Kevin Hodder and Comcare
[2013] AATA 251
[2013] AATA 251
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0144
Re
Kevin Hodder
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 24 April 2013 Place Sydney The decision under review is affirmed.
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Dr Ion Alexander, Member
CATCHWORDS
WORKERS COMPENSATION - Injury - Employment contributed to injury to a significant degree - date of injury - administrative action - whether administrative action taken in a reasonable manner - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988: ss 5A, 14
CASES
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SECONDARY MATERIALS
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REASONS FOR DECISION
Dr Ion Alexander, Member
24 April 2013
Mr Hodder was employed by the Department of Defence as a Product Sales Officer at the Australian Hydrographic Office for approximately nine years until his employment was terminated in October 2011.
In a claim dated 14 June 2011, Mr Hodder sought compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for incapacity, because of a mental condition caused by “his personal life being spread through the office” by his sister-in-law who was also employed in the same office.
There is no dispute that Mr Hodder suffered from an injury as defined in the Act, in that he suffered a mental condition variously diagnosed by different medical practitioners as “Anxiety’, “Major Depression” or “Adjustment Disorder”.
There is also no dispute that Mr Hodder’s employment had contributed to his mental condition to a significant degree.
Comcare contends that the correct date of injury for Mr Hodder’s mental condition is the 8 June 2011, which is the date on which he first sought medical treatment.
Comcare also contends Mr Hodder suffered his claimed medical condition as a result of reasonable administrative action undertaken by his employer in a reasonable manner. Therefore, Comcare contends, there is no liability to pay compensation in accordance with section s 5A of the Act.
Mr Hodder disputes Comcare’s contentions and submits that the correct date of injury is the 4 April 2011, which he claims is the date at which his mental condition first resulted in an incapacity for work.
Mr Hodder also submits that the s 5A exclusion does not apply because he did not suffer his mental condition as a result of administrative action or, alternatively, that the administrative action was not undertaken in a reasonable manner.
ISSUES
The issues for consideration are:
(a)What was the date on which Mr Hodder sustained his mental injury?
(b)What administrative action did Mr Hodder’s employer undertake and did he suffer his medical condition as a result of the administrative action?
(c)Was the administrative action reasonable and taken in a reasonable manner?
What was the date on which Mr Hodder sustained his mental injury?
Mr Hodder submits that 4 April 2011 was the first day on which he suffered incapacity for work because of his work-related mental condition, and therefore was the date on which he sustained the injury.
I note that in his claim form he had nominated the 26 May 2011 as the day on which he first noticed he was ill, and that 7 June 2011 was the first day when he sought medical treatment for his claimed mental condition.
In his oral evidence Mr Hodder claimed that he had frequently reported psychological symptoms to his General Practitioner, Dr Moss, during 2011, prior to seeking treatment in June. When asked why he had sought treatment in June, he speculated that it was probably because this was the first time that he had realised that he had been suffering stress and anxiety for a long time.
A review of Dr Moss’s clinical records reveals more than fifty notations between January 2011 and 8 June 2011 and, apart from one notation on 30 May 2011, ie “stress anxiety, neck pain”, there were no other references to Mr Hodder’s mental health or difficulties at work.
In the course of cross-examination, when asked why there were no references to his mental health in Dr Moss’s clinical records in 2011 until June, Mr Hodder was unable to provide any explanation and when challenged denied that he was making it up.
Relevantly, between 5 April 2011 and 28 April 2011 Mr Hodder saw Dr Moss on six occasions. The clinical records reveal that all the visits were related to an infection in the right ear, and that Mr Hodder was referred to an ENT specialist for treatment. There is no reference to any difficulties at work or any mental health issues. Also, four medical certificates were issued stating that Mr Hodder was unfit for work on six days because of his infection.
I note that in her report of 16 August 2011 Dr Moss refers to issues causing Mr Hodder stress “outside the work place in April 2011”, and in a brief letter dated 13 September 2012 she states “Mr Hodder was definitely suffering from symptoms of anxiety 5April 2011”.
