Kennedy and Comcare (Compensation)
[2017] AATA 1271
•11 August 2017
Kennedy and Comcare (Compensation) [2017] AATA 1271 (11 August 2017)
Division:GENERAL DIVISION
File Numbers: 2013/6328 and 2014/2565
Re:Wendy Kennedy
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:11 August 2017
Place:Melbourne
The Tribunal affirms the decision under review in proceedings 2013/6328 and 2014/2565. The Applicant is not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
[sgd]........................................................................
Dr Damien Cremean, Senior Member
COMPENSATION — Medibank employee — Claim for depression, anxiety and stress as a result of bullying and harassment — Whether accepted disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of employment — Aggravation of mental injury — Adjustment disorder with anxiety — Whether aggravation was a result of reasonable administrative action taken in respect of the applicant’s employment — Whether the administrative action contributed to the aggravation to a significant degree — decisions affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Comcare v Martin [2016] HCA 43
Comcare v Reardon [2015] FCA 1166
Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Hart v Comcare (2005) 145 FCR 29
Martin v Comcare (2015) 238 FCR 373
Re Ferguson and Commonwealth Bank of Australia [2012] AATA 718WorkCover Corporation (SA) v Summers (1995) 65 SASR 243
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
11 August 2017
INTRODUCTION
The Applicant, Mrs Wendy Kennedy, made two claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), both of which are the subject of this review.
Mrs Kennedy’s first claim (in proceeding No 2013/6328) is dated 20 May 2013 and is for Depression, anxiety and stress (primary claim). The Applicant stated that she first noticed this condition on 19 May 2012 and first sought medical treatment for it on 19 June 2012. Mrs Kennedy made a second claim (in proceeding No 2014/2565) on 26 September 2013 for Depression, anxiety stress/Adjustment Disorder with anxiety (secondary claim). The Applicant stated that she first noticed the aggravation of her condition at 10.30am on 2 July 2012 and first sought medical treatment for it on 17 July 2012.
In relation to the primary claim, the Respondent, Comcare, made a determination on 16 August 2013. The Respondent decided that, although Mrs Kennedy had suffered an adjustment disorder with anxiety that was contributed to significantly by her employment (with a deemed date of 19 June 2012), reasonable administrative action reasonably undertaken was the factor that contributed significantly to the development of the condition. Therefore, her primary claim failed because her condition was excluded under section 5A of the Act. On 5 November 2013 a reconsideration of the determination was requested by Mrs Kennedy, but the decision was affirmed.
In response to the secondary claim, the Respondent decided it was not satisfied that Mrs Kennedy had suffered an aggravation of her adjustment disorder but that, if this was not so, her claim failed because her secondary condition was also excluded under section 5A of the Act A reconsideration was requested by Mrs Kennedy, but the decision was also affirmed.
Mrs Kennedy lodged an application with this Tribunal on 5 December 2013 (proceeding 2013/6328) for review of the decision of the primary claim. She stated her reasons for doing so as being due to The lack of taking events into A/C after date of injury. The fact that I was knocked back on the very thing I was complaining about. It was not a reasonable management action. It was ridiculous. It was a biased decision. My point was not taken into account.
Mrs Kennedy lodged a further application with this Tribunal on 16 May 2014 (proceeding 2014/2565) for review of the decision of the secondary claim. She stated her reasons for doing so as being that It was not reasonable. There was no issue, no expectation of delivery on the date specified or any other date. It was made up & an injustice. There was no wrongdoing on my part & they (managers) refused to listen. It significantly traumatised me.
Hearing
The hearing was first held for three days from 16 to 18 December 2015, and resumed on 22 July 2016. These do not include the dates of the various directions hearings which were held for the proceedings.
At the hearing, the Applicant was self-represented but was accompanied by a McKenzie friend, Ms Ingrid Heyn. The Respondent was represented by Ms Cathy Dowsett of Counsel, instructed by Ms Ashlee Briffa and Ms Peta Heffernan of the Australian Government Solicitor. Mrs Kennedy gave lengthy evidence and called as witnesses Ms Joelyn Dean, Ms Kerry Genovese, psychologist, Mr Michael Fisher, Mr Liam Whelan and Mr Jacob Chapman.
Granting and subsequent revocation of confidentiality order
On 20 February 2014 Mrs Kennedy applied to the Tribunal for an order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), to suppress her identity in relation to proceedings. She did this on the basis of her belief that [her] complete recovery [was] best assisted by obtaining ongoing employment…and [the] case [would] damage [her] prospects if [her] name was made public.
On 21 March 2014 Senior Member John Handley made an order pursuant to section 35(2)(aa) of the AAT Act, directing that the publication of the name and address of the Applicant was to be prohibited and her identity to be substituted with LDZS.
During the fourth day of the hearing on 22 July 2016, I directed that the Applicant should no longer have anonymity, as I saw no basis in law for it. I heard insufficient evidence from Mrs Kennedy for the granting of a confidentiality order based on the premise that her employment prospects could be damaged if the hearing were to be held in public.
The long established tradition in our law is one of open justice. In Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378 French CJ, Hayne, Kiefel, Bell and Keane JJ stated (at [44]):
the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.
I should note that, although in Zhao the High Court articulated the principle of open justice in the context of a court process, the Tribunal’s function as an executive body does not preclude it from adopting the principles and procedures of a court. Additionally, the principle of open justice is firmly stated in section 35(1) of the AAT Act where it states that:
Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
The principle is stated again at section 35(5) which sets out matters that the Tribunal is to take into account as the basis for its consideration whether it should make an order under section 35(2), (3) or (4). They include the following:
a) that hearings of proceedings before the Tribunal should be held in public; and
b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties…
Furthermore, in a document provided to the Tribunal by the Applicant, Mrs Kennedy requested a private hearing because she would not like a repeat of the ‘peanut gallery‘ that she suffered at Fairwork. This document was a reference to other proceedings the Applicant was involved in concerning her employment. I was not told much about these proceedings but it appears that they were before the Fair Work Commission. The proceedings were due for determination on 21 November 2013, but were, in some fashion, apparently cancelled by a Commissioner.
In respect of some witnesses, the Applicant said she would like to have a closed circuit TV so she doesn’t have to look at them whilst direct questioning or cross-examining. She wrote that this also applies to anyone the Respondent puts forward as a witness that the Applicant may feel uncomfortable with. I considered this an unusual request. As it happens, no witness gave evidence by video-link during the hearing.
Some of the reasons for the protracted nature of the proceedings lie with the Applicant. She lacks legal training, is unfamiliar with procedures, gave lengthy evidence, had difficulties formulating questions for cross examination, undertook lengthy cross examinations and, in the earlier hearings, experienced problems with her vision. That is not to say, however, that she was not resourceful. I am satisfied she was quite resourceful. Further though, the other reasons for the protracted nature of the proceedings lie with illness on the part of the Tribunal.
At the beginning of the hearing Mrs Kennedy indicated the relief she sought from the Respondent was in the form of an apology. Indeed, I note that in his report dated 30 September 2014 Dr Lester Walton, consultant psychiatrist, stated that Mrs Kennedy labels herself as a person with a strong sense of values and justice and is bringing proceedings to this Tribunal as a matter of principle. However, no apology was given by the Respondent to Mrs Kennedy. Nor was any application made by the Respondent then or earlier to dismiss the proceedings as an abuse of process in that a remedy not provided for by the Act was being sought by the Applicant.
