Kaur and Comcare (Compensation)

Kaur and Comcare (Compensation) [2021] AATA 585 (23 March 2021)
Division:GENERAL DIVISION
File Number(s): 2018/2655
2019/0712

Re:Loveleen Kaur
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date:23 March 2021
Place:Sydney

I affirm the decisions of the delegates of Comcare dated 10 April 2018 and 2 January 2019.
........................................................................
Mr Rob Reitano, Member
CATCHWORDS
COMPENSATION – whether Applicant’s managers raising matters concerning Applicant’s conduct and performance was the cause or significant deterioration of Applicant’s ongoing adjustment disorder – disease as defined in s 5B – whether reasonable administrative action in a reasonable manner taken – whether injury the result of the administrative action – reasonable administrative action in a reasonable manner – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B and 16
REASONS FOR DECISION
Mr Rob Reitano, Member
23 March 2021

On 14 July 2017 Ms Loveleen Kaur’s (Ms Kaur) commenced a period of absence from work for about three months as a result of her mental disorder, Major Depressive Disorder or ongoing adjustment disorder and anxiety and depressed mood. She returned to work on about 1 November 2017, but on 30 January 2018 left work and has not returned since.
The main issues in determining whether Ms Kaur has an entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988(Cth) (Act) is whether her disorder was caused, or made much worse, by the counselling or attempted counselling by her managers undertaken on 10 and 14 July 2017 and 30 January 2018 or had some other cause or was made worse by something else and whether the action taken on those occasions was reasonable administrative action taken in a reasonable manner
I have concluded that the action taken by the Department of Human Services (Department) through its managers was reasonable administrative action and that action was the circumstances without which Ms Kaur would not have suffered her mental disorder or the aggravation of it.
I have affirmed the decisions of Comcare rejecting her claim. I set out reasons for my decision.
FACTS
Ms Kaur commenced employment with the Department on 29 February 2016 after having been employed for about 10 years with the Roads & Traffic Authority of NSW (or one of its successor emanations).
In July 2016, before the completion of her probationary period Ms Kaur was placed on a corrective action plan for training and support. She had a conversation with Amanda Harvey (Ms Harvey), who was her manager at the time, about the resources that would be made available by way of training to assist her. She signed that plan.
In August 2016, Ms Kaur completed her probationary period because her performance was satisfactory, but it was specially noted in the probationary report prepared at the time that she would need ongoing support to meet the standards that were expected of her.
On 11 January 2017 Ms Kaur took five weeks off work to undergo surgery returning to full hours and duties on a graduated return to work program which Ms Kaur completed in March 2017. Shortly after returning to work Ms Kaur was diagnosed with benign positional vertigo so it was necessary for her to have some more time off work.
On 3 April 2017 Ms Kaur returned to work and eventually to unrestricted duties about a week later. Ms Kaur said it was about then that things were different because it was after then that her managers attitude towards her changed, but she told Dr Smith in November 2018 that it was from 17 July 2017 ‘that there were problems’.
The inconsistency is a little important mainly because the former version tends to suggest that there was some thing other than the events of 10 and 14 July 2017 that were the main cause of Ms Kaur’s adjustment disorder and the latter suggest it was the events of those days that was the main cause of it. In any event it is also relevant that it is after 10 April 2017 or 17 July 2017 that Ms Kaur says things changed.
On 11 April 2017, only about a week after her return to work and, before anything relevant to Ms Kaur’s claims about bullying and harassment had happened, Ms Kaur saw her general practitioner whose notes record a history of anxiety and obsessive compulsive behaviour but there is no reference to it having work related origins let alone origins that lay with her managers treatment of her. In one sense that is not surprising given that Ms Kaur says that, at its very earliest that was the time at which things changed.
