Liu and Comcare (Compensation)
[2018] AATA 3200
•4 September 2018
Liu and Comcare (Compensation) [2018] AATA 3200 (4 September 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5932
Re:Melissa Liu
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:4 September 2018
Place:Canberra
The reviewable decision of 15 September 2016 is affirmed.
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Deputy President Gary HumphriesCatchwords
COMPENSATION – SRC Act s 5A – whether Ms Liu suffered her psychological ailment as the result of reasonable administrative action taken in a reasonable manner in respect of her employment – whether the taking of the reasonable administrative action was an event without which Ms Liu’s psychological ailment would not have been a disease – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No2) 302 ALR 608
Comcare v Mooi (1996) 69 FCR 444
Lim v Comcare [2017] FCAFC 64Lynch and Comcare [2010] AATA 38
REASONS FOR DECISION
Deputy President Gary Humphries
4 September 2018
INTRODUCTION
Ms Melissa Liu was born in China but migrated to Australia in 1999, and speaks English as a second language. She has Masters degrees in Petroleum and Geology (obtained in China) and in Commerce (obtained in Australia).
In July 2007 Ms Liu commenced work as a non-ongoing APS employee of the then Department of the Environment and Water Resources (the Department, which term includes its subsequent iterations). She became an ongoing APS employee of the Department in October that year.
On about 11 April 2014 she suffered a psychological injury in the course of her employment with the Department, and for which she has been assessed as having a whole person impairment of 15%. She was advised in January 2016 that her employment there was terminated.
She lodged a claim on 23 May 2016 for workers compensation in respect of a psychological injury[1] pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 21 July 2016, a delegate of Comcare disallowed a claim for adjustment reaction with depressive reaction because it fell within the exclusionary provisions of s 5A of the Act. The delegate was satisfied her condition arose as a result of reasonable administrative action undertaken in a reasonable manner.
[1] In this decision, italicised text is generally used to indicate direct quotations.
On 15 August 2016, Ms Liu requested a reconsideration of this determination. On 15 September 2016, Comcare affirmed the determination.
On 2 November 2016, she applied to the Tribunal for merits review of the reviewable decision dated 15 September 2016.
FACTUAL BACKGROUND
At the hearing of this matter there was substantial common ground between the parties about the events which gave rise to Ms Liu’s psychological injury in April 2014. The Tribunal took live evidence only from Ms Liu herself and from two (former) departmental officers who had supervised her. The following account of the relevant events reflects, except where indicated, that common ground shared by the witnesses.
In the period between 2007 and 2014 Ms Liu held positions as an APS4 and APS5 officer in the Department, and sometimes acted as an APS6. Like other employees, she was required to undertake performance assessment on a cycle coinciding with the financial year – the Performance Development Scheme (PDS). For the 2012/2013 year her PDS rating was Level 2 – Developing at Level. This is one level below Level 3 – Fully Effective. Ratings below Fully Effective generally give rise to internal scrutiny of an employee’s performance.
At the beginning of 2014 she was an officer in the Office of Water Science (OWS) in the Department. She was in a section dealing with the provision of advice to a body called the Independent Environmental Scientific Committee (IESC); her section dealt specifically with the environmental impact of development applications in Queensland relating to coal seam gas and coal mining. When she first joined OWS in 2012 her role had been focused on research (but with some experience in providing scientific advice to the IESC), but by early 2014 the section she was then in was less involved in research and more involved in advice.
Her supervisor at the beginning of 2014 was Ms Rachel Bowman. In February 2014 Ms Bowman completed a PDS assessment of Ms Liu in which she rated her Fully Effective. Ms Liu described this assessment as an end of cycle rating. The assessment included a description of Ms Liu’s duties, which included:
Lead or contribute to the accurate and timely completion of Papers to successfully support the IESC Project advice role, including Supporting Information, draft Project Advice. [Emphasis added.]
