in the Act 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: s 5B(1). There is no dispute, and we are satisfied, that Ms Kennedy’s psychological condition is a disease within the meaning of the Act.
Significant degree means a degree that is substantially more than material: s 5B(3).
By s 5A(1), injury 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. By s 5A(2), reasonable administrative action includes but is not limited to:
(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 employees employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employees 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, classification, transfer or benefit, or to retain the benefit, in connection with his or her employment.
EVENTS IN 2007
Ms Kennedy’s evidence
Ms Kennedy’s position as a Customer Service Adviser (CSA) involved answering calls from the public about social security payments. She found the probationary period of her employment at Centrelink somewhat difficult, and there were some stressful periods at various times after that but, up until 2007, she appears to have performed well and to have been generally well-regarded.
In June 2007, Ms Kennedy’s then team leader was replaced by a new Team Leader, Sean Golden. Ms Kennedy claims Mr Golden harassed and bullied her between June and December 2007.
Ms Kennedy says Mr Golden’s behaviour towards her was intimidating and threatening; he would stand close behind her while she was on the phone, “well within the boundaries of [her] personal space” and she could always feel him “breathing down the back of [her] neck”. She asked him numerous times not to do it but he ignored her. He would make comments about what she should say during her calls with customers, interrupting her at times. He singled her out and humiliated her, pressuring and bullying her in front of other staff all the time because he was “not willing to take no for an answer”.
Ms Kennedy claims Mr Golden repeatedly followed her to the toilet and waited outside, before following her back to her desk. She says that, after she told him during a “coaching session” in August 2007 that she was seeing a specialist, he began asking her repeatedly to “sign over the right to access” to her medical information.
Around this time, Ms Kennedy says, she noticed her hair started to fall out and her stress levels heightened; she felt anxious and was smoking more, and she felt panicky, nervy and on edge “the way you feel when someone constantly sneaks up on you”.
Ms Kennedy claims that, as a result of her worsening health due to Mr Golden's bullying and harassment, her general practitioner, Dr David Barker, referred her to Mr Ross Backen, a psychologist, for specialist treatment. She “did not say much” to Dr Barker about what was happening at work because she felt “ashamed embarrassed and humiliated”. She saw Mr Backen for the first time in July 2007. She claims that, throughout the time she was seeing Mr Backen, Mr Golden’s bullying and harassment continued and did not stop until December 2007 when she was moved to another team.
As we discuss below, Dr Barker referred Ms Kennedy to Mr Backen in May 2007, before Mr Golden was her Team Leader, and it was not until her third appointment with Mr Backen and, in October 2007, that she mentioned any difficulties at work.
Ms Kennedy says Mr Golden's bullying became so bad that, on 31 October 2007, she collapsed at work after a meeting at which he again asked for access to her personal medical information. She was taken by ambulance to the hospital where she was told she had had a panic attack. Mr Golden gives a different account of this incident.
After she returned to work, Ms Kennedy complained to the Operations Manager, Helen Oberg, about Mr Golden’s behaviour. Ms Oberg arranged a meeting between the three of them in her office. The evidence about this meeting is considered below.
Ms Kennedy claims that it was “common knowledge” at work that she had been harassed by Mr Golden. Colleagues who sat close to her commented how “creepy” his behaviour was towards her, and Ms Oberg and another member of staff commented on how “inappropriate” his behaviour was and she was advised to report it. Ms Oberg denies this. Her evidence is considered below.
Ms Kennedy says she spoke with the Attendance Manager, Maria Krkovski, who said Mr Golden was a friend of hers and she could not believe how his behaviour had changed since becoming Team Leader. Ms Krkovski denies this. Her evidence is considered below.
Mr Golden’s evidence
Mr Golden started work at Centrelink in 2001 as a CSA. He was Ms Kennedy’s Team Leader from June 2007 until December 2007. He sat in a “pod” of six to eight desks, with the 20 or so members of his team in adjacent pods. A copy of the office layout, which is apparently not quite to scale but generally accurate, is in evidence.
Mr Golden gave evidence that CSAs work to a tightly-structured schedule which sets out in five-minute increments what they are expected to be doing at any particular time. Each adviser works at a computer with a headset plugged into a telephone and operated through software on the monitor. By means of “auxiliary codes”, they record their activity and the Team Leader can monitor electronically whether it matches their schedule. If it does not, the Team Leader will go to the CSA’s desk and discuss what is happening. In some cases the CSA has misread the schedule or mistakenly entered the wrong code but, if they could not explain the discrepancy, for instance if they were not available to take calls as required, the Team Leader would discuss this with them at their monthly performance review meetings.
Mr Golden’s duties involve walking around on the floor and helping CSAs as required. He is required to listen to four to eight calls by each adviser each month, depending on any concerns about their performance. The method of doing this is agreed with the CSA; some prefer to know in advance and others are happy for the Team Leader to listen to calls whenever the time suits. On occasions, he will listen in to a particular call, for example if a CSA raises their voice or is obviously having a difficult conversation, and he might intervene if they seem to need assistance.
Mr Golden gave evidence that CSAs have differing preferences as to whether they prefer him to sit next to them to listen to calls, or to stand nearby and plug his headset into the phone on their desk, and he is generally guided by their preference. He can also listen to calls by picking up the handset on the CSA’s desk but he generally uses a headset, rather than the handset, so his hands are free to take notes. He has to be close to the monitor in order to see the call as the CSA enters it on the screen and so he can monitor whether the CSA is advising correctly about payments. He estimated that the headset cord is one- to one-and-a-half metres long and, if he stands and listens in by means of his headset, he would be between one and two meters from the CSA.
In cross-examination, Mr Golden was asked whether he ever “hovered” around desks as Ms Kennedy claimed. He agreed that he had to be around the desks in order to perform his duties, but to say that he “hovered” sounded “ominous”. He gave evidence that the practices he described were consistent with Centrelink’s Real Time Monitoring policy which was available to all staff on the intranet.
Mr Golden gave evidence that he could not clearly recall monitoring Ms Kennedy's calls but he was confident that he sat and listened to some calls with her on more than one occasion. As he recalled, her performance was not particularly strong and, while it was not “dreadful”, she was not consistently meeting performance expectations. In particular, she was frequently absent, and her time management skills were not strong, and he talked to her in their monthly sessions about keeping to schedule.
Mr Golden denied ever raising his voice to Ms Kennedy or any member of staff, or criticising her performance or behaviour in an embarrassing or belittling way. He agreed there would have been times when he would have discussed her performance, whether at their monthly meeting or in passing, but he denied ever doing so publicly or in the presence of other staff. He said he always tried to make any discussion private so that it could not be heard by others.
Mr Golden denied ever following Ms Kennedy to the toilet or standing waiting for her return. He denied talking to her about being late back from the toilet and said he would never do so because it would be inappropriate. In any event, he said, he would not usually know, if a CSA was absent on a “personal support break”, what they were doing during the break. He gave evidence that he did nothing out of the ordinary in relation to Ms Kennedy and he treated her no differently from how he would treat anyone else in the same circumstances.