Ms Kaur complains about a lack of training having been provided to her and that Ms Moloney, who was the Service Centre Manager between 31 October 2016 and September 2017 ‘tries to humiliate me’. These matters were expressed in different ways but the substance of them was fairly clear: Ms Kaur was saying that the training she had received was inadequate and that Ms Moloney was in intimidating and harassing towards her.
Ms Kaur’s complaints about her lack of training and access to the buddy system were denied by the Department and the managers concerned. There is a significant body of evidence that suggest that Ms Kaur did in fact receive adequate training.
Ms Abeir Homsi (Ms Homsi) provided a statement concerning the training she provided to Ms Kaur. She said that she provided training to Ms Kaur and that she was one of the ‘go to’ people for Ms Kaur. Ms Homsi said that it was difficult to provide constructive criticism to Ms Kaur because Ms Kaur would get upset quite easily when something wrong with her work was identified. Ms Homsi’s statement was consistent with what was contained in statements from other witnesses, in particular, Ms Moloney. The evidence was consistent both so far as the extent of the training provided and the apparent inability of Ms Kaur to accept criticism. The evidence overwhelmingly points to the conclusion that Ms Kaur received adequate training and support in her work. I find that Ms Kaur received adequate training and support at work.
Ms Kaur described other instances of ‘intimidating’ and ‘rude’ behaviour directed at her by Ms Moloney. She said that on one occasion, for which no time or date was provided, Ms Moloney said in front of the other staff that she was the only one booking interpreters in the wrong way. She said Ms Moloney did this several times. Ms Kaur says her later enquiries revealed that she had in fact done that work correctly. Ms Kaur also referred to some instances where she said Ms Moloney had been rude to her. Ms Moloney denied that she had intimidated or had been rude to Ms Kaur. I accept Ms Moloney’s denial in particular because it was not challenged and it is consistent in many respects, especially so far as Ms Kaur’s inability to accept criticism is concerned, with other evidence.
Ms Kaur said in her submissions that Ms Moloney ‘excessively monitored my work, gave me feedback in an insincere and disrespectful manner. She isolated me from other staff members …and that her actions were that of bullying and harassment and it was unreasonable administrative action.’ The evidence does not support a finding that Ms Moloney excessively monitored Ms Kaur’s work or that Ms Moloney gave feedback insincerely or disrespectfully.
There are few specific examples given of any such behaviour by Ms Moloney and in general the evidence does not support findings along the lines of those referred to by Ms Kaur in her submissions. One matter that is obvious from the facts is that there appears to have been no contemporaneous complaint by Ms Kaur to anyone about any such matters which given the breadth and seriousness of the claims would reasonably be expected.
On 4 April 2017 and until about 14 July 2017 Ms Kaur was provided with feedback about aspects of her work. There is not much detail about what happened in any of these meetings. There is nothing that suggests that this was done in an inappropriate manner or was done ‘excessively’. There is nothing that would suggest that Ms Kaur was affected, in the sense of suffering any injury or disease, at all by any such feedback at those times other than in the case of the events of 10 and 14 July 2017 to which I will turn in a moment.
On 30 June 2017 there was an incident involving a customer who asked Ms Kaur if he could see a supervisor. The customer had been left to wait for an hour. Ms Homsi went to speak to Ms Kaur. Ms Kaur told Ms Homsi that she was harassing her. Later that day Ms Moloney who learnt about the issue from an email that was sent to her tried to discuss the matter with Ms Kaur. Ms Kaur says that Ms Moloney became angry and referred several times to the fact that Ms Kaur had wasted the customer’s time. Ms Kaur said this happened in front of other staff and that she was humiliated.
Again, Ms Moloney denied the version given by Ms Kaur. Ms Moloney described Ms Kaur’s version that involved Ms Moloney being angry, repeating her claim about the customer’s time being wasted and attempting to humiliate Ms Kaur as ‘completely untrue’. I am unable to find that the incident occurred in the manner described by Ms Kaur because of the two competing versions given, the fact that Ms Kaur’s inability to accept criticism is corroborated by other witnesses and because of the lack of any testing of Ms Moloney’s version of events. I accept Ms Moloney’s denial.