In assigning her a Fully Effective rating, Ms Bowman commented:
Melissa has made good progress towards contributing to [Policy Advice]… Her next challenge for 6 months is to be able to take on a whole section e.g. [surface water]. 12 months – lead project. She will need support to help achieve these goals. [Emphasis added.]
Soon afterwards Ms Anu Datta succeeded Ms Bowman as Ms Liu’s supervisor. Ms Liu said that at an early stage of the relationship with her Ms Datta expressed concern about Ms Liu’s communication, that is, her ability to be understood in English. Ms Liu told the Tribunal she had done a communication course to deal with this issue.
Ms Datta gave evidence that Ms Bowman’s PDS assessment of February 2014 was not an end of cycle assessment but a mid cycle assessment. That part of the document containing Ms Bowman’s comments describes itself as PERFORMANCE AND CAPABILITY RATING – MID CYCLE.
It was put to Ms Liu that Ms Bowman’s comment about her leading a project within 12 months was an indication of her emerging responsibilities in the section; she denied this, saying this was merely a suggestion. She also said that the reference in her duty description to having to lead or contribute to the completion of advice papers offered a choice which she, rather than her employer, was able to make about the role she would play in the section. With respect to leading a project, she said I couldn’t do it. It was beyond my capacity.
The Tribunal also took evidence from Ms Fiona Beynon, who had been Ms Datta’s supervisor during 2014. Ms Beynon told the Tribunal that the words used by Ms Bowman in the performance assessment were not suggestions but indications of future requirements of Ms Liu, and that the requirement to lead or contribute in policy paper development was an election to be made by the Department, not by Ms Liu.
Ms Liu gave evidence that at about this time she sought to leave this area of the OWS and transfer elsewhere.
On 14 February 2014 Ms Datta and Ms Beynon met with Ms Liu to discuss her role in the section and her key result areas (KRAs – sometimes also referred to as KPIs) under the PDS. Ms Liu expressed concern over her ability to lead what was called in OWS a disciplinary aspect of supporting information for the IESC. Ms Beynon advised Ms Liu that leading the preparation of a disciplinary aspect was a reasonable expectation of an APS5. Ms Beynon also advised that if she were unhappy with this requirement Ms Liu could escalate the matter to the Assistant Secretary or talk to someone in the Department’s performance management area. It was also stated in the meeting that Ms Beynon and Ms Datta were willing to support Ms Liu to achieve her KRAs.
A series of emails passed between the three women following this meeting. Ms Beynon wrote on the same day as the meeting:
I wanted to make sure that you understand what we discussed today. We want you to succeed and we need your support in the section… I just want to ensure that that momentum remains and so we need to continue to expand your role in advice, especially as the section is becoming less involved in research activities…
I want to encourage you to carefully consider what you are capable of achieving and if that is likely to fit expectations. I suppose I felt today that you have some doubts, and I worry then that you have agreed to performance level that, whilst you think reasonable, you feel you cannot meet. If that is the case, then you need to give some real consideration to what next steps you should take, especially as there are limited options to do other work in this section...
The following Monday Ms Liu replied:
I also had some thinking on the weekend. Yes, providing policy advice is challenging for me… But, if Gayle [the Assistant Secretary] and you think I best fit in this section, I will take this challenge, and I think I can lead a disciplinary aspect of the supporting info if we have a plan to work on…
Ms Liu told the Tribunal she had not previously led a disciplinary area, and that she had concerns about leading a disciplinary area that dealt with surface water, since her training as a geologist had not prepared her for work of this kind. As the most junior person in the team it was not appropriate that she do this work. She said she was being forced to undertake the work of leading aspects of supporting information against her will and outside the scope of her PDS duties, as it was not my expertise. She characterised as a threat Ms Beynon’s statement in her email of 14 February I want to encourage you to carefully consider what you are capable of achieving and if that is likely to fit expectations. She said this was a threat because I didn’t have any other options.
Ms Liu’s PDS for the period 10 February-30 June 2014 was tendered. In this iteration of the PDS, her duties included:
– Lead the preparation of a disciplinary aspect of the supporting information (surface water or ground water) within the required timeframe…
– Lead a discreet component of Project Advice: Surface Water Skills and Knowledge Enhancement Project.