Mr Golden says that, when Ms Kennedy collapsed on 31 October 2007, she had been in a training session in a room with several other members of staff; he was not present. She left the training session and came to tell him she was not feeling well. As a qualified First Aid officer, he provided first aid and assistance but as her symptoms became worse, he contacted an ambulance and she was taken to hospital.
Mr Golden gave evidence that he has never had a complaint made against him by any Centrelink employee in relation to conduct of the sort described by Ms Kennedy and he has never been spoken to, disciplined, counselled or otherwise sanctioned by Centrelink in relation to conduct of the sort.
Ms Oberg’s evidence
Ms Oberg is the Operations Manager at the Centrelink office where Ms Kennedy worked. She gave evidence that they have had many informal conversations and Ms Kennedy has given her every reason to believe she found her approachable and effective in dealing with any of her concerns.
Ms Oberg gave evidence that, in September 2007, Ms Kennedy asked to see her privately. She said she wanted to explain her need for flexibility in the workplace on account of her sensitive personal circumstances. They included disputes over custody of her son, her violent domestic relationship which included taking out an apprehended violence order, and that she was responsible for caring for her grandmother. She explained that her parents as well as her sisters had had breakdowns, leaving her to care for her grandmother.
According to Ms Oberg, Ms Kennedy made no mention of problems in the workplace at this meeting, and her only reference to work was her need for flexible arrangements.
On 16 October 2007, Ms Kennedy asked to meet with Ms Oberg again. When they met the next day, Ms Kennedy said she felt Mr Golden was belittling her and giving her public feedback, which she did not appreciate. She felt his behaviour was unintentional and he did not mean to alienate her but he would often tell her that she was entering the wrong code and said he would be monitoring this closely. She felt their coaching sessions went “around in circles” and he did not listen to her fully; she wanted the matter resolved informally.
Ms Oberg gave evidence that, on 26 October 2007, she met with Mr Golden. He explained that he had been applying the Real Time Management policy; he would like to continue as Ms Kennedy's team leader and would take her concerns on board. Ms Oberg arranged to meet with the two of them.
Meeting with Ms Oberg and Mr Golden
Ms Oberg gave evidence that, when she met with Mr Golden and Ms Kennedy a short time later, they discussed the Real Time Management policy and how Mr Golden was required to perform his duties. She says that, in her mind, their conversation was the end of the matter; everyone understood each other and could “move forward”. At no time during the meeting, or at any other time, did Ms Kennedy mention anything about Mr Golden following her to the toilet. Ms Oberg says she has never heard such complaint made about him or anyone in the workplace.
Ms Oberg gave evidence that she “certainly did not” form the view that Mr Golden was harassing Ms Kennedy. She formed no adverse view about this and did not communicate any adverse view about him to Ms Kennedy. In her view, he was doing exactly what was required of a Team Leader. She said she considers him to be a careful and sensitive person, and very respectful.
Mr Golden’s evidence about this meeting is consistent with Ms Oberg’s. He recalled, although not in great detail, Ms Oberg telling him that Ms Kennedy claimed he had been harassing her and she felt he was openly critical of her performance. He was “very surprised” at the complaint because he regards himself as a “professional and compassionate” Team Leader and he did not think he treated Ms Kennedy in any way out of the ordinary. There was no suggestion at the meeting or any other time that he followed Ms Kennedy to the toilet and the first he knew of this allegation was in the course of this hearing.
Around this time, Ms Oberg was restructuring some of her teams. She gave evidence that, knowing Ms Kennedy liked more complex work and liked helping people, she thought she might like to work in customer relations; Ms Kennedy seemed pleased, and enthusiastic about the move (which took place in December 2007).
Ms Kennedy gave evidence that Ms Oberg told her she was transferring her to another team because of Mr Golden’s inappropriate behaviour towards her. When pressed, she agreed Ms Oberg did not use those words but that was “what she inferred”. Ms Oberg denies using those words and denies any connection between the move and Mr Golden’s behaviour. Mr Golden gave evidence that when Ms Oberg told him Ms Kennedy was moving she made no reference to his alleged inappropriate behaviour.
Ms Krkovski’s evidence
Maria Krkovski was a CSA in the same team as Ms Kennedy for approximately six months during the time Mr Golden was Team Leader. She sat about two metres from Ms Kennedy. She says that, during that time, she and Ms Kennedy had a good relationship and worked well together. Ms Krkovski has since been appointed the Attendance Manager.
Ms Krkovski gave evidence that the duties of Team Leader include managing the daily work of the team, giving individual coaching and listening to each CSA’s calls for quality and coaching purposes. Her evidence as to how and when this occurs was consistent with Mr Golden’s. She agreed that it was the role of the Team Leader to walk around and supervise the staff.
Asked whether she ever observed any improper, or out of the ordinary, conduct by Mr Golden toward Ms Kennedy, Ms Krkovski said she had not. She recalled that Ms Kennedy had mentioned she did not like how Mr Golden would “hover” around her, but she gave it little thought because that was what he was required to do. She said she had observed him “hover” because he had to do that to everybody, and would sometimes have to wait nearby while the staff member finished a call.
Ms Krkovski denied that Ms Kennedy ever told her that Mr Golden had followed her to the toilet. She believed she would have recorded it had she done so because it would be unusual and she would have been concerned by it.
Consideration
Ms Kennedy appeared to us to give her evidence as honestly as she could but we are not satisfied that her account is reliable. It may be that she has come genuinely to believe her version of events but it is at odds in almost every respect with the consistent evidence of Mr Golden, Ms Oberg and Ms Krkovski each of whom gave evidence in a thoughtful, measured way. As will be seen, it is also at odds with contemporaneous records of events in 2010. Wherever her evidence is at odds with theirs, we prefer their evidence.
We are satisfied that Mr Golden’s conduct in walking around and standing close to the CSAs was entirely consistent with his duties as Team Leader, and even Ms Kennedy does not seem to dispute this. We are not satisfied that he criticised or belittled her in front of others. We do not accept that he followed her to the toilet as she claims. We do not accept that she complained to anyone at work that he had done so. Nor do we accept that Ms Oberg and Ms Krkovski commented adversely on his behaviour.
Although Ms Kennedy claims that a number of other staff observed, and commented on, Mr Golden’s behaviour, including when he followed her to the toilet, no witness has been called to support her claims. As we have said, we do not accept that she complained to Ms Oberg or anyone else that he followed her to the toilet.
We accept that Ms Kennedy was unhappy enough with Mr Golden’s monitoring of her work to complain to Ms Oberg. However, we accept Ms Oberg's evidence that the meeting in October 2007 appeared to put Ms Kennedy's concerns to rest. We are satisfied that Ms Oberg moved Ms Kennedy to a new team in December 2007 as part of a restructure and because it offered her a new challenge. We do not accept Ms Kennedy's evidence that Ms Oberg told her, or implied, that it was on account of Mr Golden's behaviour towards her.
DID MS KENNEDY’S EMPLOYMENT IN 2007 CONTRIBUTE, TO A SIGNIFICANT DEGREE, TO HER CONDITION?
The evidence is that, in the early part of 2007, Ms Kennedy was experiencing a number of stressful personal difficulties. In February 2007, she was assaulted and pushed down stairs at home by her then partner who had a drinking problem. Her son was in the home at that time and she subsequently obtained an apprehended violence order against her partner. Her grandmother was unwell and, although Ms Kennedy gave evidence that she was not unduly distressed by this, Dr Barker’s notes show it was one of a number of stressors affecting her. Her parents were also unwell, her father having been diagnosed with bowel cancer, and it fell largely to her to care for her mother and grandmother.
