Kerrie Hall and Comcare
[2014] AATA 673
•29 May 2014
[2014] AATA 673
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0626
Re
Kerrie Hall
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 29 May 2014 Date of written reasons 15 September 2014 Place Sydney The decision under review is affirmed.
....................[SGD]....................................................
Senior Member A K Britton
CATCHWORDS
COMPENSATION — Commonwealth employees — Psychological injury — Adjustment disorder — Whether the injury was contributed to, to a significant degree, by the employee’s employment by the Commonwealth — Whether the injury was a result of reasonable administrative action taken in a reasonable manner — Decision affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 5A
Administrative Appeals Tribunal Act 1975 (Cth) s 37REASONS FOR DECISION
Senior Member A K Britton
15 September 2014
EDITED EXTRACT OF TRANSCRIPT OF PROCEEDINGS
Public servant Kerrie Hall seeks review of a decision made by Comcare to refuse to accept liability under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of a claimed injury, namely, an adjustment disorder. Comcare accepted that Ms Hall's adjustment disorder was contributed to, to a significant degree, by her employment with the Department of Immigration and Citizenship (DIAC) but found that it was “suffered as a result of reasonable administrative action”, namely, the decision not to appoint her to the Executive Level 1 (EL1) position, for which she applied in 2011. In these reasons I will refer to that position as the "disputed position". Comcare decided by the operation of section 5A of the Act, Ms Hall had not suffered an “injury” and was therefore not entitled to compensation under the Act.
Ms Hall claims, and I accept, that her adjustment disorder resulted from a number of factors, including working in the stressful environment of Villawood Detention Centre. She concedes, however, that one of the causes of her adjustment disorder was her failure to be appointed to the disputed position. Having carefully reviewed all of the evidence, including the medical evidence, I believe that concession to be properly made.
Whether the decision made by Comcare to refuse to accept liability for Ms Hall’s adjustment disorder is the correct or preferable decision, turns on two main issues, namely, whether:
(i) the decision not to appoint Ms Hall to the disputed position, constitutes reasonable administrative action, and
(ii) if so, was that decision or action taken in a reasonable manner.
Ms Hall contends that the decision was neither reasonable nor taken in a reasonable manner. The gravamen of her complaint is that the decision was infected by disability discrimination and a lack of transparency, namely the purported undisclosed requirement that the successful candidate be a NSW-based DIAC employee.
Much evidence was given about the different treatment alleged to have been afforded to so-called “Canberra-based” and “NSW-based” DIAC staff. The evidence indicates DIAC staff based at Villawood were classified as either NSW or Canberra-based: the former reported to DIAC’s NSW head office, the latter to DIAC’s office in Canberra. At all relevant times Ms Hall was classified as Canberra-based.
Background facts
Ms Hall suffers from lupus and a number of other autoimmune conditions. As a consequence, she experiences mobility problems and sometimes found it difficult to traverse the uneven terrain of Villawood Detention Centre. In addition, at times she tires easily and is sensitive to light. Lupus is a progressive condition.
Ms Hall commenced employment as a Client Service Officer at Villawood Detention Centre in 2007. Her substantive position was as an APS 6.
In the four years prior to being interviewed for the disputed position in 2011, on seven separate occasions Ms Hall had been appointed — to use the jargon of the public service — to “act up” to an EL1 position, the grade immediately above that held by Ms Hall. Ms Hall acted as an EL1 for a total of approximately two years; the longest period being for about eight months. There is no evidence to contradict Ms Hall's claim that the work she performed as an EL1 was consistently of a high standard and she never received any unfavourable reports from either her managers or other staff.
Ms Karen Van Raak was Ms Hall’s immediate supervisor throughout 2010 and 2011. She testified that she had assessed Ms Hall as suitable for promotion, and, in her opinion, Ms Hall was very capable. In these proceedings Ms Van Raak stated, "[Ms Hall] never let me down”. She and Ms Hall agree that, at least up until the time the interviews for the disputed position were held, they enjoyed a good working relationship.
Ms Hall considers a couple of events that pre-dated the interviews for the disputed position relevant to the assessment of the reasonableness of the decision not to appoint her to that position. In March 2011, an acting EL1 position became available in the section where Ms Hall worked. She was told by Ms Van Raak that while she had no issue with her work, on this occasion she would not be giving her the opportunity to “act up” because: (i) she had observed that Ms Hall’s health had deteriorated and she was concerned that taking on the role could adversely affect her health; and, (ii) she was concerned that Ms Hall was about to go on holidays and therefore her appointment would mean a loss of management continuity and inevitable staff disruption.