She told the Tribunal the reference to leading had been included in the PDS despite her disagreement. She complained to HR and to other people about this change but said I was ignored.
Ms Liu gave evidence to the Tribunal that she felt Ms Beynon and Ms Datta wanted to get rid of me from the team. She described the contents of Ms Beynon’s email of 14 February 2014 as an attempt to criminalise her by not allowing her to talk to her colleagues about her work. Both Ms Beynon and Ms Datta denied these suggestions. They both told the Tribunal that they were conscious of Ms Liu’s desire to leave the section but were prepared to support her if she decided to stay.
Ms Liu said she did not know if there were other APS5s in the team who were leading disciplinary aspects of projects. Ms Datta said that there were several APS5s leading disciplinary aspects of projects. Ms Beynon said she based her view, that the preparation of a disciplinary aspect was a reasonable expectation of an APS5, on 18 years of experience in the Department and by reference to what other APS5s in the area were doing.
In the following weeks Ms Datta engaged closely with Ms Liu over two projects facing the section, the Red Hill project and the Teresa Coal project. Ms Liu led various aspects of these projects. In a series of meetings and emails Ms Datta provided feedback to her on her work on the projects, making numerous suggestions for modification or improvement of the documentation Ms Liu was working on. Ms Datta told the Tribunal she took the opportunity to encourage Ms Liu when progress was made. Ms Liu said that Ms Datta’s role was to evaluate me, to assess me, not helping me. She felt offended by the intensity of Ms Datta’s focus on her work, which she described as criticism, but also conceded that Ms Datta had a point with respect to the clarity of Ms Liu’s expression, but not her style of writing.
Ms Datta gave evidence that her liaison with Ms Liu over this period convinced her that there were shortcomings in her performance, particularly with respect to her written work. The shortcomings related to timeliness, lack of clarity and lack of adherence to the section’s policy on style and formatting.
On 10 April 2014 Ms Datta spoke to Ms Liu to advise that she wanted to have a meeting with her to discuss concerns about her work. She sent Ms Liu an email that day explaining that the purpose of the meeting was to discuss some concerns about whether you’re on track to meet the “Lead the preparation of a disciplinary aspect of the supporting information (surface water or groundwater)”….KPI... The email also invited Ms Liu to nominate an observer of her choice at the meeting. Comcare argued that a meeting in this form was consistent with the Department’s policy framework on employee performance which permitted Regular and ongoing two-way feedback on the achievement of KRAs…
Ms Liu said she cried on receiving the email. She said she was shocked and upset to receive it; it did not set out the reasons why Ms Datta was concerned about her performance.
That meeting took place the following day, 11 April. It was attended by Ms Datta, Ms Liu and another officer as notetaker. Ms Datta informed Ms Liu that she believed she would not meet her KRAs as required under her PDS, and that Ms Datta would be initiating performance management of her. Ms Datta said that the meeting was conducted in a professional and courteous manner. Ms Liu agreed it was conducted courteously, but that Ms Datta was commanding throughout. She told the Tribunal she did not cry.
At the meeting Ms Liu was given a document entitled 3 steps to - Managing unsatisfactory performance, which outlined the process for managing underperformance by departmental employees. Ms Datta told the Tribunal that she informed Ms Liu at the meeting that she was applying Step 1 (Initial Action), which the document said should be used when performance issues have been identified … at any time during the PDS cycle. Ms Datta sent a follow-up email later that day to Ms Liu, outlining the essence of what the meeting had discussed. Minutes of the meeting were subsequently prepared and forwarded to Ms Liu to comment on. She told the Tribunal that the minutes were accurate.
Ms Liu was sent home by someone from HR shortly after the meeting. She took medical leave and flex leave before returning to work on 22 April 2014.