Evidence of Dr Barker and Mr Backen
Dr David Barker, Ms Kennedy’s general practitioner since October 2002, gave evidence.
When he saw her on 13 September 2006, Dr Barker noted “Stress+++”, that her mother was ill in hospital, her father had bowel cancer, her son was having night terrors and she “was being pulled in all directions”. He also noted that she was finding her job stressful, but did not record why.
Dr Barker saw Ms Kennedy on 19 February 2007, following the assault by her partner. He saw her again on 12 April 2007 for flu-like symptoms. On 1 May 2007 she saw another doctor at the practice who noted “lots of family stresses”.
When he saw Ms Kennedy on 28 May 2007, Dr Barker noted “Problem: new diagnosis: reactive depression”. He prepared a GP Mental Health Plan (a requirement for a Medicare referral) and referred her to Mr Ross Backen, a clinical psychologist. The Plan identified her needs as “help with coping emotionally” and “depression and anxiety”.
Mr Backen saw Ms Kennedy for the first time on 12 July 2007. He gave evidence that Dr Barker's referral letter cited “family, social pressures, abusive partner, recently separated”. He saw Ms Kennedy for seven sessions in 2007, and again in 2010 and 2011.
On 6 August 2007, Mr Backen reported to Dr Barker that he had seen Ms Kennedy twice and had completed his assessment. He reported “indications of strong patterns over a long term period of anxiety with co-morbidity of depression… [and] severe levels of stress as well.” Ms Kennedy told him she had a lot of demands on her in caring for her mother and her grandmother because no one else in the family would take on the responsibility, and she also had a full-time position with Centrelink. She reported that she had lost custody of her son and was doing her best to maintain a relationship with him.
It was not until their third session, in October, that Ms Kennedy spoke to Mr Backen about pressures at work. Mr Backen recorded that Mr Golden began to bully her in front of other staff, became quite antagonistic and used her ill-health against her He gave evidence that these pressures became more apparent in their latest sessions and so became a “much greater focus progressively”. He subsequently reported to Ms Kennedy’s solicitors that their sessions ended in December 2007 when the pressure reduced once Mr Golden was no longer her Team Leader. He noted that there were a number of stressors previously in her employment but she was able to cope with them. However, her levels of anxiety began to increase once Mr Golden was her team leader. .
Asked why she did not tell Mr Backen sooner about her problems at work, Ms Kennedy said she felt “embarrassed and humiliated”; she is not someone to open up and trust someone easily; she only felt comfortable telling him about things she felt she could control, which were the things in her personal life and were not the matters that were deeply troubling her. Mr Backen gave evidence that it is common for patients seeking counselling not to address the more psychologically significant matters until sometime into the process.
Dr Young’s evidence
Dr Robin Young, psychiatric medical officer at the same practice as Mr Backen, first saw Ms Kennedy in July 2010 at his request. She diagnosed Ms Kennedy as suffering severe major depressive disorder. She encouraged Ms Kennedy to document her difficulties at work, which she did in a lengthy report.
Dr Young gave evidence that she had no reason to doubt Ms Kennedy’s account. In her view, the factors that caused and aggravated her psychological condition were those related to her management in the workplace as Ms Kennedy had described in her lengthy written account.
Dr Young and Mr Backen referred to the breakdown of Ms Kennedy's marriage and the subsequent grant of custody of her son to her husband. Both noted that she now enjoys good relationships with her former husband and her son. Neither thought that events outside the work environment contributed significantly to her psychological condition.
Dr Skinner’s evidence
Dr Yvonne Skinner, psychiatrist, saw Ms Kennedy for assessment in February 2012. Ms Kennedy reported to her that Mr Golden picked on her because she had taken a lot of leave. She explained to Dr Skinner that the reasons for her high rate of leave were that her grandmother was ill with cancer and was in a nursing home and she needed to spend time with her to give her own mother a break. She also said her son had been unwell and her father had been diagnosed with bowel cancer. She told Dr Skinner that things improved after she was transferred to a different team following the meeting with Ms Oberg and Mr Golden.
Dr Skinner was provided with a number of medical reports including from Dr Anne-Marie Rees, consultant psychiatrist, who saw Ms Kennedy in June 2010. Dr Rees reported she had spoken to Dr Barker who was aware of “some issues relating to her past psychiatric history” including having anxiety and depression in 2003 to 2004 for which she was prescribed Cipramil, an antidepressant. (Ms Kennedy strenuously denies ever being prescribed, or taking, anti-depressant medication. We are satisfied that Dr Barker’s clinical notes, which show repeat prescriptions, are correct and that Ms Kennedy is mistaken about this). Dr Skinner also noted that Dr Barker told Dr Rees that Ms Kennedy had had anxiety problems for many years related to family stress and that she had been caring for her grandmother who died early that year.
In a report dated 20 February 2012, Dr Skinner concluded that Ms Kennedy had suffered anxiety disorder and obsessive-compulsive disorder while working at Centrelink and that:
“the factors contributing to her condition were her perception that the supervisors were intrusive and interventionist in their management styles and she perceive this as ‘bullying and harassment’”.
Dr Skinner revised her opinion in a supplementary report in March 2012. Asked by the respondent’s solicitors whether Ms Kennedy was experiencing “any personal stressors” in 2007, Dr Skinner said she was experiencing the following:
·she had been helping the family care for her grandmother who had been diagnosed with cancer and was put in a nursing home; she had a close relationship with her grandmother and was helping her mother care for her;
·her son, Bailey, was unwell; she had lost custody of him and was doing her best to maintain a relationship with him;
·her father had been diagnosed with bowel cancer;
·she had issues with her ex-husband and her son around the same time;
·she had been assaulted by her partner in February 2007 when he brought friends home and played loud music, leading to an argument during which he violently assaulted Ms Kennedy;
·she separated from her partner in 2007; and
·she had multiple family and social pressures as she was a single parent and carer for her mother, grandmother and son.
Dr Skinner reported that each of the factors listed would be high on the list of psychological stressors and she thought they contributed significantly to Ms Kennedy’s psychological condition at the time.
Dr Dinnen’s evidence
Dr Anthony Dinnen, consultant psychiatrist, saw Ms Kennedy for assessment in March 2012. He reported that she presented with a history of significant psychiatric illness with marked features of anxiety and depression. He noted that, from the documents provided to him, she had apparently given a consistent account of workplace bullying with the exception of Mr Backen’s first report (by which we understand him to mean that it was not mentioned in that report).
Dr Dinnen diagnosed Ms Kennedy as suffering chronic adjustment disorder with anxiety and depressed mood which it appeared had arisen as a result of bullying and harassment at work. He thought if there was any evidence of pre-existing psychiatric disorder, then those workplace factors had to be regarded as aggravating that condition which was apparently in remission when she started work at Centrelink.
Dr Dinnen noted that Dr Skinner had apparently changed her view as to the contribution of the workplace to Ms Kennedy’s condition, based on further information provided to her about events in 2007 but those other matters did not alter his own view. While he thought they were not insignificant, he would not give them the weight that Dr Skinner did.