On 10 July 2017 Ms Kaur attended a meeting which was conducted by Ms Moloney, Ms Nadine Spano who was the Region Manager and two representatives of the Community and Public Sector Union who were at the meeting representing Ms Kaur.
The substance of the meeting was concerned with claims of ‘inappropriate behaviour’ and ‘underperformance’ by Ms Kaur. The ‘inappropriate behaviour’ concerned the incident on 30 June 2017. The meeting proposed placing Ms Kaur on what was known as a ‘Back on Track Plan’ following an annual review that was to be undertaken about a week later on 17 July 2017. It is important that the Back on Track Plan was to be implemented a week later and that at that stage it was on the table for discussion.
The course of the meeting and what was said during it was recorded in an email from Ms Spano to Ms Moloney on 11 July 2017. It is not necessary to set out the terms of that email other than to note that the meeting appears to have proceeded in a fairly methodical, temperate, and civil way during which claims were made by Ms Moloney about Ms Kaur’s claimed shortcomings and Ms Kaur disagreeing or explaining her position in relation to many of them. Agreement was reached about some matters that were to be put in place to deal with issues concerning Ms Kaur’s performance. There was nothing in the meeting that suggested that either party or any of their representatives was not listened to or allowed to have their say. One of the union representatives asked questions on Ms Kaur’s behalf.
It is apparent from the notes of the meeting that both parties had different views about things but there was nothing to suggest that the concerns raised by each of Ms Moloney and Ms Kaur were other than genuine. The meeting concluded with agreement about a process ‘moving forward’, in particular that, feedback and concerns about Ms Kaur’s performance would be dealt with in a private room away from the open area. Also, it was said that the meeting was informal and was not a formal counselling session although it was indicated that future inappropriate conduct left open the possibility of more serious consequences. The matter appears to have been dealt with in a low key manner as was appropriate.
Ms Moloney and Ms Spano both gave evidence by statement that the meeting took place in a manner and in accordance with what was set out in the email. This is not surprising given that Ms Spano was the author of the email. Ms Moloney confirmed the contents of the email as a record of the meeting. They were not cross-examined or challenged about their evidence. Their evidence is consistent with what I have already said about the course of the meeting, that is that it proceeded in a temperate manner with everyone having an opportunity to have their say.
Ms Kaur said that it was ‘unreasonable administrative action’ to put her on a Back on Track Plan because that matter had not been discussed with her previously or notified to her previously. I reject that suggestion mainly because the opportunity to discuss that matter even if presented as a fait accompli, was presented to Ms Kaur at the meeting itself. There was every opportunity for her, or those representing her, to say what they wanted about such a course. In any event, the evidence of Ms Moloney and Ms Spano was, of course, that the proposed Back on Track Plan was not to be implemented until after the annual review which was scheduled for a week later. There was plenty of time to discuss the matter.
There was also the context of the meeting which had as its backdrop the earlier corrective action plan and other discussions about Ms Kaur’s performance. Further, placing Ms Kaur on a Back on Track Plan was not disciplinary action and was undoubtedly designed to deal with to assist Ms Kaur meet any performance deficiencies, which even if she did not accept existed, and on the face of things they did, would have done her no harm at all.
On 14 July 2017, before the annual review that was to happen on 17 July 2017, Ms Moloney approached Ms Kaur with a view to providing Ms Kaur with some informal feedback that apparently related to customer complaints, staff complaints and some other complaints that had been made since 10 July 2017. Ms Kaur declined to participate in the meeting with Ms Moloney.
On 17 July 2017 Ms Kaur was certified as medically unfit to attend work between that day and 19 July 2017 by Dr Kapila. The doctor’s notes record that that Ms Kaur reported she was ‘being bullied at work as working on a high leel (sic) and boss trying to question her performance, which makes her very anxious and concerned…’.