Ms Hall challenged Ms Van Raak’s decision and said it was unfair. In the course of that discussion, Ms Van Raak suggested that Ms Hall contact DIAC’s NSW Human Relations Manager, Ms Trish Torrens, to discuss her “options” should her illness prevent her from working in the future. Ms Van Raak nonetheless undertook to speak to the other EL1s and see if they had any objections to Ms Hall taking on the acting EL1 role, in circumstances where she was about to take leave. After consulting the other managers, Ms Van Raak advised Ms Hall that she was happy for her to take on the role, providing she agreed to cancel her holidays. Ms Hall agreed to that proposal.
Ms Hall and Ms Van Raak are in broad agreement about what was said during that conversation apart from the following statements Ms Hall attributes to Ms Van Raak:
You know when the position comes up you won't get it, you know.
…
I know you managed the entire contract without assistance and I know you could do the job better than anyone else but when the position is for permanently [sic] you won't get it because the position needs to go to a NSW staff member.
Ms Van Raak denies making those statements.
6 October 2011 meeting
In the latter part of 2011, a number of substantive positions became vacant in the area where Ms Hall was working, including two EL1 positions: a Senior Contract Manager and Security Liaison Manager. Ms Hall applied for the former position. In addition, she was requested to chair a selection panel for another position within that recruitment round, an APS 5 position.
On 6 October 2011 a meeting was held for those involved in the recruitment process. It was attended by Ms Hall, Ms Van Raak, Ms Kerrie Pennell, who then worked under the supervision of Ms Van Raak, Mr Michael Creighton, and DIAC’s NSW Human Relations Manager, Mr Les Sweatman. None of the witnesses in these proceedings could remember the name of the sixth person who attended by phone. According to Ms Hall, in that meeting, following an explanation given by Mr Sweatman about DIAC's “diversity targets” and how the needs of disabled people must be accommodated in the recruitment process, Ms Van Raak said, "We don't hire people like that here”.
According to Ms Hall, when Ms Van Raak made that comment Mr Sweatman took a deep breath and hung his head. Ms Hall said she became alarmed because Mr Sweatman said nothing. She claims she said to Ms Van Raak, ”I'm frightened about being interviewed by you now”."
Ms Hall tendered in these proceedings a notebook (Exhibit A1) which contains a two-page account of the 6 October 2011 meeting. According to Ms Hall, it was her practice to use the notebook not as a diary, but to record important events that happened at work. The entries in the notebook end around the time Ms Hall went on sick leave in January 2012.
At the back of one of the pages in the notebook is written, "KVR" – Karen Van Raak - "We don't hire people like that here" (the offending entry). Ms Van Raak denied making that comment. Mr Sweatman testified that while he recalled discussing the needs of people with disabilities at the meeting he had no recollection of the offending statement. He agreed that it was possible he might have been looking down during the meeting but said this was probably because he was looking at his notes. Ms Pennell also testified that she had no recollection of the offending statement. She denied, as alleged, that Ms Hall raised the issue with her during a conversation on 21 December 2011.
The purported NSW-based staff requirement
As noted, Ms Hall believes one of the reasons she was not appointed to the disputed position was because she was a Canberra-based employee. She contends that on a number of occasions while working at the Villawood Detention Centre, positions were advertised as being exclusively available to NSW–based DIAC staff. That claim is consistent with a number of advertisements contained in the documents lodged with the tribunal by Comcare as required by s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
Ms Hall claims that this practice had caused considerable disquiet amongst Canberra-based DIAC staff, and at some point the union raised the issue with management, apparently without success. Ms Van Raak broadly agrees with that claim.
The disputed position was advertised as being open to the public. It is agreed that there is nothing in the available material to indicate that the position was reserved for, or preference would be given to, NSW-based DIAC employees.
Ms Van Raak testified that throughout the period she was employed at Villawood Detention Centre, a number of positions advertised internally were advertised as being only open to NSW-based staff. She stated it was her understanding that this practice applied exclusively to “mobility positions”. She denies that it had been her understanding that being a NSW-based employee was a de facto requirement for the disputed position.
The interview for the disputed position
The selection panel for the two advertised EL1 positions consisted of Ms Van Raak and Mr Hasan Sowad, who acted as chair.
Ms Hall claims that apart from a written test given at interview she left the interview knowing that she had performed well. She claims she was proud of her performance and had taken steps to rehearse her answers prior to the interview.