Dr Dinnen thought Ms Kennedy seemed to have been coping with them, but things at work brought her to a point where she could no longer cope, and he noted that Mr Backen thought the workplace a significant contributor. Dr Dinnen gave evidence that it is common for people with Adjustment Disorder to avoid discussing distressing events. Mr Backen agreed “wholeheartedly” with Dr Dinnen's assessment.
Consideration
A difficulty with concluding, based on the medical evidence, that Ms Kennedy’s employment contributed to a significant degree to her psychological condition in 2007 is that the doctors and Mr Backen relied on Ms Kennedy’s account of what was happening at work. For the reasons we have given above, we are not satisfied that her account is reliable.
What is clear from the medical evidence is that, when Ms Kennedy saw Dr Barker in 2007 for stress-related symptoms, she was experiencing “severe” stress and anxiety about matters unrelated to her employment. Her symptoms were of sufficient concern for Dr Barker to refer her to Mr Backen by way of a GP Mental Health Plan. There is nothing to suggest that her employment played any part in her psychological condition at that point. Given that Mr Golden was not her Team Leader until June 2007, Ms Kennedy’s evidence that Dr Barker referred her to Mr Backen because of her difficulties with him cannot be correct.
The fact that Ms Kennedy did not tell Dr Barker in May 2007 about any difficulties with Mr Golden is explained by the fact he was not her Team Leader until June 2007. However, he had been her Team Leader for approximately two months when she saw Mr Backen and, by her evidence, Mr Golden had been bullying and harassing her since he became Team Leader.
We accept there may be any number of reasons why a person would not wish to disclose distressing things to someone they do not know well. However, we are not satisfied that is why Ms Kennedy did not tell Mr Backen until their third meeting about the problems she was encountering at work with Mr Golden. There was nothing especially private about her complaint about him. By her own evidence, she had complained to others at work, and complained to Ms Oberg around that time. We do not accept her claim that she felt she could only disclose those events over which she had some control. The only plausible explanation is that it was the other events in her life that were causing her stress and anxiety, and Mr Golden’s behaviour was not of particular concern to her at the time.
We accept that Ms Kennedy was unhappy enough with Mr Golden’s monitoring of her work to complain to Ms Oberg in October 2007. However, we are satisfied that meeting was the end of any problems she perceived with his conduct at the time.
On balance, taking all of these matters into consideration, we are not satisfied that any difficulties Ms Kennedy had with Mr Golden in 2007 contributed to a significant degree to her psychological condition at the time.
WAS MS KENNEDY’S CONDITION IN 2007 THE RESULT OF REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF HER EMPLOYMENT?
Even if we were satisfied that Mr Golden did behave as Ms Kennedy alleges, and even if that behaviour did contribute to a significant degree to her psychological condition, we would find her claim excluded on the ground that the events she complains of were reasonable administrative action taken in a reasonable manner in respect of her employment.
The proper construction of the exclusion was considered by the Full Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21. The Court noted that the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, by which the current version of s 5A(1) was enacted referred to its objective (among others) to:
“ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers compensation”.
That said, the exclusion was not so broad as to include any action that might be described as falling within the ordinary meaning of “administrative action” taken by an employer. It was directed to action with “respect to the employee as employee and his or her employment relationship with the employer” at [30]. Gray J said at [31]:
The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment.
At [33], Gray J said:
In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. … As the tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.
For Ms Kennedy it is submitted that Mr Golden’s conduct did not constitute administrative action for the purposes of s 5A(1) because it simply concerned the duties of her employment and how the work of the call centre was done.
For Comcare it is submitted that Mr Golden's conduct was squarely within the meaning of s 5A(1) because it was concerned with the mutual obligation between Ms Kennedy and her employer, in particular, that she make herself available to take calls when required. We agree.
Mr Golden’s responsibilities included coaching, training and supervising staff and ensuring they worked the requisite number of hours in a given day. He had to discuss unplanned absences where they caused difficulties in meeting customers’ needs. Ms Kennedy had agreed in evidence that these were matters that it was necessary for management generally to address.
To the extent that Mr Golden monitored Ms Kennedy's work and spoke to her at about her attendance and being available to take calls when scheduled, his conduct was more than simply operational. It was to do with the administration of her relationship to her employer and the way in which she performed her work. We are satisfied it was administrative action for the purposes of s 5A(1).
We are satisfied that the relevant administrative action that Mr Golden took in respect of Ms Kennedy's employment was entirely reasonable. It was what he was required to do in his role as Team Leader. We accept his evidence and that of Ms Oberg and Ms Krkovski that what he was doing was entirely consistent with the Real Time Management policy. There is nothing to suggest the policy was itself unreasonable.
We are a further satisfied that the manner in which Mr Golden carried out his duties in respect of Ms Kennedy was reasonable.
EVENTS IN LATE 2009 – EARLY 2010
Ms Kennedy claims that, from mid to late 2009, her then Team Leader, Belinda Oostendorp, started criticising her work in front of others, including how many calls she was taking and how she was entering data on her computer. She says when it became known that their call centre had the highest level of unplanned leave, Ms Oostendorp targeted her for her high level of unplanned leave and made her move her desk closer to Ms Oostendorp so she could be more closely supervised.
Ms Kennedy claims she was not given the same support as others with her unplanned leave; she was not given a “work-life balance plan”, as the procedure for unplanned leave required. She agrees there was an “Absence Support Plan” but says that was not the same thing and she should have been given a “work-life balance plan”.
Ms Oostendorp gave evidence that there were some problems with Ms Kennedy’s performance around this time, which she had to speak to her about “on numerous occasions”. Ms Kennedy did not always work to the schedule and she had a history of “IT problems” which made it difficult to manage her performance, and her unplanned leave was high. She formed the view that the IT problems were often the result of Ms Kennedy shutting down in a particular way that made it difficult to track what she was (not) doing. She denies bullying Ms Kennedy.
Ms Kennedy has not claimed these events of themselves led to an injury but she says they form the background to events in April 2010.
APRIL 2010: VISIT TO MS KENNEDY’S HOME
On 7 April 2010, Ms Oostendorp and Trent Newton, the assistant operations manager who was acting in Ms Oberg’s position while she was on leave, visited Ms Kennedy at home while she was on sick leave. What happened leading up to, and during, this meeting is in dispute.
Ms Kennedy’s evidence
Ms Kennedy claims that, while she was on sick leave in April 2010, Ms Krkovski, who was then the Attendance Manager, rang her to say she would come to her house to collect her medical certificates as they were building up and needed filing. Ms Kennedy says she agreed as she realised her employer needed them and she was not well enough to take them in herself.
Ms Kennedy says she had no idea Mr Newton or Ms Oostendorp would be coming to her house and was shocked when she opened the door to them the day after her conversation with Ms Krkovski. She denies anyone telling her they would be coming and says she felt very uncomfortable. As will be seen, Ms Krkovski, Mr Newton and Ms Oostendorp give a quite different account and their version of events is supported by contemporaneous records.