The Applicant also indicated during the hearing that she wanted to see the Respondent held accountable. I interpreted this to mean that she wanted her employer held responsible for perceived wrongs done to her.
LEGISLATION
Entitlement to compensation
Section 14(1) of the Act deals with injuries suffered by an employee resulting in death, incapacity for work or impairment. Relevantly, it provides:
Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
An injury is defined exhaustively in section 5A(1) as:
(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 the 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.
Section 5A(1) provides that an 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.
As per section 5B(1) of the Act a 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.
A reasonable administrative action by section 5B(2) includes:
(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 employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s 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, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
A significant degree is defined exhaustively in section 5B(3) as a degree that is substantially more than material.
Under section 4(1) of the Act an aggravation includes acceleration or recurrence. An ailment is defined as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 6(1)(b) provides that an injury must be treated as having arisen out of or in the course of a person’s employment if sustained:
while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment…
MRS KENNEDY’S CONTENTIONS
Mrs Kennedy contends that the decision made by the Respondent in relation to her primary claim and also her secondary claim should both be set aside, on the basis that she has suffered an injury as defined in the Act in relation to both claims.
Her reasons for contending this are set out in paragraphs 5 and 6 above
I also note that the Applicant is a person given to prolixity. This is reflected in the volume of documents lodged with the Tribunal and in the evidence she gave, which I considered to be lengthy and at times unclear. The Tribunal file contains numerous documents lodged by Mrs Kennedy, many of which are either repetitive or not relevant.
The Applicant in putting forward her case did not clearly distinguish between various versions of her documents. Those she especially wanted to rely on may be obvious to her but not so to others. She saw no need to differentiate between versions of documents so that only the latest or most relevant was put forward or relied upon if that was what she wanted.
COMCARE’S CONTENTIONS
The Respondent contends that both decisions are correct and should be affirmed. In relation to the primary claim, the Respondent accepts that the Applicant suffered an injury as per the Act (specifically, a disease within the first part of section 5A(1)(a) of the Act). However, the Respondent relies upon the latter part of section 5A(1) of the Act and argues that Mrs Kennedy is excluded in any event under the Act because the injury suffered by her was a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
In contrast, in relation to the secondary claim, the Respondent disputes Mrs Kennedy’s adjustment disorder with anxiety was aggravated by a meeting on 2 July 2012 with Mr Whelan and Mr Chapman.
RELEVANT WORKPLACE EVENTS LEADING TO CLAIMS
Mrs Kennedy’s primary claim arises out of her work with Medibank Private (Medibank) as does her secondary claim.
From about April 2011 the Applicant was involved in a competitive selection process for recruitment as a Business Analyst with Medibank (Mrs Kennedy referred to the position as a BA). According to Mrs Kennedy, she is an experienced business analyst with more than 10 to 15 years of work experience with several corporate giants. She also has some academic qualifications.
In September 2011 Mrs Kennedy was offered and accepted a permanent role with Medibank. In December 2011 she was assigned to the SimpliPHI project, with Mr Brett Adlam being the Lead Business Analyst on the project. Mr Adlam’s role in the project was to manage other Business Analysts and address performance expectations for Business Analysts over whom [he] had line management responsibilities. Mrs Kennedy was placed on the project by her managers, Mr Whelan and Mr Chapman. The project manager on the project was Ms Sara Wexler. Mr Whelan, Ms Chapman, Mr Adlam and Ms Wexler were Mrs Kennedy’s direct superiors on this project. In his Witness Statement (Exhibit R7), Mr Whelan described the project as being a learning and development opportunity for the Applicant, in the sense that it gave her knowledge of and exposure to Medibank’s business.
Mrs Kennedy resigned from her position at Medibank on or about 21 November 2013. She said she was ‘forced’ to resign. Overall, by her own admission, Mrs Kennedy’s employment at Medibank was not a happy time for her and was constituted on occasions by quarrel, conflict or disagreement. At times, she claims she was harassed and bullied.
Mrs Kennedy contends that the injury she suffered resulted from anxiety and stress. This was activated by Ms Wexler’s repeated unreasonable behaviour towards her between January–April 2012 and also by the lack of action and lack of response of Mr Whelan and Mr Chapman after having repeatedly escalated the issues to them both verbally and in writing.
Mrs Kennedy’s experiences at Medibank between April 2011 and November 2013 are set out in numerous emails, memos and timelines or chronologies which have been lodged with the Tribunal over the course of these proceedings. As I have described above, Mrs Kennedy has provided the Tribunal with an extensive number of documents which are comprehensive in volume and content in support of her claims. I should note that the sheer wealth of detail provided by the Applicant in support of her claims has, at times, failed to highlight to me the emphasis I should give to the particular issues in contention. That is, at times it has been difficult for me to determine the relevance, as well as the weight and importance I should give to particular points and not others.
In support of these observations, I note that in his report dated 30 September 2013, Dr Walton stated that Mrs Kennedy has tendencies towards over-inclusion of what to an outsider is peripheral detail which is partly reflected in her type-written notes she has prepared and is also present in her routine conversation.
Meetings between Mrs Kennedy and Ms Wexler
Nonetheless, in considering the documents, one particular issue of importance which emerges from the detail concerns Mrs Kennedy’s allegations in relation to her treatment by Ms Wexler. In her evidence, she stated that during a period in 2012, she was harassed by Ms Wexler. However, there is a discrepancy between the dates she contends that she was harassed: the Tribunal has heard evidence that the period was between January 2012 to July 2012, but also heard evidence that the period was between January to April 2012. I am unclear which date is correct.
Mrs Kennedy attested that, in her view, Ms Wexler was upset that [she] had been placed on her project for training and regarded her as a substandard resource because she had never worked on Medibank Core Business Processes before. This is of course in relation to the SimpliPHI project, of which Ms Wexler was Project Manager.
In her evidence to the Tribunal, Mrs Kennedy described herself as a friendly type of person and thus was perplexed by Ms Wexler’s treatment of her. Mrs Kennedy stated that she got the impression that Sara [Wexler] didn’t like me and didn’t consider me her kind of person. She considered that Ms Wexler was under great pressure and she was of the view that Ms Wexler didn’t have the skills to be able to manage a project of that size effectively. She further stated she felt like Ms Wexler treated her sometimes as if she was disabled mentally.
For example, Mrs Kennedy gave evidence that Ms Wexler appeared to be trying to catch me out all the time was so that she could blame me for something. According to Mrs Kennedy, Ms Wexler would do this by organising early morning meetings and if Mrs Kennedy was late (as she admits she was on one occasion but only by two minutes she says) Ms Wexler would cancel the meeting and send Mrs Kennedy an email saying that her conduct was unacceptable. According to Mrs Kennedy, Ms Wexler began to schedule weekly meetings with her from February to March 2012.