A few days later, on 20 July 2017, another doctor, Dr Kheray who Ms Kaur also consulted recorded that Ms Kaur reported ‘has new manager bullying her and her colleagues and over-supervision’. The only reference in the notes to anyone being responsible for Ms Kaur’s consultation with either doctor is ‘at a high level’, ‘her boss’ and ‘new manager’. The lack of any reference to others harassing or engaging in conduct directed at or to Ms Kaur is significant because it strongly suggests in a manner contemporaneous with the events that the only complaint was with what had happened on 10 July 2017.
On 20 October 2017 Ms Kaur consulted Dr Kheray again and said something that caused the doctor to write that she was ‘keen to go to work on trial’ and that she ‘seems settled as her manager and regional manager have been transferred.’ Her manager and regional manager were the two people involved in the meeting that preceded her leave on 17 July 2017. Again the suggestion is that it was only Ms Moloney and Ms Spano who were cause for concern. Ms Kaur was not complaining about anything more as being problems for her.
On 25 October 2017 Ms Kaur returned to work. It was proposed that she was to start work on a graduated return to work program. There was a meeting between her and Ms Nariman Ayyoub. Ms Ayyoub was the then Line Manager responsible for the Auburn centre. She was one of Ms Kaur’s managers. There was discussion about Ms Kaur’s training needs, hours, her 2017 - 2018 performance assessment and what was expected of her. Things did not go well in the meeting. Ms Kaur became upset. She indicated that she did not wish to continue in the meeting without a union representative present. The meeting did not continue. Ms Kaur left work for the day indicating that she may not return the following day.
At some point on the same day there was a disagreement about when Ms Kaur was to take her lunch break. The roster said she was to take lunch at 12 noon but for reasons that do not matter Ms Kaur had changed that with other staff. Ms Susan Smith, Ms Kaur’s supervisor, apparently insisted that Ms Kaur take her lunch break at 12 noon. There was a disagreement. Ms Smith apologised when Ms Kaur became upset and allowed Ms Kaur to take her lunch break at 1.00pm.
There does not seem to have been much more to the issue although Ms Kaur says Ms Smith raised her voice. Ms Kaur also said that Ms Smith at some stage described her customer service as ‘shitty service’. Other than that statement there is no other conduct of any consequence that might constitute bullying or harassment by Ms Smith. There is no context given to the claim that Ms Smith said those words. Absent specific context I am reluctant to find that single instance of disagreement between two employees, even if voices were raised, constituted bullying and harassment.
On 1 November 2017 Ms Kaur returned to work. By 3 November 2017 Ms Ayyoub, and the new Regional Manager, Mr Paul Tait both agreed that it was appropriate to allow Ms Kaur a ‘fresh start’. The return to work program did not proceed.
On 4 November 2017 Ms Kaur made a claim for compensation alleging she was suffering from anxiety, stress and depression as a result of bullying and intimidation at work by her manager and other staff. The symptoms were said to have first been apparent on 14 July 2017 which was the day after the informal meeting with Ms Moloney and Ms Spano. It is to be noted that at this point there was reference to ‘other staff’ but none are named or identifiable from the description.
On 30 January 2018 there was an incident between Ms Kaur and Ms Yvette Sharpe who was another customer service officer which involved the two of them having an argument about the correct way to deal with a customer.
Following the argument Ms Benita Acharya approached Ms Kaur and asked her to accompany her into a room. This was consistent with the agreement that had been arrived in the meeting on 10 July 2017 with Ms Moloney about how matters were to be raised with Ms Kaur. Ms Kaur asked Ms Acharya if she was in trouble. Ms Acharya said that she wanted to have a chat. She told Ms Kaur she was not in trouble.