Ms Kennedy claims she did not know why Mr Newton and Ms Oostendorp came to see her and she hoped they would just take her medical certificates and leave. She went to get the certificates but they both sat down and Mr Newton kept insisting she sign consent to release medical information so they could contact her doctors. She felt very pressured and panicky. She says the visit was “the straw that broke the camel’s back”.
Under cross-examination, Ms Kennedy agreed that asking her to consent to access to her medical records would be reasonable in order to assess if there were any medical barriers to her attendance at work.
Ms Krkovski’s evidence
Ms Krkovski gave evidence that, in her role as Attendance Manager, she had to “minimise unplanned leave and support staff with irregular attendance”. She was required to look after Ms Kennedy's leave. They were on good terms. Ms Krkovski gave her evidence clearly and it was consistent with contemporaneous records. We have no reason to doubt her evidence.
Ms Krkovski gave evidence that Ms Kennedy's attendance had been irregular for some time and Ms Kennedy had spoken to her about her health concerns and had mentioned her financial concerns. She says Ms Kennedy rang her on 6 April 2010 to say she would not be in because she was ill. Because she had used the five days personal leave for which she could be paid without supporting medical evidence, Ms Krkovski told her she would need to provide medical evidence in order to be paid. Ms Kennedy said she had no means of bringing the medical certificate in and became distressed at the financial implications if her leave was not paid.
Ms Krkovski gave evidence that she asked if there was any way somebody could drop the medical certificates off at work for her but Ms Kennedy said there was no-one and she did not have a fax machine. Ms Krkovski suggested she could bring the certificates in when she was back at work and be back-paid then, but Ms Kennedy said she had bills to pay and she asked if there were any other options.
Contemporaneous notes made by Ms Krkovski show that she spoke to Mr Newton who offered to go to Ms Kennedy's house with Ms Oostendorp. Ms Krkovski gave evidence, supported by the notes, that she rang Ms Kennedy who was happy at the suggestion; Ms Krkovski asked her what time and date would be suitable and they arranged that Mr Newton and Ms Oostendorp would come to her house at 12 pm the following day. Ms Krkovski gave evidence that Ms Kennedy did not say anything to the suggestion that Mr Newton and Ms Oostendorp attend her house and she was very thankful that she could be paid.
Ms Krkovski gave evidence that, at that, at the same time, she discussed with Ms Kennedy the fact that she had been absent for some time and that she wanted to determine Ms Kennedy’s treatment and rehabilitation needs with a view to a safe return to work plan. She discussed with Ms Kennedy obtaining her authority to release medical information, and that Mr Newton and Ms Oostendorp would discuss this with her when they visited. Ms Krkovski says Ms Kennedy welcomed the suggestion.
Mr Newton’s evidence
Mr Newton gave evidence that Ms Krkovski approached him on 6 April 2010 about the fact Ms Kennedy had exhausted the sick leave for which she could be paid without producing a medical certificate. He talked to Ms Oostendorp about how they might help. Ms Krkovski told him Ms Kennedy would be grateful for any help they could give, and he understood from Ms Krkovski that Ms Kennedy welcomed the idea of a rehabilitation service provider.
Mr Newton gave evidence that he had visited staff at home in the past for various reasons; there were not particular protocols for such visits and it would depend on things but, crucially, whether the staff member was agreeable. Ms Krkovski gave similar evidence. He asked Ms Krkovski to check with Ms Kennedy and was advised they were “more than welcome” to visit.
Mr Newton gave evidence that Ms Kennedy looked tired when she answered the door but she was cordial and happy, and invited him and Ms Oostendorp in. After talking generally for several minutes, she gave them the medical certificates. She was initially positive when they started talking about a rehabilitation service provider but became upset when they talked about her giving consent for the provider to contact her doctors. Mr Newton told her it was desirable for the provider to be able to speak to an employee’s doctors but it was not essential and the rehabilitation could proceed without that information. Ms Kennedy said her doctor had advised against giving her consent and she asked them to leave the consent forms with her so she could talk about it with her doctor. They talked for another five or ten minutes, including about Ms Kennedy’s son, and then he and Ms Oostendorp left.
Mr Newton denies acting in the manner alleged by Ms Kennedy during the visit. He gave evidence he was concerned about her, she had asked for help, her pay was affected without her medical certificates, and he wanted to help. He asked Ms Krkovski to check with Mr Kennedy that she was agreeable to the visit, which she was, and he would not have gone to her house otherwise.
The day after the visit, Ms Oostendorp says Ms Kennedy called her to talk about her financial difficulties and said she was thinking of declaring herself bankrupt. She spoke to Mr Newton who arranged for them to speak to Ms Kennedy by phone together. During that call, he encouraged her to see a financial counsellor in the next door office.
On 23 April 2010, there was an exchange of text messages between Ms Kennedy and Mr Newton. Ms Kennedy wrote:
Hi Trent, just wanted to get in touch with you as well as courtesy but spoke to Jo H this morning. The sleepless nights with this damn cough has taken its toll and drinking Red Bull has dragged me through the week thus far but am exhausted. Can you have Billie G call me as seeing doc A today? I know you are very busy at the moment and I haven’t had a chance to catch up with you but wanted to take the opportunity to thank you for giving me the chance to work this week although I haven’t been able to do my job, which I miss, and for the help of Billy and Greg too. I am very very grateful :) Luckily Jo told me his morning there is a public holiday Monday or I would have turned up. Yep, clearly I am sick. Feel free to call me if you like or need to but if you can’t get me send an SMS and I will get back to you if I’m at doc’s or sleeping ok! Thanks again Trent.
Mr Newton replied:
Hi Julie, thanks for that. Sorry to hear that you are still not well. Let me know how you go with the Dr. Please take care Julie. Trent
Ms Kennedy replied:
Thanks Trent :) yet I am well and truely over this 2 say the least but u have been gr8 :) & I am very lucky 2 have ur support. …. Hope u and ur family have a lovely weekend :) & thank you again so much!
Ms Oostendorp’s evidence
Ms Oostendorp’s evidence is consistent with that of Mr Newton. She said that, on 6 April 2010, she approached Ms Krkovski to discuss her concerns about Ms Kennedy's absence. Ms Krkovski said she would discuss the matter with Mr Newton. Later that day Ms Krkovski told her that she had consulted Mr Newton and contacted Ms Kennedy who had agreed to Ms Oostendorp and Mr Newton visiting her home at 12pm the following day.
Ms Oostendorp’s recollection of the visit to Ms Kennedy's home accorded with Mr Newton’s. She said Ms Kennedy appeared at the door looking tired and teary but smiled and welcomed them in. Ms Kennedy spoke about her health and appeared relaxed throughout the discussion. However, she became “quite upset and started to cry” when Mr Newton asked her to sign consent to release medical information. She said she was undergoing tests for cancer and she did not want Centrelink to find out she had cancer before she did.
That night, Ms Kennedy rang Ms Oostendorp. She thanked her for the support she and Mr Newton had given her that day. She was upset and there were a number of factors contributing to her stress including that she was filing for bankruptcy. Ms Oostendorp asked if she could disclose that information to Mr Newton so they could explore avenues with a financial counsellor. Ms Kennedy agreed and Ms Oostendorp said Mr Newton would call her the following day.