She contends however that her performance at interview may have been adversely affected by the following: first, the Chair's statement that she had applied for two positions when, in fact, she had only applied for the contract management position. Second, Ms Van Raak's failure to take notes during the interview. In Ms Hall’s opinion Ms Van Raak has a poor memory and she was concerned that without notes, Ms Van Raak would be unable to recall what she said at interview and make a proper comparison with the answers given by other candidates. Third, Ms Van Raak laughed at one of her answers about riots that had occurred on Easter Island, , which made her uneasy. Finally, Ms Van Raak's statement, made at the end of the interview, that the decision would be announced at the end of the week which Ms Hall found to be “a little odd” because she understood she was only the second person to be interviewed.
Despite these concerns, Ms Hall claimed she tried to remain positive. She said that despite being confident about her performance at interview, she left the interview with serious misgivings that her application would be successful. In particular, she was concerned that the requirement she be “NSW-based”, together with the panel’s bias against disabled people would, in effect, torpedo her prospects of success.
On 15 December 2011 Ms Hall was advised that she had been unsuccessful in her application for appointment to the disputed position and was provided with a copy of the panel’s assessment of her application. On 10 January 2012 Ms Hall submitted an application for “Review of Action” of the appointment process for the disputed position. She claims that she raised with the delegate responsible for conducting that review, her belief that the decision made by the panel had been influenced by bias. According to Ms Hall, the delegate replied sarcastically: "Well, of course, you can go off to the Federal Court."
The report of the Review of Action, dated 10 April 2012, stated that no serious defect had been identified in the recruitment process and the balance of matters raised by Ms Hall in her request for review, were “non-reviewable”.
On the final morning of the hearing, the tribunal was provided with a copy of the selection report prepared by the panel. The report states that of the 10 people interviewed for the position, Ms Hall was ranked seventh, and given a total score of 34.5. In the commentary to the report, the panel wrote:
Ms Hall performed to a high degree in regard to experience and understanding of managing contracts on the ground, but her examples were not one which demonstrates [sic] a strong global understanding of the business with a low level demonstration of influencing skills and were one-dimensional. Her answers were those of a strong performing detention operations APS 6.
The report also included a statement to the effect that while Ms Hall and two other candidates had significant experience acting at the EL1 level, all would benefit from greater exposure to “the broader work of DIAC”.
The report states, "Those candidates who had an aggregate score of 34 or below were rated as unsuitable [for appointment]." The report stated that Ms Hall was as suitable for appointment.
Mr Sweatman testified however, that if a candidate did not achieve a rating of at least six in any of the six advertised selection criteria they were considered not suitable for the role, irrespective of their global score. Further, he said that the minimum global score before a candidate could be considered as suitable for appointment was 36, not 34 as stated in the report.
The panel recommended that Ms Sivette Ibraham and Ms Michelle Steven be appointed to the two EL1 positions. The delegate, Ms Janet Macklin, and the Oversight Committee charged with overseeing the process accepted the panel’s recommendation.
Was the decision reasonable?
Ms Hall agrees that if, as asserted by Comcare, the decision not to appoint her to the disputed position was a decision based on merit, as required by the rules governing appointments within the Australia Public Service, the decision would be reasonable. She contends however that policy was not followed. That is the central issue in dispute: whether merit-based principles were applied in the selection of the successful candidates for the two EL 1 positions.
The determination of whether the decision not to appoint Ms Hall was reasonable involves an objective judgement taking into account all matters surrounding the decision. In approaching that task, I have not made any presumption about the reasonableness or otherwise of the decision. In respect of the Review of Action, in my opinion, it is of marginal relevance to the question of whether the decision not to appoint Ms Hall was reasonable. The delegate who conducted that review as required, considered whether there was a “serious defect” in the appointment process. The notion of reasonableness is much broader than the notion of “serious defect” and involves consideration of a broader range of factors. A finding that there was no serious defect in the appointment process does not necessarily mean that the decision not to appoint Ms Jones was reasonable.
I accept that if, as Ms Hall contends, the decision not to appoint her was influenced by considerations of her disability, or her status as a Canberra-based employee, the decision could not be said to be reasonable.
There is no direct evidence that consideration of Ms Hall's health or, indeed, her status as a Canberra-based employee played any role in the decision made by the panel to place her seventh on the list of candidates who were interviewed for the position. However, this is not fatal to her claim if an inference to this effect can properly be drawn.