Mrs Kennedy contended that these meetings were not scheduled with any other project members. However, in the Investigation Report conducted by Ms Emily Welch (Workplace Relations Advisor, Medibank) on 25 October 2013, Ms Welch relevantly found that scrutinising work and regular checking of documents by Sara Wexler was not unique to the complainant. Rather, this was the style of the particular project manager across the group and micro-managing in and of itself does not constitute bullying. Furthermore, in giving her oral evidence during the hearing, Mrs Kennedy herself acknowledged that Ms Wexler was a person that in some ways treated everyone the same in that she was a bit obsessive compulsive, but she was worse with me.
In relation to the scheduling of individual meetings by Ms Wexler with Mrs Kennedy, the Investigation Report concluded that 1:1 meetings between the project manager and the complainant are not in and of themselves inappropriate, nor did Mrs Kennedy suggest any inappropriate behaviour [having] occurred during these meetings. Further, Ms Welch found no issue with this arrangement.
This seems to advance some kind of persecution theory on the part of Mrs Kennedy. Interestingly, this is consistent with the clinical notes of Dr Harrison, Mrs Kennedy’s general practitioner, which make reference to themes of persecution in Mrs Kennedy’s thoughts. Furthermore, Mrs Kennedy told the Tribunal that Ms Wexler’s behaviour, including engag[ing] in gossip and misrepresentation of her to other persons in the organisation, during various meetings and in corridors…distressed and intimidated her.
During meetings with her, Mrs Kennedy contended that Ms Wexler would have nothing to say and would just sit there and stare at me. Furthermore, according to Mrs Kennedy, Ms Wexler excessively monitored my work and she would sometimes examine the documents Mrs Kennedy was creating on a daily basis, and would adjust and readjust the format and layout when she says there was nothing wrong with it. Mrs Kennedy seems by this to be taking exception to Ms Wexler’s interventions despite her being the manager of the SimpliPHI project.
An incident concerning Ms Wexler and involving Mr Jason McIver (Ms Wexler’s manager) occurring in April 2012 is noted by Mrs Kennedy. She says she had made a complaint about Ms Wexler and had verbally escalated it to Mr Chapman. On three occasions, however, she says Mr McIver made fun of [her]. She says he went up to three people sitting near her and out of the blue and in a sarcastic way said: I don’t like what you have said, so I am going to put in a formal complaint about you. She said this was distressing to her. Moreover, Mrs Kennedy stated that it showed me that the confidentiality of my complaint had been compromised.
Meeting with Mr Whelan on 16 May 2012
During the hearing, Mrs Kennedy stated that she found Mr Whelan to be aggressive and rude in his meetings with her. In particular, she highlighted the meeting on 16 May 2012 where Mr Whelan slid a print- out of an email across the table to Mrs Kennedy, for her to peruse. She claimed that at approximately 3.00pm, she attended what she thought was her normal fortnightly catch up with Liam. Mrs Kennedy stated that she was unaware that this was a performance review process and the meeting invite did not indicate that either. She stated that as soon as [she] sat down, Mr Whelan slid a piece of paper across the table asking her to explain it. At one stage in evidence she indicated it was thrown across the table but she did not seem confident with that description of the event. It was in fact an email from Ms Wexler to Mrs Kennedy which Mr Brett Adlam somehow had obtained. It had on it a note: You’ve just got to see this.
In relation to Mr Whelan’s tone and behaviour during the meeting, Mrs Kennedy stated that it was aggressive, demanding and his action was not a collaborative one. She further told the Tribunal that Mr Whelan had behaved in a bullying manner during the meeting on 16 May 2012. This was, according to her, initiated by the manner in which she was handed the email by Mr Whelan, but continued with a lack of listening to [her] to try to explain to [Mr Whelan] that the issue was resolved. When I asked Mrs Kennedy to clarify her stance on this point during the hearing, she reiterated that in this particular instance, a lack of listening to her constituted bullying. However, despite her grievances about the meeting she stated that it was only a minor issue.
When this point was put to Mr Whelan in cross-examination, he stated that there was no reason why he would have been angry in the meeting on 16 May. Rather, he stated that he would have presented [Mrs Kennedy] with the email so that she could see the feedback and request [her] view of events. Moreover, as I mentioned earlier, Mr Whelan gave evidence that he had at some stage loaned Mrs Kennedy a book on how to deal with difficult people. He stated that he had asked Mrs Kennedy to read it and that they would subsequently have a chat about it. Mr Whelan further explained to the Tribunal that the purpose of this exercise was to allow Mrs Kennedy to improve her ability to identify particular people, their styles, mannerisms, character traits and how to deal with those kinds of people in your professional life.
Meeting on 2 July 2012
In his witness statement provided to the Tribunal (Exhibit R7), Mr Whelan stated that on or about 27 June 2012 he sought advice from Ms Juliet Vermeulen (People and Culture Division) in relation to the future management of Mrs Kennedy’s performance issues. Mr Whelan explained that he sought this advice as he believed that the informal coaching and discussions with Mrs Kennedy had so far been unsuccessful. In his witness statement provided to the Tribunal (Exhibit R8), Mr Chapman stated that following advice from Ms Vermeulen, he and Mr Whelan concluded that it would be prudent to enter into formal performance management of Mrs Kennedy. They decided that this would be done by organising a meeting with her, to outline [their] continuing concerns and notify her that she had failed to meet key performance indicators for the performance cycle. At the meeting, Mr Chapman and Mr Whelan agreed that they would also raise with Mrs Kennedy their concern that should her performance not return to expected levels that a formal performance management process could be instituted.
At the meeting, Mr Whelan and Mr Chapman raised the issue of Mrs Kennedy needing to seek clarification for tasks for which she was unsure of, as well as the timeframes to complete these tasks. Mr Chapman told the Tribunal that the SimpliPHI project was utilised as an example in this discussion to highlight a repeating theme. Further, Mr Whelan and Mr Chapman outlined a proposed 3 month review cycle with the Applicant involving the People and Culture Division. Mr Chapman explained to Mrs Kennedy that if her performance did not return to an appropriate standard, her employment may be terminated.
Looking to the future, Mr Chapman told the Tribunal that he and Mr Whelan also explained to Mrs Kennedy that based on Medibank’s concerns over her performance, they would need to be cautious as to the projects that [she] could be allocated to, in order to minimise the risk to Medibank of repeated underperformance. Consequently, Mr Whelan and Mr Chapman believed that it would be prudent to allocate Mrs Kennedy to tasks which were simpler and more straightforward in nature in the immediate future.
In her evidence, Mrs Kennedy described the meeting on 2 July as leaving her feeling distraught. She stated that as a result of it, she cried and cried and cried. Mrs Kennedy described the demeanour of Mr Chapman and Mr Whelan in that meeting as being of 2 angry men. She further stated that this meeting felt like an ambush. The room where the meeting was held was spinning and I felt sick and confused ---like I was trapped in a nightmare. Obviously this was a significant occasion for her and she said she remembered it well.
According to Mrs Kennedy, she was asked by Mr Chapman if she could tell him about her latest failure to deliver. She stated that she was unclear about what he was referring to and asked him to repeat his question three times. It became clear that Mr Chapman was referring to an estimate (which she considered she had delivered) and Mr Chapman said she had a history of not delivering and this was the latest example. I note that in his witness statement to the Tribunal, Mr Chapman denied beginning the meeting by asking the Applicant about her latest failure to deliver. Mrs Kennedy further described Mr Chapman then looking at Mr Whelan, as if proving a point to [the latter]. She stated that any explanation she gave fell on deaf ears.