On 8 April 2010 Ms Oostendorp was present when Mr Newton telephoned Ms Kennedy. He told her Centrelink would continue to support her but she would have to be honest with those supporting her so they could provide the most appropriate support. Ms Kennedy apologised to Mr Newton for not being honest (about all of the circumstances). They stressed the importance of professional financial counselling. Ms Kennedy said her “personal and work life were ‘out of control’ and she had never been in that sort of predicament before”.
The Wellbeing and Attendance Log
The accounts given by Mr Newton, Ms Oostendorp and Ms Krkovski are consistent with the contemporaneous records in Ms Kennedy's Well-being and Attendance Log, the purpose of which is described on the log as “to ensure that issues and actions relevant to the management of well-being and attendance are known by whomever is taking the action”. A number of entries are relevant.
On 1 April 2010, Ms Krkovski noted that Ms Kennedy had contacted her that morning and advised that she was “still unwell with medical condition”; she would be absent until 6 April; she would see her doctor and would provide a medical certificate on her return to work.
On 6 April 2010, Ms Krkovski recorded that Ms Kennedy contacted her that morning and was sobbing; she said she was not feeling well at all and had to go to hospital over the weekend; she did not know what happened as she had felt she was on the road to recovery and expected to be back at work by now; the doctors did not know what was wrong with her but her doctor had advised there was a really bad virus around and some people had been off work for six to eight weeks; Ms Krkovski asked if Ms Kennedy had anyone to help care for her; she told Ms Kennedy she had spoken to her parents and they sounded very concerned about her health and well-being. She noted “personal leave coded for today – I advised Julie that this is unpaid due to no leave credits”.
The log records that, on 6 April 2010, Ms Kennedy sent a text message to Ms Krkovski advising she had just seen the doctor who had changed her medication and was sending her for further tests; he advised she needed complete rest. Ms Kennedy wrote:
At the moment I am not going so well and struggling to process how I am going to cope emotionally, financially and most importantly how and when I am going to get better on what is actually wrong with me!! A bit in shock! I have put in for rec and purchased leave in June/July/August and got this approved is there any way I can access any of that I have a lot to re-evaluate till I can get thru this – any helpful suggestions would be greatly appreciated.
Ms Krkovski recorded that she called Ms Kennedy the same day. She noted her speech was slurred and Ms Kennedy said she felt exhausted. She recorded that she discussed “further support options” including having a rehabilitation case manager assigned to her. She asked if this would be all right and Ms Kennedy said any help at that point would be welcome. Ms Krkovski explained the process and that someone would be in touch with her. She also recorded:
I expressed concern to Julie regarding some of her leave being underpaid and how she was coping with the financial pressures of this. I advised Julie if we could obtain her medical certificates and code them on Infolink perhaps some of the leave would then be paid as she had nil days without [personal leave] left to access. I asked Julie if there was any way she could get these to us and she said no. I advised Julie I had spoken with Trent and [Ms Oostendorp] and that they had kindly offered to drive to her home and pick them up. Julie said she was happy for this to occur. Arranged time with Julie – 12 noon tomorrow. I advised Julie that in order to have [the rehabilitation workers] liaise with her Dr and have his assistance in drawing up a [graduated return to work] plan we would need her authority to speak to her doctor, I advised Julie that Trent and [Ms Oostendorp] would bring her a consent form to her consideration. Julie discussed granting purchased leave in lieu of personal leave – I advise Julie that this was against policy and we would not be able to grant this request – however, perhaps it was something she could look into for the future for rec leave purposes and take some time off to rest and revitalise.
Ms Krkovski recorded that Ms Kennedy “advised that she was very grateful for all the support”.
On 7 April 2010, Mr Newton recorded in the Log that he and Ms Oostendorp had visited Ms Kennedy's home “to check on her well-being and offer support”. Ms Kennedy explained that she was having trouble breathing and hearing due to a viral condition which required penicillin. She gave them her medical certificates. They discussed a graduated return to work programme and she “seemed positive” about having a rehabilitation provider involved until the discussion turned to her doctor liaising with the provider. At this point Ms Kennedy became emotional, she started to cry and did not speak. When he asked what was wrong, she said she was being tested for cancer and she did not want Centrelink finding out what was wrong with her before she did, especially if the news was going to be bad as she thought it would be. She said she would discuss the form with her doctor. She thanked them for their support. The plan was that he would contact her on Friday at 3:30pm after she had the results. He noted that the meeting lasted 15 to 20 minutes.
The Log records that, on 8 April 2010, a telephone conference was held with Ms Kennedy, Mr Newton and Ms Oostendorp during which Ms Kennedy said she was considering bankruptcy “on compassionate grounds”. Discussion focused on Ms Kennedy seeking professional financial counselling and support. Ms Kennedy acknowledged that her work life, home and financial situation was out of control. Once again it was reinforced that she would be supported in any appropriate way”.
On 9 April 2010, Mr Newton received a text message from Ms Kennedy in which she advised she was about to undergo further tests; she “just wanted 2 touch base”; Dr Barker had said he was unable to give her a return to work date but she would be off until at least the following week. The message concluded “Thanks so much I really appreciate the help from you and Bel :)”.
The Log records that Ms Kennedy attended work on 19 April 2010. Ms Krkovski noted “Julie gave me a hug and thanked me for all the support and ‘being there’ for her”. Entries over the next few days record discussions about Ms Kennedy's rehabilitation plan.
On 23 April 2010, there was the exchange of text messages between Ms Kennedy and Mr Newton which is described above.
Consideration
The overwhelming weight of the evidence favours the account of the visit given by Ms Krkovski, Mr Newton and Ms Oostendorp. Their evidence is supported by the contemporaneous records. We have no reason to doubt that the Well-being and Attendance Log accurately records conversations with, and messages from, Ms Kennedy around the time of the visit.
We are satisfied that Ms Krkovski told Ms Kennedy the day before the visit that Mr Newton and Ms Oostendorp would visit her at home to collect her medical certificates and that Ms Kennedy was agreeable. Nothing in the evidence supports the conclusion that she felt pressured to agree to their visit.
There is no argument that Ms Kennedy became upset when asked for consent to speak to her doctor. However, we are satisfied that Mr Newton’s and Ms Oostendorp’s only purpose in asking for her consent was to assist in her rehabilitation. We accept that, when she declined, that was the end of the matter. We accept that Ms Krkovski had discussed this with her before the visit and Ms Kennedy had welcomed the suggestion.
The text messages that Ms Kennedy sent to Mr Newton following this visit are completely at odds with what she says about how the visit came about and what happened during it. There is no reason to think they reflect anything other than how Ms Kennedy regarded the visit and how she felt at the time towards Mr Newton and Ms Oostendorp.
DID EVENTS IN APRIL 2010 CONTRIBUTE TO A SIGNIFICANT DEGREE TO MS KENNEDY’S PSYCHOLOGICAL CONDITION?
There was general agreement between the medical witnesses that the visit to Ms Kennedy's home in April 2010 and a subsequent meeting with Mr Newton which is dealt with below, contributed to a significant degree to an aggravation of her psychological condition in 2010.
Dr Dinnen gave evidence that Ms Kennedy did not tell him about the visit to her home or her subsequent meeting with Mr Newton but he did not regard that as itself significant. Dr Skinner thought both events aggravated her underlying anxiety, significantly contributing to her condition at that time.
