Julie Kennedy and Comcare

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[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, Member
Date   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, Member

BACKGROUND

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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).

  6. 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

  7. 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.

  8. Section 5A(1) provides that injury means:

    (a)a disease suffered by an employee; or

    (b)an…

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Details
Case
[2013] AATA 696
Decision Date

CaseChat Overview and Summary

Julie Kennedy, the applicant, sought a review of a decision by Comcare, the respondent, which rejected her claim for workers' compensation on the basis that her psychological condition was not caused by her employment to a significant degree. The dispute was heard and determined by the Administrative Appeals Tribunal (the AAT). The central legal issue before the AAT was whether Ms Kennedy's psychological condition was significantly contributed to by her employment, particularly in relation to alleged bullying and harassment by her former Team Leader, Mr Golden. The AAT had to assess the credibility of Ms Kennedy's claims against the evidence provided by Mr Golden, Ms Oberg, and Ms Krkovski, as well as the contemporaneous records from 2010. The AAT found that Ms Kennedy's account was inconsistent with the evidence of other witnesses and contemporaneous records. Mr Golden's conduct, as described, was found to be consistent with his duties as Team Leader. The AAT did not accept that Ms Kennedy's employment in 2007 contributed to her psychological condition to a significant degree, as her condition was primarily influenced by personal stressors outside of work.

The AAT concluded that even if Ms Kennedy's claims about events in 2007 were accepted, the actions taken by her employer, such as the meeting in October 2007 and the subsequent transfer to a new team in December 2007, were reasonable administrative actions taken in a reasonable manner. The AAT was also satisfied that the visit to Ms Kennedy's home and the meeting concerning the email in 2010 were reasonable actions taken in respect of her employment. As a result, the AAT affirmed the original decision of Comcare to reject Ms Kennedy's claim for workers' compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.