On 11 April 2014 Ms Liu requested Ms Beynon review her PDS. On 2 May 2014 Ms Beynon sent Ms Liu an email stating:
I have also reviewed your PDS and I think it on a par in terms of content with others in the section – and it does include a focus on discipline (lead). I think one aspect that would benefit from being addressed further is in terms of the heading ‘working with people’.
MEDICAL EVIDENCE
Although no doctors appeared to give evidence, several medical reports were tendered:
·Medical certificate completed by Dr Stephanie Ajulo, General Practitioner, dated 18 May 2016, and a report by her dated 20 June 2016;
·Report of Dr Catherine Oelrichs, Consultant Psychiatrist, dated 30 June 2016;
·Report of Dr Robert Hampshire, Consultant Psychiatrist, 29 June 2017 (erroneously dated 2 February 2017);
·Report of Dr Antonella Ventura, Consultant Forensic Psychiatrist, dated 31 July 2017; and
·Report of Dr Selwyn Smith, Consultant Psychiatrist, dated 22 January 2018.
Dr Ajulo’s medical certificate noted that Ms Liu consulted with another doctor at the practice on 14 April 2014 for distress at receiving an email which informed her about a meeting to do with her performance. In her report dated 20 June 2016 she noted that on 14 April 2014 Ms Liu had reported experiencing stress at work. Her level of stress was recorded as 32/50. She reported that her sleep was broken and that she was feeling moody, irritable and had suffered palpitations.
Dr Oelrichs examined Ms Liu on 23 June 2016. In her report she said that Ms Liu reported that she had been feeling psychologically unwell for about 2 years and diagnosed an adjustment anxiety and depressed mood. She considered the factors which contributed to this condition were present from April 2014.
Dr Hampshire examined Ms Liu on 6 April 2017. He diagnosed Major Depressive Disorder with mixed but mainly melancholic features. He concluded that her depression began sometime around 2014, and that her condition is directly related to the workplace harassment and bullying from her supervisor, Ms Datta.
Dr Ventura’s report of 31 July 2017 followed an examination of Ms Liu on 25 July 2017. Dr Ventura diagnosed major depressive disorder and considered that she started to develop a psychiatric condition around 11 April 2014 based on the information available. She opined that the performance management process and the loss of Ms Liu’s job in 2016 were the major contributing factors which caused her psychiatric condition. She also stated the events that arose from the performance management process and resulted in her termination contributed to her psychiatric condition fully. She added:
In my view her condition persists partly as a result of loss of face which is particularly significant given her ethnicity as well as the home difficulties which are a consequence of her having lost her job.
Dr Smith examined Ms Liu on 18 January 2018. In his subsequent report he diagnosed Major Depressive Disorder with heightened levels of anxiety. He opined that her adverse work related experiences... have been the substantial contributing factor to the development of her psychiatric disorder. He considered that the onset of her psychiatric condition occurred in approximately April 2014.
LEGISLATION
Section 14(1) of the Act states:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in s 5A(1) to mean:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
The term disease is, in turn, defined in s 5B as follows:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee…
ISSUES
Consistent with the three most recent psychiatric reports (Dr Oelrichs, Dr Ventura and Dr Smith), I find that Ms Liu suffers from major depressive disorder.
There is no dispute between the parties, and I so find, that Ms Liu suffered a psychological ailment (a disease pursuant to s 5B) and that her condition was contributed to, to a significant degree, by her employment at the Department. The examining doctors identified no factors outside her employment which contributed to this ailment. The sole question to be determined, therefore, is whether she suffered the condition as the result of reasonable administrative action taken in a reasonable manner in respect of her employment, such that the exclusion in s 5A applies.
The evidence strongly suggests that Ms Liu had suffered a psychological ailment by 14 April 2014, when a doctor examined her and determined that her level of stress was 32/50, that her sleep was broken and that she was feeling moody, irritable and had suffered palpitations. Her condition by then was outside the boundaries of normal mental functioning and behaviour: Comcare v Mooi (1996) 69 FCR 444. This condition is an ailment for the purposes of s 4. I note that the psychiatric evidence does not identify a date of injury with precision, most probably because it was more than two years after the events of February-April 2014 that she was first examined by a psychiatrist. However, all the psychiatric reports are consistent with a date of injury around April 2014. I find that she suffered her injury on or about 11 April 2014, the date of the meeting with Ms Datta where she was told she would be subject to performance management. This finding is consistent with the position put to the Tribunal by both parties.