The evidence makes plain that Ms Van Raak was aware that Ms Hall suffered from a disability which had interfered with her work to an extent, from time to time. She admits that Ms Hall’s health played a role in her initial decision in early 2011 not to appoint her to an acting EL1 position. I accept that that decision was made out of concern for Ms Hall and management continuity. Nonetheless, it demonstrated that at least on that occasion, Ms Hall’s disability played a role in Ms Van Raak's assessment of Ms Hall’s suitability for employment in an EL1 role, albeit on an acting basis.
A critical factual issue in dispute in this matter is whether, as alleged by Ms Hall, Ms Van Raak said at the 6 October 2011 meeting, "We don't employ people like that here”. Of the four people who attended the meeting who gave evidence in these proceedings, Ms Hall is the only one to claim that statement being made. Given the configuration and size of the meeting room, the fact that Ms Hall and Ms Van Raak were seated across the table from each other, together with the loaded nature of the alleged statement, it is improbable that had Ms Van Raak said those words they would have gone unnoticed by those present at the meeting.
The only evidence to support Ms Hall's claim is an entry in her notebook. As pointed out by counsel for Comcare, Mr Gollan, there the reliability of the notebook is in quetsion. Despite the long history of these proceedings it was neither mentioned nor produced until the hearing commenced. In addition, the position of the offending entry is inconsistent with all other entries in the notebook — it is the only entry on the reverse side of a page.
It is possible that Ms Hall is mistaken and Ms Van Raak did not say "We don't hire people like that here." It is also possible that Ms Van Raak said those words. It is also possible that Ms Hall misheard Ms Van Raak: as she concedes to this day she cannot be sure the alleged words were said in jest. While possible, as suggested by Ms Hall, that the reason Mr Sweatman and Ms Pennell testified that they did not hear the statement attributed to Ms Van Raak was because they were fearful of the ramifications were it to be discovered they took no action on hearing that statement, on balance I think it more probable than not that that the offending words were not said.
An allegation of disability discrimination, indeed, of discrimination of any type, is notoriously difficult to establish. Nonetheless there is no evidence that, as Ms Hall contends, the Chair of the panel took into account her disability in reaching his decision. I accept that Ms Hall holds the honest belief that disability discrimination played a role in Ms Van Raak's decision. On the available evidence I could not be satisfied that it did.
Turning now to the question of whether the panel took into account, or had regard to, the fact that Ms Hall was a Canberra-based employee. The evidence reveals that in the three years prior to the decision not to appoint Ms Hall to the disputed position, a number of positions were advertised within Villawood Detention Centre as being available only to NSW-based staff. There is no evidence that prior to the appointment being made that a position advertised as being open to all staff was nonetheless subject to an undisclosed requirement that the successful applicant be NSW–based.
There is no direct evidence that the purported requirement that the successful candidate be NSW-based played a role in the panel’s deliberations. Nor, for the following reasons, in my opinion can thatinference be drawn. First, the allegation was denied by Ms Van Raak. Second, Mr Sweatman, who impressed me as a witness of truth, had no knowledge of the alleged requirement in respect of this appointment round. Third, at least two of the shortlisted candidates were not NSW-based, including the candidate ranked most highly by the Panel.
The only evidence that could be said to support Ms Hall's belief about the purported NSW-based requirement, is the alleged comment made by Ms Van Raak in March 2011 that the position must go to a NSW-based employee. Even if accepted that comment was made, it would not assist Ms Hall. At the time of that discussion the disputed recruitment round had not been advertised and there is no evidence which could support a finding that Ms Van Raak had advance knowledge of that round.
Having regard to all of the evidence I could not be satisfied that the alleged requirement that the position go to a NSW-based employee formed part of the panel’s decision-making process.
Ms Hall also asserts that the decision was unfair because she and the Chair of the panel did not get on. In broad terms Ms Van Raak, agrees that Ms Hall and the Chair did not see eye-to-eye. While possible that this influenced the Chair's assessment of Ms Hall’s application for the disputed position, absent better evidence, I could not be satisfied that that occurred.
I accept Ms Hall genuinely believes that she was the candidate most suited to fulfil the requirements of the disputed position. That belief was not without foundation given her demonstrated performance acting in the role over an extended period. However, as acknowledged by Ms Hall, the panel was required to make a holistic assessment and assess each candidate against the advertised selection criteria, taking into account their performance at interview, written application and employment history. Employment histroy was but one of a number of factors the panel were required to take into account. As the assessment report reveals, in the panel's opinion, Ms Hall performed less strongly at the interview in two of the selection criteria - Working Relations and Communications – than she did in her written application.