Moreover, according to Mrs Kennedy both men went on to say that she had ruined [her] reputation at the highest levels of Medibank and had brought the whole BA practise into disrepute. She says she was told that this failure to deliver was the last in a long pattern of non-delivery and this would not be tolerated any longer. Staunchly, Mrs Kennedy contended that this was absolutely not the case and was a complete fabrication.
The Applicant further stated that she was told by Mr Whelan and Mr Chapman that she would be put on high watch for the next 3 months. Her work would be closely monitored and one slip would result in [her] being counselled.
Following the meeting, Mrs Kennedy stated that she felt a sense of total powerlessness, like there was no way to fight or exonerate myself. She believed that 3 levels of management were saying I was doing things I wasn’t and I felt there was nowhere I could turn. She felt like my world had caved in on me: she said she was too ashamed to tell her husband. The pain she felt, she stated, was palpable. Further, Mrs Kennedy described the 2 July meeting as feeling like emotional rape. She firmly believed that Justice was denied me [sic], in particular that it went against the laws of natural justice, even if I was guilty, which I was not. Additionally, Mrs Kennedy described the 2 July 2012 meeting as leaving her feeling that she was a battered wife… feeling trapped and depowered. This was so because she felt no one would believe me.
After this time the Applicant approached Ms Juliet Vermeulen who was her Human Resources representative, whom she told of her shame and embarrassment.
Meetings with Ms Vermeulen
In February 2013 Mrs Kennedy met with Ms Vermeulen, in which she found herself in a state of confusion. Her heart was pounding with grief and she was in tears. She stated that Ms Vermeulen appeared a little impatient. According to the Applicant’s notes, she was concerned that [if] I repeat something that I had told her on the last meeting, she interrupts and tells me she has heard it before and doesn’t need to know.
In March 2013 Mrs Kennedy approached Ms Vermeulen out of embarrassment. Mrs Kennedy was concerned that she would have a black mark against [her] because [she] wasn’t guilty. Mrs Kennedy stated that in this meeting, she felt like the wound was further exposed. She further stated that the sense of injustice escalated and the sense of impending doom and fear [also] escalated. Exactly what that wound was does not clearly emerge.
Moreover, at a further meeting with Ms Vermeulen in May 2013 Mrs Kennedy stated that Ms Vermeulen was quite angry and told her that she had wasted 6 weeks of her life on me. As a result of this meeting, Mrs Kennedy said she was left shaking and in tears. In her view, Ms Vermeulen had now become unjustly angry, aggressive and accusatory of me.
Exclusion from meetings
In addition to her grievances in relation to the meetings I have outlined above, Mrs Kennedy contends that her exclusion from other meetings concerning the SimpliPHI project also contributed to her injury. For example, in an email dated 20 March 2012 to Mr Whelan and carbon copied to Mr Adlam, Mrs Kennedy stated:
whilst I can appreciate that I don’t need to be across everything as different people have different things to work on, I am pretty well not invited to anything and am therefore across nothing. I am stumbling in my own little world and I feel like the disabled cousin that the family needs to hide in case I embarrass them.
Internal Investigation by Medibank
On or about 26 September 2012 Mrs Kennedy lodged a formal complaint of bullying and harassment with Medibank.
As I have mentioned above, an internal investigation was conducted by Ms Welch of Medibank. Ms Welch’s report, dated 25 October 2013 found that the conduct which Mrs Kennedy complained about did not in fact occur the way she described. The investigation also concluded that the conduct did not constitute conduct that breached any law, policy or procedure. On 28 October 2013 Mrs Kennedy was informed of the outcome of that internal review in a meeting. Significantly, the report also concluded that none of her allegations were probable, but that all the claims of her aggressors were.
MEDICAL, PSYCHIATRIC AND PSYCHOLOGICAL EXAMINATIONS
Dr Caitlin Harrison, general practitioner
From 19 June 2012 Mrs Kennedy attended Dr Caitlin Harrison of Wantirna Medical Clinic for stress related conditions. Clinical notes of Dr Harrison record that on that date she presented to the clinic with physical symptoms and feeling not herself. Additionally, Mrs Kennedy reported some depressive and anxiety symptoms and being under stress at work. On 27 June 2012 Dr Harrison reported that Mrs Kennedy experienced an improvement in her symptoms following a week off work.
On 8 May 2013 Mrs Kennedy attended an extended consultation with Dr Harrison at her clinic, in relation to her complaints of incidents of bullying at work from March or April 2012. Mrs Kennedy reported of on-going false accusations from boss and his boss. She further reported feelings of anger and a tendency to react. Dr Harrison’s notes from that consultation: revealed that Mrs Kennedy has Extensive recall but [is] interruptible. As I have outlined above, in relation to Mrs Kennedy’s thought patterns, Dr Harrison noted themes of persecution being apparent. At that consultation, Dr Harrison deemed Mrs Kennedy to be unfit for duties and diagnosed her with Generalised Anxiety Disorder or Major Depressive Episode.
In her report dated 4 November 2013 Dr Harrison stated that, in her view, Mrs Kennedy continued to suffer from Adjustment Disorder with anxiety.
Ms Kerry Genovese, consulting psychologist
In her report dated 11 July 2013 Ms Kerry Genovese, consultant psychologist, diagnosed Mrs Kennedy with adjustment disorder with anxiety. Furthermore, she reported that Mrs Kennedy’s depressive symptoms have abated somewhat but she continues to experience heightened arousal and anxiety and anxiety specific to her work situation.
In a further report dated 24 November 2013 Ms Genovese noted that she had seen Mrs Kennedy professionally on 11 occasions to date, the first occasion being on 6 June 2013. Mrs Kennedy was referred to Ms Genovese by Dr Harrison on 3 June 2013. In her report, Ms Genovese noted that Mrs Kennedy continues to experience anxiety and periods of depressive reaction associated with past and current workplace events and that she remains fixed in her belief that her work performance was unfairly judged and that she was unjustly and inappropriately treated by management.
Dr Lester Walton, consultant psychiatrist
On 11 September 2014 Dr Lester Walton, consultant psychiatrist, examined Mrs Kennedy. A report dated 30 September 2014 has been provided to the Tribunal by the Respondent. In that report, Dr Walton reported that Mrs Kennedy was not suffering from a diagnosable psychiatric condition. He stated that he was not in a position to dispute the diagnosis made by the treating psychologist of adjustment disorder with anxiety in the sense that that may have been a valid diagnosis previously but if so the condition has now resolved.
In commenting on Mrs Kennedy’s condition being causally related to her employment, Dr Walton noted that it was certainly her perception that a particular project manager, her manager and a supervising manager, as well as an officer in Human Resources treated her unfairly and unreasonably. The mere perception of that would be sufficient to induce clinically significant anxiety regardless of the objective facts. In Dr Walton’s opinion, the onset of Mrs Kennedy’s adjustment disorder occurred around July 2012.