Once in the room Ms Kaur started talking, questioning why she was the one taken into the room and making claims of favouritism and the like. Ms Acharya eventually had to tell Ms Kaur to stop speaking so that she could explain things, but almost as soon as she began Ms Kaur started speaking over her about Ms Sharpe ‘acting like the Queen who seemed to know it all’. She referred to staff not doing their job and managers not addressing the real issues. Ms Acharya tried to explain to Ms Kaur that there were two aspects to every problem being ‘the problem itself and the other is how you respond to the problem’. At that point Ms Kaur accused Ms Acharya of being ‘one sided’ in blaming her for the problem with Ms Sharpe. Ms Kaur said things about going to the union and involving support people. Ms Acharya tried to continue the discussion to no avail on three occasions, but Ms Kaur would not participate. Ms Kaur left the office shortly afterwards.
Ms Kaur put a different a version on this conversation, but in her version, she also says that Ms Acharya had attempted to discuss the issue with Ms Kaur and that Ms Kaur was the one who refused to discuss the matter. Even if on Ms Kaur’s version Ms Acharya started the conversation by ‘blaming her’, and Ms Kaur does not say what words were spoken to her in that regard, the course she took of refusing to discuss the matter and perhaps finding out what Ms Acharya had to say was unreasonable.
On 30 January 2018 Ms Kaur consulted Dr Sanjeev Relan who referred her to a psychologist. Dr Relan’s notes record that Ms Kaur was then reporting that her manager has been asking her to come into the room and blaming her to be in the wrong without listening to her. On the evidence there is no suggestion that Ms Acharya was at any time not willing to listen to Ms Kaur. Even Ms Kaur does not say that in her evidence – she refers to the fact that Ms Acharya ‘followed her…asking me to come to room for discussion.’ Ms Kaur did not say anything, so it would appear, to Dr Relan about the reason that she refused to engage with Ms Acharya was the lack of a support person.

Again, having regard to Ms Acharya’s evidence, the inconsistencies in Ms Kaur’s versions between what she told her doctor and what she said in her statement and her previous manner of responding to criticism about her work, I prefer Ms Acharya’s evidence about what took place and what was said. Further, there was nothing at all about Ms Acharya trying to have a discussion with Ms Kaur about her work or the dispute that had arisen between Ms Kaur and Ms Sharpe especially given that Ms Acharya was her manager. In any event, there does not seem to be on either version anything unreasonable in someone in Ms Acharya’s position raising in a relatively informal way a matter of concern with an employee under her supervision. Nor was there anything unreasonable in the way in which Ms Acharya raised the issue.
Ms Kaur has not returned to work since 30 January 2018.
I should refer to some of the other complaints raised by Ms Kaur about how she was treated whilst working at Auburn. Ms Kaur refers in her statement to the organization of various events which as I have noted earlier appear to lack any time or date so it is not possible to attribute any relevance to them given that it is only matters after early April 2017 or after 14 July that on Ms Kaur’s case are relevant to when her problems started. There are other instances where she expresses what happened in general or conclusory terms such as someone saying ‘rude words’ or asking about when she was ‘bringing another sick leave certificate’ which have little context and about which without detail it is not possible to form any useful assessment about. Ms Kaur refers to comments that were directed to her about her clothing but there is nothing that enables the reader to understand what was said or why the comments were in some way or another offensive or harassing. Ms Kaur referred to staff members calling her loudly, banging on her desk to intimidate her but she gave very little details of these matters and also failed to identify when they occurred.
Ms Kaur refers to a series of events with other employees such as a Christmas in July event in 2017 where she says she was excluded from participating in the ‘Kris Kringle’. She referred to being excluded from group photos by other staff members. She referred to an event in December 2017 where another staff member was ‘not happy with’ a gift Ms Kaur gave her and did not even thank her for the gift. She referred to some comments that were made to her by other employees that she considered offensive. . Ms Kaur’s lack of participation in the hearing did not permit any questions to be asked about whether she persued any of these complaints at the time..