It goes without saying that the assessment of a person's suitability for a position, and their performance at interview, is subjective. It may be that a different panel would have reached a different conclusion about the persons most suited for the two EL1 positions. It may be that another panel may have assessed Ms Hall more highly or, indeed, less highly. It does not follow, however, that the decision made by the panel was unreasonable. Having regard to all of the evidence I am satisfied that the decision not to appoint Ms Hall to the disputed position was a reasonable decision.
Was the decision taken in a reasonable manner?
Whether the decision not to appoint Ms Hall was taken in a reasonable manner is a question of fact to be determined against the ordinary standards of reasonable employers in all of the circumstances of the case. Ms Hall points to a number of examples of what she considers to be irregularities in the appointment process:
(i)the entry in the Gazette which indicates that a third person was appointed to one of the two advertised EL1 positions;
(ii)various irregularities in the material relating to the appointment process, including the Conflict of Interest declaration signed by Ms Van Raak, which was not signed, as required, prior to the deadline for the close of applications; the discrepancies in the advertised deadline for applications for the disputed position
(iii)the discrepancy between the statement made by the panel that Ms Hall was suitable for appointment and Mr Sweatman's evidence that because she had been awarded a score of less than six in two of the selection criteria, she could not be considered suitable for appointment.
The Gazette issue
In early January 2012 the Commonwealth Government Gazette carried an announcement that, in addition to the two successful candidates, a third person had been appointed in the recruitment round for the two advertised EL1 positions.
No satisfactory explanation was given which might shed light on why this occurred. Mr Sweatman testified that he had no direct knowledge of the gazettal of the third appointment. He thought an explanation — which he put no higher than a possibility — might be that sometimes DIAC fills a vacancy in one area with a person who was already on a merit list for another position. This, he explained, removes the requirement of going through a recruitment round. He thought it possible that the NSW recruitment might have been used as a vehicle to place the third person, apparently a Western Australian DIAC employee, in a comparable position in a detention centre in Western Australia.
On the available evidence, it is not possible to take the matter much further than that, and in any event, I do not accept that this apparent anomaly indicates that the action of not appointing Ms Hall, was not taken in a reasonable manner. That decision was made a month prior to the unexplained Gazette entry. That entry had no bearing on the disputed decision or the manner in which it was taken.
The scoring discrepancy
The evidence indicates that either Mr Sweatman, or the panel, were mistaken about the requisite score a candidate must achieve to be assessed as suitable for appointment. Even if, seems likely the panel erred and Ms Hall could not be assessed as suitable for appointment, that action had no bearing on the decision not to appoint Ms Hall, or the manner that action, or the selection process, was taken.
Irregularities in documentation
Ms Hall has correctly identified a number of irregularities in the available documents relating to the appointment process. Irregularities do not necessarily make an administrative action, or the manner in which it was taken, unreasonable. The nature of the irregularities is relevant. The cited irregularities were relatively trivial and there is no evidence that Ms Hall, or indeed any candidate, was adversely affected by them. I am not persuaded that, on this basis, the action was not taken in a reasonable manner.
Conclusion
The task I am required to perform is to decide whether the decision not to appoint Ms Hall constituted reasonable administrative action taken in a reasonable manner. Ms Hall may be correct that the alleged practice of restricting recruitment for certain positions to NSW-based employees, in effect excluding Canberra-based DIAC employees from redeployment and other opportunities within DIAC, is unfair. She may also be correct that the Review of Action into her complaint about the appointment process was defective. Indeed, if, as the evidence suggests, Mr Sweatman was not questioned about the discriminatory statement alleged to have been made by Ms Van Raak, her concerns about the review are probably correct. However, that is not the question I am required to determine. I am required to determine whether the decision not to appoint Ms Hall to the disputed position constitutes reasonable action taken in a reasonable manner.
I apprehend that Ms Hall will feel aggrieved by this decision. I accept she holds the genuine belief that she was treated unfairly and that she was the best person for the disputed position. Nonetheless, I have decided, based on the available evidence that the decision was reasonable and it was taken in a reasonable manner. For that reason I must affirm the decision under review.
I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .................[SGD].......................................................
Associate
Dated 15 September 2014
Date(s) of hearing 26, 28 and 29 May 2014 Applicant In person Counsel for the Respondent Matthew Gollan Solicitors for the Respondent Australian Government Solicitor
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