CONSIDERATION
There are two clear issues which arise for determination. The first is whether the Applicant satisfies section 14 of the Act in respect of her primary claim and/or in respect of her secondary claim. In the event Mrs Kennedy does satisfy section 14 of the Act, the next issue for me to consider is whether she is excluded under section 5A (1) of the Act on the basis that her injuries were the result of reasonable administrative action taken in a reasonable manner in relation to her employment.
I have seen and heard Mrs Kennedy give evidence and I have heard her explanations on various points. In considering Mrs Kennedy’s contentions, I note that I should exercise care in taking her evidence at face value. My reason for exercising caution is that I believe it is reasonable to conclude that Mrs Kennedy is given to overstatement and that her evidence is prone to amplification. In arriving at this conclusion, I refer to the various expressions that Mrs Kennedy has used to describe the workplace events which led to her claims. These expressions include phrases such as impending doom; room spinning; disabled mentally; cried and cried and cried; trapped in a nightmare; palpable pain; battered wife; and emotional rape. Although I can appreciate that these phrases are removed from their context, nonetheless I consider that they are intended to colour or to give emphasis to Mrs Kennedy’s contentions. I therefore conclude that I should take her tendency to overstate into account when assessing her evidence, particularly considering that allegations of harassment and bullying are very serious allegations these days to make of anyone in business.
PRIMARY CLAIM
ENTITLEMENT TO COMPENSATION IN RESPECT OF AN INJURY UNDER SECTION 14(1) OF THE ACT
As I have outlined above, pursuant to section 14(1) of the Act, the Respondent is liable to pay compensation with respect to an injury suffered by an employee if the injury results in death, incapacity for work or impairment. Therefore, the first step is to determine whether Mrs Kennedy has suffered an injury or disease under the Act.
Has Mrs Kennedy suffered an injury or disease?
Mrs Kennedy’s primary claim is for Depression, anxiety and stress. I accept the date of this claim as being 19 June 2012 when she first sought medical treatment, as per the clinical notes of Dr Harrison.
As per the first part of section 5A(1)(a) and section 5B(1)(a) of the Act, I am satisfied that Mrs Kennedy suffered an injury, specifically a disease in the form of an ailment suffered. I refer once again to the reports of Dr Harrison and also to the report of Ms Genovese, who spoke of Ms Kennedy’s presentation on 13 June 2012, her reported symptomatic reactions over time and her test results (on the Depression Anxiety and Stress Scale (DASS-21)) as all indicating a diagnosis of Adjustment Disorder with Anxiety (DSM-IV-TR, Code 309.24). Ms Genovese was clear that her presentation in counselling sessions indicated continuing anxiety and agitation related to past events in the workplace.
However, as per section 5B(1)(a) of the Act, I must also be satisfied that Mrs Kennedy suffered an injury, in the form of a disease, in that it was an ailment suffered by her that was contributed to, to a significant degree, by her employment with Medibank.
Was Mrs Kennedy’s injury contributed to, to a significant degree, by her employment?
I am not satisfied that Mrs Kennedy’s mental condition was significantly contributed to by her work with Medicare. That is to say, I am not satisfied that her workplace conflicts contributed to her mental condition to a degree that was substantially more than material, as per section 5B(3).
I regard Mrs Kennedy as a person with certain personal issues, like all of us. I am not qualified to go further than this. I consider that she has a clear tendency to be quite sensitive to criticism, particularly in the workplace. In my view, this tendency manifests itself in her various reactions to workplace conflict. It is this sensitivity which has been the substantial contributor to her mental condition. I note again Dr Harrison’s reference to themes of persecution in Mrs Kennedy’s thoughts.
Moreover, I consider that Mrs Kennedy’s proclivity to sensitivity makes her a person very vulnerable when criticised, particularly by authority figures or superiors. For example, she did not want to look in the direction of Mr Whelan or Mr Chapman while they were giving evidence. I find this to be most unusual. Furthermore, in relation to meetings with Ms Wexler, Mrs Kennedy was concerned that Ms Wexler might not like her and she noted how she stared at her. I mention also that she took particular note of how Mr Whelan looked at Mr Chapman at the 2 July meeting. Having regard to this, I consider that Mrs Kennedy, because of her proclivity to sensitivity, is more inclined to perceive actions as being harsh or unfair or directed at her have views such as these. In turn, this gives rise to feelings which are amplified by Mrs Kennedy. In addition to amplifying her feelings, I consider that Mrs Kennedy likes to dwell on them and to draw attention to them. For example, by emphasising the fact that she cried and cried and cried during her 2 July meeting with Mr Whelan and Mr Chapman.
Again, I refer to Dr Walton’s opinion, in that it was Mrs Kennedy’s perception that Mrs Kennedy was being treated unfairly and unreasonably. That perception itself would be sufficient to induce clinically significant anxiety. However, as Dr Walton further noted, the inducement of anxiety based on Mrs Kennedy’s perception of events taking place occurred independently of the objective facts. As such, as regards the legal requirements in determining whether Mrs Kennedy’s injury was contributed to, to a significant degree, by her employment, I am not satisfied that a causal relationship is made out.
In arriving at this conclusion, I prefer the opinion of Dr Walton to that of Ms Genovese. In doing so I have taken into account the field of expertise and qualifications of Dr Walton and given that he is a consultant psychiatrist, I place greater emphasis on his report,
In reality and possibly in various ways, I consider that Mrs Kennedy simply unsuited to working in the pressured SimpliPHI environment. In other words, her very job itself may have contributed to her feelings of anxiety.
In my view, although I am satisfied Mrs Kennedy has suffered an injury, specifically a disease in the form of an ailment suffered, she does not specifically meet the definition of having suffered from a disease, of the kind required by section 5B(1), because her injury was not contributed to, to a significant degree, by her employment. In the alternative, if I have reached the incorrect conclusion on this point, Mrs Kennedy nonetheless does not in my view meet the definition of injury under section 5A(1), for the reason that it excludes an injury suffered as a result of reasonable administrative action taken in a reasonable manner in relation to her employment.
SECONDARY CLAIM
Was Mrs Kennedy’s aggravation of an injury contributed to, to a significant degree, by her employment?
The second claim of Mrs Kennedy is for aggravation of her Adjustment Disorder with Anxiety. I regard the date of this claim as being 17 July 2012 when she first sought medical treatment for it. However, I have been unable to locate that date in Dr Harrison’s clinical notes.
A relevant distinction to make in this area is between a condition which is made worse and a condition which only becomes worse. Only the former is within the jurisdiction. See Comcare v Reardon [2015] FCA 1166 at [35].
In my view, the events of 2 July 2012 did not make Mrs Kennedy’s condition worse. Her condition I consider became worse because of those events or because of other things in her life. However, I accept that she was reduced to tears and felt upset. That to my mind is neither a new injury nor an aggravation of her old injury.
Moreover, Mrs Kennedy was clearly suffering from an Adjustment Disorder with Anxiety at that time. I consider that her condition arguably did only become worse because of the meeting that took place dealing with complaints about her. As I have discussed above, I consider that Mrs Kennedy was sensitive to criticism, especially by authority figures or superiors.
However, it is relevant to note that it was a fortnight or so before Mrs Kennedy sought medical advice. She did not do so immediately or soon afterwards. I note also that it was not until 26 September 2013, some 14 months later, that she brought proceedings in respect of her second claim.