The references are retrospective and provide little assistance particularly as they are not consistent with Dr Moss’ contemporaneous notes.
Apart from Mr Hodder’s own assertions, there is really no convincing evidence before the Tribunal to support a conclusion that he suffered from a mental condition or any incapacity from psychological symptoms in 2011 prior to June.
The first meaningful reference to a mental condition is when Mr Hodder was seen by Dr Moss on 8 June 2011, when he complained that he was suffering from various symptoms caused by the behaviour of his sister-in-law at work. Dr Moss also recorded that he said that he “is being investigated when he had done nothing” but did not provide any further detail.
Dr Moss diagnosed “anxiety, exacerbation neck pain from anxiety” and prescribed antidepressant medication. She issued three Workcover Medical Certificates, certifying that Mr Hodder was unfit for work for about five weeks because of “harassment in the workplace”.
In my view, the evidence before the Tribunal clearly points to a conclusion that the onset of Mr Hodder‘s mental condition was on or about 8 June 2011. Therefore I am satisfied that the correct date of injury for the purpose of his claim is the 8 June 2011, being the date on which he first sought medical treatment and the first occasion on which there is credible evidence of incapacity because of a work-related mental condition.
What administrative action did Mr Hodder’s employer undertake and did he suffer his mental condition as a result of the administrative action?
On 30 June 2010 Mr Hodder had a meeting with Mr Andrew, Licensing Manager, and Ms Coulls, Deputy Director of Product Distribution. The matters discussed included the outcome of a Quick Assessment (QA) regarding an incident involving Mr Hodder and another employee. A file note dated 30 June 2010 records that that both parties involved in the incident were found to have exhibited behaviour at the lower level of behaviour inconsistent with the Code of Conduct, and a recommendation was made that they were to be informally counselled by their respective managers. At the meeting Mr Hodder indicated he thought the witnesses were biased and the findings were not fair, however, he appeared to be receptive to counselling and indicated he would ensure his behaviour was in accordance with the Code of Conduct at all times, and would inform Mr Andrew of any issues causing him frustration in the workplace.
On 30 July 2010, at 11:00 am, Mr Hodder met with Mr Andrews and Ms Coulls to discuss the results of his recent performance assessment, where he had been rated as “partially effective” and would be denied his salary progression. The record of interview notes his “attitude was dismissive.” At the end of the meeting when Mr Hodder indicated he intended to go home, Ms Coulls raised discussions she had with his direct supervisors about his habit of leaving the workplace when he was unhappy. It was suggested on this occasion that he should go for a walk and then return to work. Mr Hodder responded by saying that he was leaving and left the workplace despite a verbal direction that he did not have permission to leave.
On the morning of 14 September 2010, Mr Hodder was absent from the workplace without leave. In a written statement dated 10 July 2012 Mr Andrew notes that Mr Hodder’s sister-in-law told him Mr Hodder was absent because of marital difficulties. In a subsequent telephone conversation with Mr Hodder, Mr Andrew told him of the conversation with his sister-in-law and notes that Mr Hodder was “uncommunicative”, but said “he had some and had a medical certificate until 20 September 2010”. Mr Andrew added that neither at that time nor on his return to work did Mr Hodder raise any concerns about the reported conversation with his sister-in-law.
In a file note dated 15 February 2011 Mr Andrew records a conversation in which Mr Hodder claimed he was having significant problems at home, including some physical medical problems.
Mr Hodder was told that because of the recent unauthorised absence from work, and the failure to provide a medical certificate, as well as the absences during the previous year, he would be given a written Lawful Direction about conduct and attendance. He was also warned that failure to comply with the Direction would result in further action that could have severe consequences.
In a file note dated 5 April 2011, Mr Andrew describes a telephone conversation where Mr Hodder contacted him at 7:25am and said he was not coming to work because he was stressed by some behaviour involving his sister-in-law. Mr Hodder claimed she was gossiping around the office about a current family matter and knew that she had gossiped a lot around the office when he was having marital difficulties. Mr Hodder claimed that he was stressed and humiliated and wanted the issue dealt with formally.