In relation to these events, I am unable to make any finding of fact. Far less am I able to conclude from them that they constituted bullying and harassment. There is an event concerning what appears to be an offensive drawing of Ms Kaur that was done by another employee who Ms Kaur describes as ‘a colleague’ that could constitute harassment, but I do not know when that occurred. There were also some comments passed by the same fellow employee that could be regarded as offensive that occurred on 1 November 2017, but they do not have any relationship with the main cause of Ms Kaur’s injury which I refer to later. I am unable to find that there was anything such as ‘micromanagement’ ‘misuse of disciplinary action’ and ‘undermining of behaviours of Indian colleagues’ the relevance of which will become apparent later
THE MEDICAL EVIDENCE
In a report dated 15 November 2017 Dr Ben Teoh provided a diagnosis in relation to Ms Kaur of Adjustment Disorder with Anxious Mood (DSM5 Diagnostic Criteria). In that report Dr Teo recorded Ms Kaur as telling him about being ‘bullied and harassed by the manager who had discussed about her being incompetent in front of other people’ and that she ‘was forced to admit that she could not do her job.’ She also told Dr Teoh she was treated like a child. Dr Teoh said that Ms Kaur had been able to return to work and that she had been coping with suitable duties. He said that Ms Kaur could participate in a rehabilitation program, that she was fit to commence such a program and that she would benefit from such a program. He recommended she see a psychologist for two months and her general practitioner for three months.
In a report dated 19 December 2017, Dr Scott Clark expressed the opinion that Ms Kaur was not then reporting sufficient symptoms to meet criteria for a psychiatric condition. There were ‘residual symptoms of anxiety that occur sporadically in relation to workplace issues.’
On 21 September 2018 Dr Frank Chow, Consultant Psychiatrist, diagnosed Ms Kaur as suffering from Major Depressive Disorder in partial remission which were ‘an ongoing progression of her difficulties since her first claim in July 2017’.
On 26 September 2018 Associate Professor Michael Robertson after examining Ms Kaur and reviewing all of the available evidence said that Ms Kaur presented with symptoms of ‘ongoing adjustment disorder and anxiety and depressed mood’. He too placed the date of injury as being that of July 2017 with the ‘February 2018 injury as being a continuation or exacerbation of the July 2017 injury’. Associate Professor Robertson did not express an opinion about the predominant contributing factor to Ms Kaur’s symptoms but referred to ‘multiple themes of difficulty including undermining behaviours on the part of Indian colleagues…micromanagement and misuse of disciplinary action as a means of manipulation and threat’ and ‘the resumption of problematic behaviour by colleagues’. This appears to have proceeded on an acceptance by Associate Professor Robertson of what Ms Kaur told him. I am unable to make a finding on the evidence about any of those matters.
On 13 November 2018 Dr Glen Smith a Consultant Forensic and Clinical Psychiatrist after reviewing much of the documentary material that was available at that time and examining Ms Kaur expressed that opinions that Ms Kaur suffered a psychological illness on 14 July 2017 presenting with symptoms consistent with ‘major depressive disorder with anxious distress.’ Further, Dr Smith expressed the opinion that on 30 January 2018 that condition worsened when Ms Kaur was presented with further questions about her performance. Dr Smith went on his report and said:
In my opinion, the predominant contributing factor was the performance management of July 2017. Prior to that she had not been substantially distressed and she had not required treatment. (The emphasis is my own)
THE ACT
Section 16 of the Act provides that Comcare is, subject to the Act, liable to pay compensation to an employee in respect of an ‘injury’ suffered by an employee if the injury results in incapacity for work.
Section 5A of the Act defines the word ‘injury’ and provides:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the Act defines the word ‘disease’ and provides:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
ISSUES
The issue may be fairly narrowly confined to whether Ms Kaur suffered an injury within the meaning of the Act even though Comcare expressed the issues more widely. For that reason it will be necessary to briefly deal with the other issues that have been raised.