Ms Liu’s representatives submitted that she may have suffered multiple psychological injuries during her succeeding two years as an employee of the Department. Evidence was tendered, and submissions were lodged, in support of that proposition. However, as no claim for workers compensation – much less consideration by Comcare – has occurred in respect of those later injuries, they are matters outside the purview of this decision.
Accordingly, the Tribunal must determine whether the administrative actions taken in respect of Ms Liu’s employment prior to and including 11 April 2014, actions which caused her psychological ailment, were reasonable administrative actions taken in a reasonable manner.
CONSIDERATION
Ms Liu appears to have been fairly comfortable and happy in her role as a project officer in the Department in the period before February 2014. Her performance appears to have been satisfactory, although her rating of Level 2 – Developing at Level in 2012/13 may suggest that there were some concerns among her supervising officers with respect to her performance in this period. She evidently took some pride in being rated Level 3 – Fully Effective in her February 2014 PDS.
The administrative action that was said to enliven the exclusionary provision in s 5A was the performance appraisal/management process to which Ms Liu was subjected between 7 February 2014 and 11 April 2014. This process began, in effect, with the arrival of Ms Datta as her immediate supervisor. At the meeting of 14 February 2014 between Ms Datta, Ms Beynon and Ms Liu, the expectation which had been flagged in her PDS – that she would lead the preparation of a disciplinary aspect of a project – was crystallised. It is clear that Ms Liu did not welcome or accept this development, just as it is clear her superiors believed the responsibility nonetheless accorded with her duty statement and was a reasonable expectation of an APS5.
There can be no doubt that leading the preparation of a disciplinary aspect was part of her duty statement. The Tribunal does not accept her evidence that the reference to doing so in the PDS was merely a suggestion which she could disregard. Ms Liu appeared to believe that the duty statement had to align with her abilities, whereas the reverse was in fact the case, based on the evidence of Ms Datta and Ms Beynon.
Against this background, the intensive interaction between Ms Datta and Ms Liu over the Red Hill and Teresa Coal projects in March and April 2014 can be seen as an attempt by her supervisors to transition Ms Liu to the level of responsibility foreshadowed in the 14 February meeting. The evidence suggests that her supervisors were aware of her dissatisfaction with this process, but were prepared to offer some support if she chose to engage with this new role.
The divergence between the expectations of Ms Liu and of her supervisors came to a head with the events of 10/11 April. In the course of those events Ms Datta indicated to Ms Liu that performance management was appropriate given the difficulties she was encountering in meeting the terms of her duty statement. The conveying of that news was probably the event which most directly contributed to the onset of her mental illness.
The process of addressing the nature and scope of Ms Liu’s responsibilities as an employee of the Department, a process which ran from February to April 2014, was clearly action taken in respect of her employment. The process centred on the clear requirement in her PDS to lead the preparation of a disciplinary aspect; against that contractual requirement, the evidence is consistent with shortcomings in her performance, giving rise to an administrative process to deal with those shortcomings. Action taken in such a context is plainly reasonable administrative action.
I also consider that the evidence amply supports the conclusion that the process was conducted in a reasonable manner. The Department’s expectations of her were set out in writing and were discussed with her directly on several occasions. Her feedback was invited and considered. The fact that she repeatedly told her superiors that she considered she was incapable of leading the preparation of a disciplinary aspect, and that those superiors insisted nonetheless that she engage with that task, does not demonstrate that the process was conducted unreasonably. She told the Tribunal that she was making an effort to perform the tasks set for her. The Department, however, was entitled to require her to achieve that performance, not merely to attempt it.