Mr Andrew refers to this conversation in his statement of 10 July 2012 and indicates that he understood Mr Hodder to be angry rather than ill. He also notes it was not until Mr Hodder was notified that he would be the subject of an investigation about his own conduct in the workplace that he raised any issue of illness related to the events with his sister-in-law.
Also on 5 April 2011 Mr Andrew and Ms Coulls met with Mr Hodder’s sister-in-law who stated that she was frustrated by Mr Hodder’s allegations and considered them to be “a joke”. She was told that an independent QA would be done to look into the issue.
The QA performed on 6 April 2011 found that Mr Hodder’s complaint had some substance, but that it was clear from both parties there was considerable stress and tension arising from their relationship outside the workplace. The outcome of the QA was that Mr Hodder’s sister-in-law was counselled and gave an undertaking to cease discussing any matters relating to Mr Hodder’s family while at work. Also, steps were taken to ensure minimal workplace interaction between the two parties.
In a file note dated 12 April 2011 Mr Andrew notes that after Mr Hodder had read the QA report, and was informed of the outcomes, he appeared to be happy and stated that as far as he was concerned the issue was resolved and expressed thanks for the way it had been handled and resolved.
In a file note dated 15 April 2011 Mr Andrew records that at a meeting, with Ms Coulls present, Mr Hodder alleged t his sister-in-law had singled him for exclusion from the office Lotto syndicate she had been managing for years in order to harass and humiliate him. Mr Hodder indicated that he had come to this conclusion after talking with two other members in the syndicate.
On the same day an independent QA was arranged in order to investigate Mr Hodder’s allegation.
Later in the day, but before the QA, Mr Andrew was approached by the two members of the syndicate that Mr Hodder had questioned, and in a file note dated 15 April 2011 Mr Andrew records that they explained that Mr Hodder had approached them about the closure of the syndicate, and that they had felt offended and fearful because of his aggressive behaviour. They declined to make a formal complaint for fear of recrimination but as they were scheduled to be interviewed by the QA Officer, they were advised to be as “forthcoming as possible.”
In a written report dated 18 April 2011 the QA Officer notes that Mr Hodder and his sister-in-law had significant personal differences that stemmed from family issues external to the workplace. Mr Hodder’s sister-in-law stated that she had managed the Lotto syndicate as a volunteer and no longer wished to continue in this role because of the recent complaints by Mr Hodder. It appears that she did close the syndicate for all the members, however, the precise timing and method of closure was not entirely clear.
Mr Hodder’s two co-workers claimed that he had directly accused them of talking about him and lying about the status of the syndicate. One co-worker referred to past incidents where Mr Hodder was “happy to make jests at other workers’ expense but does not receive similar treatment very well”, and expressed the opinion that his co-workers found it difficult to make formal complaints about him for fear of retaliation and unpleasantness in the workplace.
The QA Officer concluded that Mr Hodder seemed to be the person initiating “the most negative impact on his co-workers” and that he was “acting defensively, making accusations and being purposefully unpleasant”, and that he “does not seem to be mindful of the negative impact his behaviour was having on his co-workers” and that he was “causing them great stress and disruption”.
Also the QA Officer found that there seemed “very little substance” to support Mr Hodder’s claim that his sister-in-law was trying to manipulate the other members of the syndicate to humiliate him.
In the file note of 15 April 2011, Mr Andrew recorded that immediately after being interviewed by the QA Officer, one of the co-workers approached him and “looked very upset”. She told him that she was fearful of recriminations from Mr Hodder because of what she had said to the QA Officer, and was counselled about various strategies to alleviate her concerns.
In a file note dated 21 April 2011, Mr Andrew records that he informed Mr Hodder that his complaint had been found to have little substance, and the Lotto syndicate had been closed. He also told him the QA had raised other issues which needed to be discussed with him, and that a meeting with himself and Ms Coulls would be arranged during the first week in May 2011.