I cannot regard the evidence as showing that as a result of the meeting there was an aggravation of her condition in the sense of an acceleration or recurrence. Nothing in my view shows an acceleration or recurrence specifically because of that meeting.
I do not therefore regard her suffering any compensable injury by way of an aggravation on the second claim.
In the same way I have found with her primary claim, I consider that Mrs Kennedy does not satisfy the definition of disease as I do not regard her injury as having been contributed to, to a significant degree, by her employment with Medibank. Again, in the event that if I have reached the incorrect conclusion with regards to this point, Mrs Kennedy nonetheless does not meet the condition on the definition of injury under section 5A(1) as her injuries were the result of reasonable administrative action taken in a reasonable manner in relation to her employment.
SECTION 5A
Were Mrs Kennedy’s injuries the result of reasonable administrative action taken in a reasonable manner in relation to her employment?
Section 5A(1) of the Act provides that the definition of “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.
The Full Court of the Federal Court in Martin v Comcare (2015) 238 FCR 373 at [70] set out the five limbs which need to be satisfied to determine whether a compensable injury, disease or aggravation suffered by an employee which is contributed to, to a significant degree, by the employee’s employment is within the exclusion in s 5A of the Act:
(a)whether the relevant action is administrative action;
(b)whether the administrative action was taken in respect of the employee’s employment;
(c)whether the disease, injury or aggravation is suffered as a result of the administrative action;
(d)whether the action is reasonable administrative action; and
(e)whether the reasonable administrative action is taken in a reasonable manner.
I should note that the decision of the Full Court was successfully appealed to the High Court in Comcare v Martin [2016] HCA 43. However, the subject matter of that appeal by Comcare was in relation to Murphy J’s interpretation of the third limb of the test set out above: namely, whether he had erred in applying a common sense approach to the causation requirement. Comcare also argued that Murphy J had gone beyond the role of the Federal Court in finding fault with the original Tribunal’s fact finding. Nonetheless, even with these qualifications taken into account, I note that the test above still stands.
I am clearly of the view that Mrs Kennedy is excluded from recovery by section 5A(1) of the Act, even if I am incorrect in concluding that neither her primary claim nor her secondary claim is within the purview of the Act. That is, I regard Mrs Kennedy’s primary claim as being excluded by section 5A(1) because it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. I note also that in relation to making submissions on the exclusionary provision, I asked Mrs Kennedy on 3 occasions during the hearing to specifically address section 5A in her final written submissions but she failed to do so, except to only a small extent.
Primary claim
Was the relevant action an administrative action?
I am quite satisfied that the injury suffered by Mrs Kennedy was brought on as a result of administrative action. I am referring to various meetings held with Mr Whelan over an extended period dating from 18 April 2012 and held also with Mr Whelan and Mr Chapman on 2 July 2012. In my view, each of these meetings constituted administrative action, which includes a reasonable appraisal of an employee’s performance (as per section 5A(2)(a)) and reasonable counselling action, even of an informal nature (as per section 5A(2)(b)). I note that administrative action is defined only inclusively in section 5A(2) in any event.
Moreover, the relevant case law draws a clear distinction between actions which are administrative and those which are operational in nature. In Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 Gray J in the Full Federal Court stated:
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.
In WorkCover Corporation (SA) v Summers (1995) 65 SASR 243, Doyle CJ in the Full Court of the Supreme Court of South Australia articulated (at 247) that an administrative action is constituted by something other than a mere instruction or requirement that the worker perform her duties.
In Re Ferguson and Commonwealth Bank of Australia [2012] AATA 718 the Applicant was employed as a Customer Service Specialist for the Respondent. She made a claim for major depressive disorder, which she alleged she had developed as a result of bullying and harassment at work. She alleged that she had been subjected to bullying and harassment from her supervisor during four meetings, whereby the Applicant was given feedback in relation to her perceived under-performance. The Tribunal held that the Respondent was not liable to compensate the Applicant, as the feedback which had been given in the meetings constituted reasonable administrative action taken in a reasonable manner.
In arriving at this conclusion, the Tribunal in Ferguson considered that the Respondent had cause to talk to the Applicant about how she had been performing her job. Specifically, during the meetings, Ms Ferguson’s supervisor had drawn attention to something the Applicant needed to do better or differently (at [83]). Moreover, Ms Ferguson’s supervisor was not merely imparting information, or giving directions or instructions, about what the job involved. It was something outside the actual job she was required to do. It was not merely “operational”.
Analogously, in an email from Mr Whelan to Mrs Kennedy dated 18 May 2012, in which he addressed her areas for improvement, Mr Whelan pinpointed specific issues in relation to Mrs Kennedy’s performance. For example, in relation to the meeting on 16 May Mr Whelan raised the issue of The no. of iterations & time taken to complete the System Requirements Documents. In discussing this issue, he highlighted specific actions and behaviours Mrs Kennedy could adopt to improve her efficiency in meeting employer expectations. For instance, he stated that as soon as you become aware that things have changed, you must flag this so you can renegotiate what it is that you are accountable for delivering and what may/may not be unrealistic based on prior expectations. Further, Mr Whelan emphasised the need for Mrs Kennedy to discuss/negotiate with the Lead BA an appropriate amount of time to deliver… if she is being given things that cannot be achieved in the timeframes that have been set.
Applying Ferguson to the current facts, there are clear analogies which can be drawn, in that Mrs Kennedy’s supervisor had drawn attention to something she needed to do better or differently. Therefore, analogously, the feedback which had been given in the meetings constituted reasonable administrative action taken in a reasonable manner.
Moreover, I accept the Respondent’s submission that the meetings between Mr Whelan, Mr Chapman and Mrs Kennedy were directed at the subject of Mrs Kennedy’s performance, including her timeliness in her doing her work, the accuracy of her work and whether her work met what was expected of her. These were not meetings devoted to the operations of the organisation.
Rather, these are and were all matters properly to be enquired of by an employer’s managers. An employer is entitled to raise with an employee the standard of the employee’s work and to propose supervision, even if that supervision is to be close or monitored. These actions do not constitute harassment or bullying. Rather, they are legitimate avenues open to be taken by managers to ensure employees are performing their duties correctly according to the required standard.
Was the action taken in respect of Mrs Kennedy’s employment?
I am also satisfied these meetings were all conducted in respect of Mrs Kennedy’s employment and not in respect of anything else. I have no doubt about this having seen and heard the witnesses. They were not conducted in the context of a campaign of harassment or bullying of Mrs Kennedy. Nor were they conducted with a view to forcing her to resign. Furthermore, there was no ulterior motive for conducting these meetings. I acknowledge though that after some time Mrs Kennedy may have become unpopular in the workplace or may have been an unwelcome presence on the SimpliPHI project.
Were the injuries suffered by Mrs Kennedy a result of the administrative action?
I am also satisfied that Mrs Kennedy suffered injury, to the extent it was due to work, as a result of administrative action. This must be assessed considering the question of causation.
In Lim v Comcare [2017] FCAFC 64 the Full Federal Court considered the approach taken by the Tribunal in Martin in its application of the causation requirement in s 5A, when read in conjunction with s 5B of the Act. Kenny, Tracey and Bromberg JJ considered that, having regard to the High Court decision in Martin the Tribunal in that matter had erred in its application of s 5A of the Act.