The two issues are first whether Ms Kaur suffered an ailment or an aggravation to an ailment which was contributed to, to a significant degree her employment. If that were so, then the next question is whether that disease is excluded from the meaning of the word ‘injury’ in the Act because it was as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
A DISEASE AS DEFINED IN s.5B?
This issue requires consideration of whether Ms Kaur has suffered an ‘ailment’ or the aggravation of an ‘ailment’ that was contributed to a significant degree by her employment.
The medical evidence both in terms of the expert evidence, and that of her treating doctors by way of contemporaneous reports and notes, generated after 17 July 2017 supports a conclusion that Ms Kaur suffered from an ailment which was either Major Depressive Disorder or ongoing adjustment disorder and anxiety and depressed mood which I have referred to earlier compendiously as adjustment disorder.
Further, the evidence is fairly overwhelming so far as the fact that the disease suffered by Ms Kaur was contributed to a significant degree by her employment. So much is clear from the opinions expressed by both Dr Smith and Associate Professor Robertson. Further, again the contemporaneous notes of Ms Kaur’s treating doctors support that conclusion.
That injury was more likely to be on both occasions, that is on 10 and 14 July 2017 and on 30 January 2018, the aggravation of the condition first referred to in Dr Kheray’s notes of 11 April 2017 which recorded a history of anxiety. But that finding is not essential here and it maybe that the ailment first arose as a result of the events of 10 and 14 July 2017 and were aggravated on 30 January 2018. On both occasions the injury arose out of the course of employment and was contributed to a significant degree by the employment. The events on all of the three days were a product of the employment. REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER?
The substantial issue that I have identified concerns whether the action taken against Ms Kaur was reasonable administrative action taken in a reasonable manner and, if it was, whether Ms Kaur’s ailment which was a disease for the purpose of the Act was contributed to a significant degree by that action. I will deal with both events separately.
The starting point in relation to the 10 and 14 July 2017 is the fact that Ms Kaur had well before her absences in January 2017 and March 2017 been identified as an employee who required ongoing support in reaching the standards expected of her.
Second, the events of 30 June 2017 involving the disagreement with Ms Homsi irrespective of the rights and wrongs of the situation required investigation or at least exploration. It was at least reasonable for management to make enquiries.
Third, there was, so it appeared, a continuing issue related to Ms Kaur’s performance at the time. The existence of those concerns was not something new to Ms Moloney having come on the scene as they had been recorded and referred to in August 2016 when Ms Kaur’s probation was confirmed.
Fourth, and significantly in the view I take, the meeting of 10 July 2017 was clearly identified as an informal one. It heralded nothing about the existence or commencement of any formal process against Ms Kaur. True it is that she was told that she would be placed on a Back on Track Plan but that was neither disciplinary nor hostile to Ms Kaur’s interests: it had as its purpose assisting Ms Kaur to meet the expectations that she was being told she was not meeting.
Finally, the meeting was conducted in a moderate, temperate and constructive manner in circumstances where Ms Kaur was represented by two representatives and, so it would appear from the record of the meeting, everyone present had an opportunity to have their say.
Nor can it be said that Ms Moloney’s approach of 14 July 2017 was somehow unreasonable perhaps especially because Ms Kaur refused to engage with her at all so that nothing much at all happened beyond Ms Moloney seeking to raise matters with her that she wanted Ms Kaur to be aware of before her review that was scheduled a few days later, a matter which should have been fairly unremarkable in the circumstances given Ms Moloney’s role.
I find that the events of 10 and 14 July 2017 were reasonable administrative action taken in a reasonable manner.
In relation to the circumstance of 30 January 2018 I have preferred the evidence of Ms Acharya to that of Ms Kaur about the detail of what happened that day.