On 3 May 201,1 Mr Hodder met with Mr Andrew and Ms Coulls in order to discuss the findings of the outcome of the QA done on the 15 April 2011.
In a file note dated 3 May 2011, Mr Andrew notes that at the beginning of the meeting Mr Hodder was told the conversation may be difficult and he could have a support person present. Mr Hodder stated he did not need a support person.
Mr Hodder was told the QA found his is complaint had very little substance, the Lotto syndicate was closed and as both parties had previously agreed to limit their interaction to necessary workplace matters, no further action would be taken.
Mr Hodder was then told that the QA report had documented some concerning incidents and claims, with reference to his behaviour in general, as well as his recent behaviour towards two of his co-workers. The incidents and claims were identified and described as quite concerning and it was suggested to him that his behaviour did not appear to be in keeping with the behavioural obligations of the Code of Conduct.
Also, Mr Hodder was told that, although his co-workers had not made a formal complaint, the nature of the incidents identified in the QA were very concerning and warranted formal referral in the form of a Management Initiated Complaint for further investigation.
It was noted that Mr Hodder “heatedly downplayed the allegations and made some remarks that these allegations were totally unfair and that that they are all ganging up on him”.
Key background events were identified including numerous unauthorised absences from work during 2010/2011, and the written Lawful Direction regarding conduct and performance which had been issued on 15 February 2011.
Mr Hodder was informed the matter would be referred to the Conduct, Performance and Probation Branch (CPPB) to determine whether he had breached the Code of Conduct. The process was described as potentially lengthy, with formal interviews of the relevant parties and, if the assigned investigator finds that a breach has occurred, the matter would be referred to the Code of Conduct Delegate who had the ability to impose sanctions.
It was noted that Mr Hodder said he wouldn’t be answering any questions or participating in the process and he “wouldn’t be here”.
Mr Hodder was advised that support was available throughout the process, and was given certain documents which contained information about the various staff support services available to him. He declined any assistance, discarded the documents and stated he did not need them because he was not going to participate.
Finally, when Mr Hodder was given an opportunity to ask questions or make further comments, he declined and confirmed he would not be participating.
On 4 May 2011 Mr Andrew referred the matter to CPPB for consideration.
On the 6 June 2011 Mr Hodder was formally notified that a Code of Conduct investigation would take place in relation to the incidents discussed on 3 May 2011. He left work at lunch time and never returned.
The documentary evidence before the Tribunal demonstrates that Mr Hodder had been involved in a number of administrative actions during the 12 months prior to June 2011.
The documentary evidence includes reports from two psychiatrists and from one psychologist which confirmed that Mr Hodder suffered from a mental condition, and that issues at work had significantly contributed to his condition. The reports are unhelpful with regard to the present issue because the issue simply had not been directly addressed. This is not surprising because the histories provided to the practitioners by Mr Hodder were not consistent and not supported by the documentary evidence, but focussed almost entirely on his assertion that his condition was caused solely by the behaviour of his sister-in-law at work.
As noted above, there was no credible evidence before the Tribunal that Mr Hodder had suffered any incapacity because of an employment related mental condition prior to 8 June 2011.
Therefore, for present purposes, I am satisfied that the relevant administrative actions are those that arose in the weeks preceding the onset of Mr Hodder’s mental condition on 8 June 2011 and include:
·the QA done on 15April 2011, which was undertaken because of Mr Hodder’s complaint about his sister-in-law;
·the meeting with Mr Andrew on 21 April 2011, where Mr Hodder was informed that the QA Officer had decided his complaint was of little substance, but that other matters had been raised which required a further meeting in the presence of Ms Coulls;
·the meeting with Mr Andrew and Ms Coulls on 3 May 2011, where the finding of the QA in respect of Mr Hodder’s behaviour were specified, and where he was told the matter would be referred to the CPPB for further investigation; and
·the decision of the CPPB to undertake a Code of Conduct investigation and the formal of the decision on 6 June 2011.