The court held that, analogous to the circumstances in Martin, only employment-related factors were identified as contributing to Dr Lim’s ailment (at [41]). Therefore, the court considered, in applying Martin, to satisfy the causation requirement in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken (at [41]).
Section 5A(1) of the Act does not require the administrative action to be the sole causational factor in any injury being suffered. As noted by the Full Federal Court in Hart v Comcare (2005) 145 FCR 29, s 5A(1) provides that if a disease or injury which would otherwise fall within the definition ("any such") is one which answers a description …, the disease or injury is not an "injury" as defined. An injury may be said to have a number of causes, however what I am required to find is whether it is an injury or disease suffered as a result of reasonable administrative action taken in a reasonable manner.
The principles in Lim and Martin clearly apply at the present day. It is clear that the Tribunal accepts that Mrs Kennedy would not have suffered Depression, anxiety and stress if the meetings with Ms Wexler, with Mr Whelan on 16 May 2012, with Mr Whelan and Mr Chapman on 2 July 2012 and her exclusion from meetings had not taken place. I am therefore satisfied that Ms Kennedy’s condition is a disease or injury suffered as a result of administrative action, as I am satisfied that the causation requirement linking the condition and the alleged administrative action is met.
Was the action reasonable and reasonably taken?
I am also satisfied that the administrative action taken was reasonable and was taken in a reasonable manner.
There is nothing in the evidence in these proceedings which satisfies me that the administrative action taken in Mrs Kennedy’s case was anything other than reasonable. Over a series of meetings (on 18 April 2012; 16 May 2012; 23 May 2012; 31 May 2012; 8 June 2012; 14 June 2012; and 2 July 2012) between Mrs Kennedy and Mr Whelan a number of meetings in relation to her carrying out of her duties were held or conducted. Their subject was her performance in her job, including timeliness of her delivery. During the hearing, Mr Whelan told the Tribunal that Mrs Kennedy was falling short of performance expectations and that she had failed to meet timeframes. The discussions between Mrs Kennedy, Mr Whelan and Mr Chapman had specifically addressed this issue.
In relation to the meeting on 2 July 2012, Mrs Kennedy told the Tribunal in her oral evidence that she had cried quite a lot and that despite this, Mr Whelan had continued asking questions of her. When asked about this in cross-examination, Mr Whelan stated that although he could not recall whether Mrs Kennedy had been crying during the meeting, he wouldn’t press an issue and would have offered a break, some tissues or water if she had indeed been crying. I accept what Mr Whelan said on this.
Email exchange between Mr Whelan and Mrs Kennedy on 18 and 21 May 2012
Furthermore, in considering the exchange of emails between Mrs Kennedy and Mr Whelan on 18 and 21 May 2012, it is clear that Medibank was working in a constructive and supportive manner with the Applicant to try and improve her work performance. On 18 May 2012 Mr Whelan sent Mrs Kennedy an email to reiterate the points raised with her during the 16 May meeting. The subject line of that email was titled 15 May – 1:2:1 catch-up discussion & feedback (Mr Whelan later clarified that the date which appears in the subject line is incorrect, it should read 16 May).
The email was divided into four parts and headed: What’s going well (addressing Mrs Kennedy’s strengths in her performance), Things we explored/discussed (addressing the key points discussed during the 16 May meeting), Needs attention! (addressing Mrs Kennedy’s areas for improvement in her performance) and General.
In addressing her strengths as a Medibank employee, the email set out Mrs Kennedy’s efforts to actively engage with stakeholders in a collaborative manner. It also highlighted her positive approach and acceptance of feedback provided during engagements. I should also note that in relation to the strengths in her performance, the 18 May email from Mr Whelan specifically encouraged Mrs Kennedy to Keep this up!. In addition to this, Mr Whelan assured Mrs Kennedy that he is confident that if we work together that we can resolve this. He stated that he would be organising a weekly catch-up to discuss the contents of the email as well as how Mrs Kennedy feel[s] [she] is going taken on this feedback as well as providing any additional support [she] may need.
I note also that Ms Welch’s Investigation Report of 25 October 2013 found that Mr Whelan’s email of 18 May 2012 explicitly acknowledges the complainant’s explanations of why performance objectives were not met. Moreover, Ms Welch found that there was no language in this email to suggest that the performance issues were petty and untrue.
In her reply to Mr Whelan on 21 May 2012, Mrs Kennedy wrote an extensive email addressing the specific points which Mr Whelan had raised in detail. I consider that in the language and tone of her response, Mrs Kennedy was largely unreceptive to the feedback which Mr Whelan had provided her in his email on 18 May.
Moreover, in her written submissions lodged with the Tribunal on 19 September 2016 Mrs Kennedy stated that following the meeting of the 16th May 2012, Mr Whelan did not bring any issues of non-performance up to me, prior to 2nd July 2012. However, as I have articulated above, in particular with reference to the email dated 18 May 2012 from Mr Whelan to the Applicant, this is simply not the case. Further, Mrs Kennedy submitted that The Respondent and Mr Whelan would like you to believe that there were performance issues, but there was not, not even one. Again, in light of my comments above, this is simply inaccurate.
As I have outlined above, it is true that during these meetings there was a repetition of certain themes of performance but it is possible that Mrs Kennedy was simply not getting the message and consequently there was a need to repeat things to her. This, in my view, does not constitute harassment or bullying. It is simply explaining to an employee how the employer’s expectations are to be met. When repeated, it is only a reinforcement of a message sought to be conveyed. Having seen and heard Mrs Kennedy give evidence, I am satisfied there could often be a need to repeat things to her, in that on occasions, she does not appear to have a clear understanding of what is being said.
Additionally, I heard evidence from both Mr Whelan and Mr Chapman and in my view, nothing said by them to Mrs Kennedy was anything other than reasonable. Their conduct in meetings with Mrs Kennedy was also reasonable. I bear in mind as well that in my view Mrs Kennedy is clearly given to amplification and has a clear tendency as I have said to be less receptive to criticism than perhaps another employee would be in the same circumstances. Even delivering a message in a raised voice to an employee does not of itself constitute bullying. Sometimes a loud voice is needed to drive a point home. However, a loud voice alone does not constitute bullying or harassing behaviour. It is dependent on the context and surrounding circumstances within which it occurs.
Equally, I am satisfied that Ms Wexler’s conduct is not open to challenge on the ground of a lack of reasonableness in the actions she took or proposed to take in relation to Mrs Kennedy. Nor do her actions constitute harassment or bullying merely out of her staring at Mrs Kennedy at a meeting. Again, I note the capacity of Mrs Kennedy to amplify certain events. Further, I note once again the theme of persecution referred to by Dr Harrison in her notes.
I am therefore satisfied that the administrative action taken, which is the subject matter of Mrs Kennedy’s claim, was reasonable.