The respondent does not take issue with the argument that the visit and the subsequent meeting with Mr Newton contributed to a significant degree to Ms Kennedy's psychological condition in 2010. We are satisfied that they did.
WAS THE VISIT REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF MS KENNEDY’S EMPLOYMENT?
For Ms Kennedy it is conceded that the visit is capable of being construed as administrative action because it concerned her employment rights and status, in particular her entitlement to paid leave and how she might be rehabilitated. We agree and find it was administrative action for the purposes of s 5A(1).
Was it reasonable administrative action taken in a reasonable manner?
For Ms Kennedy it is submitted that the visit was not reasonable administrative action and nor was it taken in a reasonable manner.
It is submitted that, even if the Tribunal finds that Mr Newton and Ms Oostendorp were invited to Ms Kennedy’s home, the visit should not have occurred, that she should not have been placed in a position even of being asked if they could visit. In effect, the submission is that, under no circumstances could such a visit be reasonable, and the mere fact that it occurred is sufficient to render it unreasonable. In support of that submission, reference is made to evidence from Mr Backen commenting that such a visit is “the last thing” that should happen to a person who is off work in Ms Kennedy’s circumstances.
We do not accept that submission. For the reasons we have given, we are satisfied that Ms Kennedy was quite agreeable to the visit, that she understood its purpose and who would be coming. There is nothing inherently unreasonable in a manager visiting a member of staff at home in the circumstances that Ms Kennedy found herself in.
We were referred to Centrelink’s Attendance at Work Strategy in its People Handbook which sets out guidelines for managing staff attendance and absences. In a section on Giving support to employees, line managers are advised they need to be supportive in their approach to managing attendance, including:
where employees are on extended absences, determining the appropriateness (including frequency) of contact with the employee during the absence;
For Ms Kennedy it is contended that, by not considering whether contact should have been made, Mr Newton’s and Ms Oostendorp’s conduct rendered the visit unreasonable.
We do not agree. The instruction must be read in the context of a detailed 13-page strategy. It is only one of 13 considerations when managing an employee’s attendance at work including such things as not pressuring employees to remain at, or attend work when they have a genuine need for a leave, and identifying where employees are having difficulties undertaking the duties and discussing strategies for assisting. Further, the instruction concerns contact initiated by an employer not, as we are satisfied occurred here, contact discussed and agreed with the employee.
Moreover, the visit has to be considered in the context that, without her medical certificates covering her sick leave, Ms Kennedy could not be paid. Everything points to the visit being motivated by trying to help Ms Kennedy out of the financial dilemma she would be in if she could not be paid and in response to her request for any help that might be available. Nothing leads us to conclude that she was in any way an unwilling or reluctant participant.
Finally, the emails that Ms Kennedy sent to Mr Newton following the visit cannot sensibly be reconciled with a finding that the visit was not conducted in a reasonable manner.
We are satisfied that the visit to Ms Kennedy’s home was reasonable administrative action taken in a reasonable manner in respect of her employment.
30 APRIL 2010: MEETING WITH MR NEWTON
Ms Oberg gave evidence that, on 13 January 2010, Sonia Friar, the Ethics and Integrity Officer, referred an email to her which had been received and forwarded by Ms Kennedy in late November 2009 to other members of staff, one of whom had complained that it contained images of naked children. At the time, Ms Kennedy had been recommended and confirmed for the role of Harassment Contact Officer (HCO) but was yet to undertake training for that role.
The email’s subject matter was “Why parents are stressed”. Attached to it were several photographs of young children apparently taken at a playground. A copy is in evidence. One shows a naked child; another shows a child without pants. It is fair to say that some people would find the photographs amusing (which seems to have been the point of circulating them in the first place) and inoffensive, but not everyone would and at least one person who received it found it offensive.
We should say at this point that we accept Ms Kennedy’s evidence that, when she received the email, she had a quick look at it and sent it on to others without looking closely at the attached photographs and she did not fully appreciate what she was forwarding.
Ms Oberg gave evidence that she thought Ms Kennedy needed to be aware of the potential for offence in such an email and the implications for a HCO in particular of sending such material. For various reasons, however, the matter was not raised with Ms Kennedy until 30 April 2010.
Ms Oberg gave evidence, which we accept, that various pressing matters assumed more importance early in the New Year. Then Ms Kennedy was on leave from early March and Ms Oberg herself was on leave from mid-March. Before going on leave, she asked Mr Newton, who would be acting in her position, to talk to Ms Kennedy about the email. He did so on 30 April 2010, about nine days after Ms Kennedy returned from leave.
Ms Oberg gave evidence that she told Mr Newton it would be “necessary to satisfy himself” that Ms Kennedy understood the special responsibilities she had as an HCO and to satisfy himself that “she really understood that … in order to reach a conclusion that she was an appropriate person to be harassment contact officer in the future”. If he was satisfied that Ms Kennedy (and the person who sent the email to her) understood it was inappropriate and not acceptable, the matter would rest there.
Ms Kennedy’s evidence
Ms Kennedy says on 30 April 2010, Mr Newton asked her to come into his office to discuss “a very serious matter”. He said she was “directly responsible for the distribution of child pornographic images to a staff member” who was “damaged” as a result. She could not believe he was accusing her of such things but “he just kept repeating that she was knowingly involved in child pornography” and said he was going to recommend to Ms Oberg that she “be stripped” of her duties as HCO.
Ms Kennedy says she left Mr Newton's office very upset, went straight to the bathroom and vomited. She felt sick and was scared she was going to lose her job. She managed to collect herself and send an e-mail to Mr Newton, which she copied to Ms Oberg, in which she did her best to remain professional and polite.
Mr Newton’s evidence
Mr Newton gave evidence that the email was one of a number of things Ms Oberg discussed with him by way of “handover” before she went on leave. He did not recall Ms Oberg telling him how he was to discuss the matter with Ms Kennedy (or the sender of the email). He recalled they did not agree with the complainant that the email contained child pornography but they nevertheless agreed it was not appropriate for distribution in the workplace. He did not think it was pornography and, had the Ethics and Integrity section thought it was, they would have dealt with it themselves.
Mr Newton recalled Ms Oberg asking him to make sure Ms Kennedy understood the impact on her role as HCO and that it was important that other staff could have confidence in her as HCO. He could not recall that they discussed specifics such as where the discussion was to take place or whether anyone else should be present.
Mr Newton gave evidence that his discussion with Ms Kennedy was to be informal and he expected it would be the end of the matter, but he gave some thought to it beforehand because he realised it was a sensitive matter and he did not want the discussion to take place in public. He waited about a week after Ms Kennedy returned to work to give her a chance to settle in again after being on leave. In that time, he talked to her a few times each day and she seemed happy to be back.
On the day of their discussion, as he recalled, Mr Newton asked Ms Kennedy to come and see him in his office because he needed to talk to her about something. No one else was present. He recalls showing her the email and attachments in hard copy and telling her there had been a complaint which had gone to the Ethics and Integrity branch that the email contained child pornography. He told her he did not think that was the case but it was not appropriate for distribution at work.