In my view, the clear temporal relationship between the onset of Mr Hodder’s mental condition and the QA done on 15 April 2011, and the subsequent process which resulted in a referral to the CPPB, clearly points to a conclusion that this process contributed significantly to the onset of his mental condition. The fact that the QA was initiated because Mr Hodder made a formal complaint, which was found to be of little substance and unexpectedly raised serious concerns about his behaviour, I believe adds weight to the conclusion. Also, the fact that Mr Hodder was diagnosed with a mental condition and found to be unfit for work almost immediately after he was informed that a Code of Conduct investigation was to take place adds further weight.
It follows that I am reasonably satisfied that Mr Hodder suffered a mental injury as a result of administrative action.
Was the administrative action reasonable and taken in a reasonable manner?
The only documented submission by Mr Hodder in respect of the reasonableness of any administrative action is contained in his Statement of Fact and Contentions which state that:
“In the event that the Applicant’s psychological condition is found to have been suffered on 8 June 2011 and has been significantly contributed to by disciplinary action taken against him for alleged inappropriate conduct, the disciplinary action was not undertaken in reasonable manner.”
At the hearing, submissions made by Mr Hodder’s Counsel as to whether any of the administrative actions listed above were reasonable or taken in a reasonable manner were unhelpful. Counsel commented that it was “inappropriate, unreasonable, for those practices to be occurring once the Applicant had gone off the rails”, but did not provide meaningful reasons and relied primarily on his submission that the onset of Mr Hodder’s mental injury was caused by his sister-in-law’s behaviour, which predated the listed administrative actions.
Nevertheless, I intend to examine each of the listed administrative actions as to whether they were reasonable and taken in a reasonable manner.
The first relevant administrative action was the QA done on the 15 April 2011 which, in my view, was clearly a reasonable action. In her oral evidence Ms Coulls explained that a QA is the first action to be taken when there is a formal complaint of unacceptable behaviour in the workplace and is, in fact, mandated by a Department General Instruction. Also, in oral evidence, Mr Hodder conceded that the QA was an appropriate response to his complaint.
The QA was performed by a senior naval officer who interviewed all the relevant parties and submitted a comprehensive and evenly balanced report dated 18 April 2011.
Apart from a comment by Mr Hodder in a subsequent meeting that “they are all bullshit artists” and an assertion that the allegations in the QA were totally unfair, there is no convincing evidence before the Tribunal to suggest that the QA was undertaken in a manner that was not reasonable.
I am also satisfied that the meeting on 21 May 2011, where Mr Andrew informed Mr Hodder about the findings of the QA in respect of his complaint, was also reasonable. An early response to a formal complaint would generally be considered to be good practice in the context of human resource management.
At this meeting Mr Andrew also told Mr Hodder that the QA had raised some other issues which required further discussion in the presence of Ms Coulls, and that a meeting would be arranged in the first week of May, but did not specify the nature of the other issues. Arguably, Mr Andrew’s failure to provide Mr Hodder with the details of the other issues, and then foreshadow a somewhat delayed meeting with a senior manager, could be seen as unreasonable.
The 21 April 2011 was Easter Thursday and in an email to the relevant case officer at CPPB dated 4 May 2011, Mr Andrew notes that the meeting with Ms Coulls was scheduled after the Easter break when staff had returned from leave.
On consideration of the extenuating circumstances, although not ideal, I am satisfied that the manner in which the meeting on 21 April 2011 was undertaken was reasonable.
The meeting between Mr Hodder, Mr Andrew and Ms Coulls held on 3 May 2011 is, in my view, the most critical administrative action in this case. This was the meeting in which Mr Hodder was informed of the specific complaints about his behaviour that had been raised by the QA. Also, during this meeting, he was informed of the management decision to refer the matter to the CPPB.
It cannot be disputed that Mr Hodder was entitled to be fully informed about the complaints that had been raised in respect of his behaviour. In my view, the more pertinent issue is whether the decision to refer the complaints to the CPPB for further investigation was reasonable.