Again, there are several factors that lead to conclude that the action taken on that day was reasonable administrative action taken in a reasonable manner. First, the action was taken by a manager in respect of an employee over which she had management responsibility. Second, the matter needed to be discussed because of the incident that had happened that day. Third, the matter again was being dealt with informally with Ms Acharya making it clear that Ms Kaur was not ‘in trouble’. Fourth, the matter was sought to be dealt with privately in a private room as had been agreed at the meeting in July 2017 was the appropriate course to take. Fifth, on either version there seems nothing inappropriate in the tone and words spoken by Ms Acharya. In fact, the issue of words and tone and refusing to allow Ms Acharya to speak, strongly suggests that it was Ms Kaur who was unreasonable.
I find that the events of 30 January 2018 were reasonable administrative action taken in a reasonable manner.
WAS THE INJURY THE RESULT OF THE ADMINISTRATIVE ACTION?
If the injury, which is the aggravation of Ms Kaur’s Major Depressive Disorder or ongoing adjustment disorder and anxiety and depressed mood was the result of the reasonable administrative action to which I have referred, it is specifically excluded from the kinds of disease which fall within the Act. It is therefore necessary to consider whether Ms Kaur would have suffered the disease whether it be an ailment or the aggravation of an ailment if that action were not taken against her.
The expert medical evidence focused upon the injury that was described as the July 2017 injury which was clearly a reference to the events of 10 and 14 July 2017. Dr Smith clearly articulated the predominant contributing factor to Ms Kaur’s disease was ‘the performance management of July 2017’. That illness was said to re-emerge on 30 January 2018 when Ms Kaur’s performance was again challenged. Dr Smith expressed his reasons for this conclusion fairly succinctly: before 17 July 2017 Ms Kaur had not been substantially distressed or required treatment. Before then her condition was not clinically significant. It might be added to that, that before then Ms Kaur had not seen any need to seek medical treatment and, in fact, when she did her only complaints were confined to those against Ms Moloney initially and later Ms Acharya. There is an element of consistency between the circumstances, the raising of performance issues by a supervisor, which tends to suggest that Ms Kaur may have had some particular vulnerability in that regard.
Associate Professor Robertson’s report does not deal with the specific events of July 2017 or January 2018 but generally refers to the disorder emerging through the nature and conditions of employment in July 2017. Associate Professor Robertson refers to ‘problematic behaviours of colleagues’ so far as the January 2018 event is concerned but does not really address the matters specific to the two administrative actions identified.
So far as the nature and conditions of employment to which Associate Professor Robertson specifically refers, namely ‘micromanagement’ ‘misuse of disciplinary action’ and ‘undermining of behaviours of Indian colleagues’ I am unable to make any findings about those matters as there is either no evidence about them or insufficient evidence about them. I am therefore unable to find that those matters contributed to a significant degree to Ms Kaur’s disease. It is relevant that Associate Professor Robertson’s report refers to the two dates of injury being July 2017 and February 2018 which is contemporaneous with the administrative action which occurred at about those times.
I find that Ms Kaur would not have suffered Major Depressive Disorder or ongoing adjustment disorder and anxiety and depressed mood if the administrative action taken against her on 10 and 14 July 2017 and on 30 January 2018 had not been taken.
CONCLUSION
I have found that the disease or aggravation of the disease suffered by Ms Kaur was as a consequence of reasonable administrative action taken in a reasonable manner in respect of Ms Kaur’s employment such that her Major Depressive Disorder or ongoing adjustment disorder and anxiety and depressed mood is excluded from the definition of injury in the Act so as to preclude her claim for compensation.
I affirm the decisions of the delegates of Comcare dated 10 April 2018 and 2 January 2019.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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Associate
Dated: XX March 2021

Date(s) of hearing: 19 and 20 October 2020

Date final submissions received: 10 November 2020

Applicant: Ms L Kaur

Counsel for the Respondent: Mr M Gollan

Solicitors for the Respondent: Mr C Wong

[2021] AATA 585

23 March 2021

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Remedies

Date(s) of hearing:	19 and 20 October 2020
Date final submissions received:	10 November 2020
Applicant:	Ms L Kaur
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Mr C Wong