Mr Newton gave evidence that Ms Kennedy was shocked and upset, and said she was fully aware of the seriousness of what she had done but she had not intended any harm or offence because she did not realise that the email contained those images. He recalls telling her the matter was not going any further but that her role as HCO was of concern and he asked her to take time over the weekend to think about the matter and consider whether she was a suitable person for the role of HCO.
Mr Newton denies describing the images as “child pornography” himself but does not dispute using those words when conveying to Ms Kennedy the complaint by the other member of staff. He says he told Ms Kennedy he did not agree with that view but it was still not appropriate to forward such material at work and he would not have done so himself. He denies making threats about her continued role as HCO. He says had she not appreciated the implication for her role as HCO, he would have needed advice from the human resources staff as to what further steps, if any, to take.
Ms Kennedy’s email to Mr Newton after their meeting
On the afternoon of 30 April 2010, Ms Kennedy sent an email to Mr Newton. Its subject line was “Thank you for taking the time to bring this very important matter to my attention”. The email is reproduced in full because its tone and contents show not only that Ms Kennedy fully appreciated the implications of the offending email, but also that she had no difficulty with how the meeting was conducted.
Hi Trent,
Just wanted to sincerely thank you for bringing this very very serious matter to my attention. As discussed with you at our meeting today, I feel the matter is an extremely important one and can assure you that my full attention to the matter and extra care in future to ensure nothing like this is ever missed/overlooked or overseen ever ever again.
Again, please accept my sincerest apology to the matter that you have advised occurred via e-mail November 2009. As discussed I assure you that, whilst taken as a very very serious matter by me, there was certainly absolutely no intent to offend and in fact was not even aware when viewing the pictures sent by a fellow colleague at a glance that they contained the content that on further closer inspection with yourself today became evident to me for the first time.
As discussed there are many occasions where fellow employees send e-mails with cute or uplifting photos attached and of course anything sent to me via external sources where I do not know the sender I don't even open and immediately send to trash. But considering the very little time we have to access and go through all the e-mails we receive thoroughly in the call centre and without continued appropriate focus being on adhering to the metrics it is certainly sad but definitely the case here as mentioned that I did not see the finer detail of the photos when looking through them at a glance quickly and as the original e-mail came from a well-regarded trusted fellow employee who also knows the rules and regulations regarding the appropriate use of our facilities I felt I had no reason to suspect that the content would be of this nature, and again for this gross oversight I apologise profusely.
My intention of sending on any e-mails to fellow colleagues is only to lift [their] spirits or give them a laugh to brighten their(sic) day in what can sometimes be a very difficult job with complex customer issues, at times aggressive customers and also very sad/difficult calls we as CSAs is to receive on a regular basis hoping that something positive sent may make their day a little lighter.
As you are no doubt aware in the last five years of my employment, I always make 100% effort to conduct myself with integrity, honesty and respect both for my position here the organisation as a whole.
As this is certainly an isolated incident and a terrible terrible lesson to learn sadly I will not trust that what fellow colleagues send me are of the best content or could be trusted as I have foolishly done and will not in future forward uplifting things unless they thoroughly check them over twice and after that have team leader approval prior to distribution.
Thanks again to your time regarding this very very important matter and trust that my continued focus will remain on this and my work here will always be conducted with the best intentions and with honesty, respect and integrity after this very terrible lesson having been learnt.
Warm regards
Julie Kennedy
WAS IT REASONABLE ADMINISTRATIVE ACTION TAKEN IN RESPECT OF MS KENNEDY’S EMPLOYMENT?
Ms Kennedy does not dispute that this incident also is capable of being construed as administrative action and we are satisfied that it was. The matter went directly to the employment relationship between Ms Kennedy and her employer. It is not in dispute that it was reasonable administrative action. Ms Kennedy agrees, and we are satisfied, that a manager would be failing in his or her duty not to raise a complaint of that kind with an employee. She submits, however, that the action was not taken in a reasonable manner.
WAS IT TAKEN IN A REASONABLE MANNER?
Ms Kennedy maintains that the manner in which the meeting was conducted was not reasonable. In particular, she says the meeting should have been held promptly; she should have been allowed to have the support person present; and Mr Newton exceeded the “remit” given him by Ms Oberg by, in effect, requiring Ms Kennedy to show cause why she should continue in the role of HCO and threatening her with the sanction of being removed as HCO.
In relation to delay, it is submitted that the proper course would have been for Ms Oberg to raise the matter with Ms Kennedy before she did the training and actually assumed the role of HCO. However, while prompt action is always preferable, part of the reason for the delay was Ms Kennedy’s own absences from work around this time, and we accept Ms Oberg’s evidence that, had it been at “the more serious end of the spectrum”, it would have been dealt with more urgently. Further, we accept Mr Newton’s evidence that he waited until Ms Kennedy had been back at work for several days before raising the matter with her because he thought it could upset her to raise it immediately upon her return. That was entirely reasonable.
We do not accept that the manner in which the meeting was conducted was not reasonable because Ms Kennedy did not have a support person present. There was no need to ask if she wanted a support person because there was nothing formal about the meeting. It was a discussion that Mr Newton expected would go no further and it did not. We accept his evidence that its purpose was to draw the matter to her attention in an informal way and ask her to reflect on her role as HCO.
Ms Oberg’s evidence was that she discussed the matter during the handover with Mr Newton and asked him to discuss with Ms Kennedy her role as HCO. It was not a matter of particular seriousness; it had been referred to the Ethics and Integrity Committee as Centrelink procedures required and there was no suggestion by the Committee that it was child pornography, or deserving of special attention.
Ms Oberg gave evidence that she told Mr Newton he would have to satisfy himself that Ms Kennedy really understood the role of HCO in order to conclude that she was an appropriate person to act in that role in the future. Ms Oberg said if Ms Kennedy did not understand why it was not be appropriate, they “would have needed then to have instituted a review of her [HCO] role”. However, she anticipated Ms Kennedy would understand the implications and “take it on board”. She did not anticipate Ms Kennedy would find it “confronting”.
We are satisfied that Mr Newton did not go beyond what Ms Oberg had asked him to do. What she asked him to do was entirely reasonable. We accept that he used the words “child pornography” but only to convey the substance of the complaint. We do not accept that he accused Ms Kennedy of distributing child pornography. We are satisfied that the meeting was conducted in a reasonable manner.
CONCLUSION
In relation to events in 2007, we are not satisfied they occurred as Ms Kennedy claims. We are not satisfied that her employment contributed, to a significant degree, to her psychological condition. Even if the events did occur as she claimed, and did contribute to a significant degree to her condition, we would find that they were reasonable administrative action taken in a reasonable manner in respect of her employment.
In relation to events in 2010, we are satisfied that the visit to Ms Kennedy's home and the meeting with Mr Newton concerning the email were reasonable administrative action taken in a reasonable manner in respect of her employment.
We affirm the decision under review.
I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member. .............[SGD]...........................................................
Associate
Dated 27 September 2013
Date(s) of hearing 10-12 December 2012, 6 March 2013, 13, 14, 17, & 18 June 2013, and 26 and 31 July 2013
Counsel for the Applicant Mr M Vincent Solicitors for the Applicant RMB Lawyers Counsel for the Respondent Mr M Snell Solicitors for the Respondent Sparke Helmore
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