During the meeting key areas of concern were specified, including the incident alleged to have taken place between Mr Hodder and two of his colleagues on 15 April 2011, as well as other issues raised by the QA regarding general concerns about bullying and fear of retribution by Mr Hodder.
In oral evidence Mr Andrew explained that he had found the complaints about Mr Hodder’s behaviour “very concerning”, particularly as there had been previous issues with his attendance and poor behaviour that had required a lawful direction.
Mr Andrew said that a referral to the CPPB was needed because he felt that the situation was beyond the ability of local management and needed to be managed by an independent group. He explained that there are departmental procedures to deal with conduct and behaviour, with several options for managers with difficult workplace situations including referral to the CPPB.
In a statement dated 25 February 2013, Ms Coulls notes that she and Mr Andrew decided to make a management-initiated complaint, because the complaints raised by the QA appeared to suggest that Mr Hodder had failed to comply with the formal direction to abide by the Code of Conduct that was issued on 15 February 2011.
In oral evidence Ms Coulls explained that in situations where a higher level of unacceptable behaviour is being considered, it can be referred to the CPPB who will decide whether or not to pursue a formal investigation into a possible breach of the Code of Conduct.
In cross examination, when asked why she and Mr Andrew decided to refer the matter to the CPPB, Ms Coulls explained that some of the complaints, raised by the QA, “were alarming”. In particular, she referred to the complaint that Mr Hodder played jokes at other people’s expense, and to the level of intimidation felt by one of Mr Hodder’s female co-workers so that she was afraid to make a complaint because of fear of retaliation by Mr Hodder.
I am satisfied that the evidence clearly demonstrates that Mr Andrew and Ms Coulls considered that the complaints raised by Mr Hodder’s two co-workers were sufficiently serious to warrant further investigation, and that an independent investigation by outside management was warranted.
It appears that referral to the CPPB was a standard departmental procedure that was designed to deal with the type of situation that confronted local management in this case.
Also, the referral to the CPPB was for the purpose of further independent investigation and I note that at the time of the referral, no adverse findings about Mr Hodder’s behaviour had been made.
I am satisfied that when one considers all the circumstances outlined above, referral to the CPPB was not only reasonable but necessary and in the best interest of all the parties.
At the hearing there were no direct submissions to suggest that the meeting on 3 May 2011 was not reasonable, and the veracity of the record of the interview prepared by Mr Andrew dated 3 May 2011, which is quite comprehensive and clearly demonstrates that the relevant issues were addressed, was not challenged.
Mr Hodder was given an opportunity to have a support person present which he declined. He was informed of key background issues and provided with an explanation in respect of the decision to refer the matter to the CPPB. When given an opportunity to ask questions and make comments and offered assistance with the ensuing process he declined, and stated that he did not need assistance because he was not going to participate.
In conclusion, I find that the evidence does not suggest that the interview on 3 May 2011 was undertaken in an unreasonable manner.
Although there is no documentary material before the Tribunal to explain the reasons why the CPPB decided to undertake a Code of Conduct investigation, on consideration of all the circumstances outlined above, I am satisfied that on balance the decision was reasonable.
The actual notification on 6 June 2011 was merely the final procedural step to implement the decision of the CPPB, and although it may have been the trigger for Mr Hodder’s mental condition, I am satisfied that in the circumstances it was reasonable.
For the reasons set out above, I am satisfied that Mr Hodder did suffer a mental injury and that his employment had contributed to a significant degree. I am also satisfied that his mental injury was the result of reasonable administrative action taken in a reasonable manner and, therefore, he is not entitled to compensation in accordance with s 5A of the Act.
The decision under review is affirmed
I certify that the preceding 87 (eighty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member
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Associate
Dated 24 April 2013
Dates of hearing 25 and 26 February 2013 Counsel for the Applicant Mr J Mrsic Solicitors for the Applicant Slater & Gordon Lawyers Counsel for the Respondent Miss R Henderson Solicitors for the Respondent Sparke Helmore
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