At the same time, I am satisfied that the action was taken in a reasonable manner. It seems clear to me on the evidence that management taking administrative action made points to her outlining or specifying expectations and requirements in a reasonable way, as I have described above. Such action was not carried out in other than a reasonable manner by being made firmly or by being made by repetition. I should also note once more that although Mr Whelan acknowledged to the Tribunal that the discussions between him and Mrs Kennedy were characterised to a certain extent by a degree of repetition, he qualified this by stating that this was a consequence of the same issues continuing to arise with the Applicant. As I have elucidated above, the meetings between the Applicant and Mr Whelan were held for the purpose of improving the Applicant’s performance. However, Mrs Kennedy failed to accept or act upon the feedback given to her. Hence, Mr Whelan was required to repeat feedback to Mrs Kennedy on more than one occasion.
Nonetheless, in taking administrative action the employer is allowed to make a mistake. For example, it may be wrongly concluded that an instruction must be repeated more than once, when in reality it needs no repetition at all or only needs to be repeated once. Furthermore, an administrative action taken in a firm manner does not render it unreasonable. In some circumstances, adopting a firm approach assists the employee in understanding exactly where they stand in relation to what they must do to meet employer expectations. I also highlight the fact is that Mrs Kennedy was an employee and was not in a position to dictate to either Ms Wexler, Mr Whelan or Mr Chapman how they should respond to her in her case. Rather, they were all superiors of Mrs Kennedy and were in a position to issue orders and make requirements known.
Furthermore, Mrs Kennedy’s description of the incidents above as being incidents of harassment or bullying were in my view merely incidents of a stressful nature arising in the workplace. That is to say they were no different to other stressful incidents of a similar nature in the workplace arising elsewhere across the nation, probably on a daily basis. They were, and are, part of the cut and thrust of daily living and working in close proximity to others.
During the hearing, Mrs Kennedy lodged with the Tribunal a Guide for Preventing and Responding to Workplace Bullying, prepared by Safe Work Australia. She also made submissions with regard to the definition of bullying pursuant to the Fair Work Act 2009 (Cth) and its applicability to the facts of her case. I noted that Guide and read that definition. However, it is of no assistance to point to definitions of bullying in the Fair Work Act or other publications. They are not determinative in this Tribunal. I must have regard to the specific facts at hand to determine whether a person has been bullied or not.
In my view, no facts supported Mrs Kennedy’s bullying claims in these proceedings. I am also of the view that the language Mrs Kennedy chose to describe the facts she alleged to have given rise to her claims is amplified by her to a certain degree. I have elaborated on this above. However, I reiterate this point to draw attention to the fact that this affects how I consider Mrs Kennedy’s claims.
I also consider that the evidence of Mrs Kennedy indicates that she is not comfortable in the presence of authority figures. She thinks about what she should have said and done after conflict with an authority figure. This is illustrated in an explanatory email she sent to herself at night,
Being uncomfortable in the presence of an authority figure is not uncommon. But it is not bullying of itself. Many people often feel that way on a daily basis, but would not claim that they were being bullied.
Moreover, managers in a workplace are entitled to take up matters of concern with employees without being exposed to accusations of bullying. At one point during the hearing, Mrs Kennedy indicated that she believed she was being bullied by Mr Whelan during a meeting because he did not agree with her despite the fact that [she] had a reasonable explanation. She further stated that she had disagreed with Mr Whelan on that occasion because it’s the truth. Moreover, Mrs Kennedy contended that it [was] unreasonable for [Mr Whelan] to ask for an explanation and then not accept the explanation that’s given, despite actual proof. I consider Mrs Kennedy’s contentions to be incorrect. In relation to her meetings with Ms Wexler, Mrs Kennedy claimed wrongful conduct when in my view all Ms Wexler was doing was exercising powers belonging to her position as Project Manager. Having considered all of the facts, in no sense would I view Ms Wexler as having intended to give Mrs Kennedy an autonomous role in her work on the SimplyPHI project. Nor would I consider that Ms Wexler intended Mrs Kennedy to not be liable to be supervised, corrected or overseen.
Having seen and heard Mrs Kennedy’s former managers give evidence, I was not satisfied in any way that they are persons who would engage in bullying conduct. I find that their actions were reasonable administrative action.
For all of these reasons I am satisfied that the Applicant’s primary claim is excluded by section 5A(1) of the Act.
SECONDARY CLAIM
I am also satisfied the second claim is excluded by section 5A(1) of the Act, even if I am incorrect in concluding that the secondary claim is outside the Act.
This second claim relates to the meeting on 2 July 2012 when Mrs Kennedy says she was confronted by 2 angry men, namely Mr Whelan and Mr Chapman. By Mrs Kennedy’s account, the meeting was confronting. However, the Act does not prevent confronting meetings from taking place. Nor does it prevent the review by 2 managers together of an employees’ work performance. Meetings are a legitimate area in which an employer may take up complaints about an employee and review their performance.
Considering the materials in the case, I am satisfied that the meeting on 2 July is well within the scope of section 5A(1). I view the statements of both Mr Whelan and Mr Chapman to Mrs Kennedy as constituting administrative action. I refer to and rely upon sections 5A(2) (a) and (b) of the Act in particular. I also consider that such action was in respect of Mrs Kennedy’s employment. Furthermore. the actions of both Mr Whelan and Mr Chapman in my view constitute administrative action that was reasonable.
Moreover I cannot see that the action was taken otherwise than in a reasonable manner. It seems evident that both Mr Whelan and Mr Chapman may have been frustrated at the time with Mrs Kennedy and they therefore approached her in a direct and forthright manner taking up their concerns. This does not constitute harassment or bullying in my view on any reasonable analysis. The law does not make it illegal to be frustrated and to indicate that by language. It is not bullying for an employer to specify plainly and firmly what requirements must be met or have not been met by an employee. It is not harassment or bullying for the employer to be specific about its needs and to make those known to an employee in no uncertain terms.
This, in my view happens to be an incident in the employer/employee relationship routinely occurring in workplaces throughout the country on a daily basis. Mrs Kennedy can therefore have no serious or reasonable ground for complaint in that regard. The workplace is not always smooth sailing but from this fact it cannot be inferred that an employer’s disagreeable conduct must be bullying.
Employers must have the capacity to make their needs known to employees and it must be possible for an employer to stipulate that those needs are not optional to the employee. If in the case of some employees the needs, in order to be made known, must be repeated then that in my view is simply a case of the employer ensuring its employee understands what must be done to satisfactorily perform at work.
Mrs Kennedy spoke in terms of feeling she had undergone emotional rape in or as a result of the meeting on 2 July 2012and that she was left crying and crying and crying. However, as I have stated above, I see this as an amplification of the events which took place at the 2 July meeting on her part. Mrs Kennedy was subjected to close scrutiny by managers and persons in authority and, rightly or wrongly, she was regarded as having failed to live up to performance expectations. She may take exception to that but that fact does not constitute bullying or harassment. More to the point though, it is conduct within and not beyond the scope of section 5A(1) of the Act.
CONCLUSION
For the reasons I have given the decisions under review in both proceedings must be affirmed.
I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
[sgd]................................................
Associate
Dated 11 August 2017
Date of hearing 16-18 December 2015 & 22 July 2016 Applicant In person
Advocate for the Respondent Ms Ashlee Briffa and Ms Peta Heffernan Solicitors for the Respondent
Counsel for the Respondent
Australian Government Solicitor
Ms Cathy Dowsett
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