Ms Datta told the Tribunal that she took advice from the Department’s HR team at several points in this process, to verify the appropriateness of the steps she was undertaking in respect of Ms Liu’s underperformance. It is obvious that she and Ms Beynon expected Ms Liu to be unhappy with the process, and the process was evidently tailored to accommodate the employee’s sensitivities, up to a point.
In Comcare v Martinez (No2) 302 ALR 608 Robertson J held that administrative action did not become unreasonable merely because alternative reasonable courses of action were available to the employer. His Honour said (at [81]):
The further error of law which the applicant contends is evident in this paragraph goes to the issue of alternatives. In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.
In the circumstances of the present matter, it is frankly difficult to say how the administrative action dealing with Ms Liu could have been done more reasonably. If the premise is accepted – as I think it must be – that from February 2014 Ms Liu was not meeting the requirements of her duty statement, the process deployed to respond to that seems to have been appropriately executed and essentially beyond reproach.
Counsel for Ms Liu submitted nonetheless that there were four shortcomings in the process which take it outside the exemption in s 5A. For the reasons given below I cannot accept that these submissions are made out.
Unreasonable to expect Ms Liu to lead a disciplinary aspect
It was submitted that there was a change in early 2014 in the nature of the job Ms Liu was expected to do at the Department, and it was therefore unreasonable of her supervisors not to take into account Ms Liu’s clearly-articulated inability to undertake the new role. In particular, it was submitted that the nature of the job transmogrified from being research-focused to being focused on the provision of written advice, and that – for a person of non-English-speaking background – this placed a new and unreasonable performance expectation on her.
Central to this submission is the notion that the job Ms Liu was asked to do from February 2014 was essentially different to the job she had been required to do at the Department since 2007. I do not accept, however, that this premise is established. The evidence suggests that Ms Liu had done some written advising for the Department prior to February 2014, and that other APS5s in her area were already providing written advice – indeed, the uncontradicted evidence was that many were actually leading disciplinary aspects of various projects. Given her level of qualification – three Masters degrees – her seven years of experience in the Department and its expectations of her peers, it cannot be regarded as unreasonable that she too would eventually be called upon to provide written advice of a scientific nature. The transition that occurred in early 2014 from research to advising must be characterised as a shift in focus, not a change in the nature of her employment.
In connection with her submission on this point Counsel for Ms Liu referred to the Tribunal’s decision in Lynch and Comcare [2010] AATA 38. In that decision, Senior Member Creyke and Member Wilkins observed at [98]-[99]:
98. To date, the case law has largely been based on cases arising under the expression ‘administrative action’ in comparable legislation, in particular in South Australia, the Northern Territory and in Tasmania. In summary, the cases establish that administrative action can be constituted by a series of actions as opposed to merely one action. But if the injury arises from the worker’s inability to comply with the ordinary demands of the workplace – for example, the nature of the work causes stress - rather than from some specific instruction or demand of the employment, the expression has no application. As Doyle CJ said in Workcover Corporation of SA v Summers:
[T]he words ... “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties....
[S]tress caused by an inability to cope with the job itself ... is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker’s employment.99. In other words, ‘administrative action’ must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer.
The import of this contention is that what injured Ms Liu were not the actions of her employer, through Ms Beynon and Ms Datta, in addressing her shortcomings with respect to written advices but the fact of doing the written advices per se. Again, I do not accept this characterisation of the evidence. Ms Liu told her supervisors that she could embark on this new task if she had appropriate support and tolerance from them; it was her perception that this support was not forthcoming, that her attempts to do the work were subject to criticism and that she was ultimately subjected to performance management when she failed that ultimately triggered the onset of her condition. Significantly, the most likely date of injury was 11 April 2014, the date she was advised that she would be subject to performance management.
Inappropriate application of performance management process – Ms Liu had a performance rating of 3
Ms Liu argued that being subjected to performance management on 11 April 2014 was a breach of the Enterprise Agreement applicable to the Department. In support of this, she cited the following passage in the document 3 steps to - Managing unsatisfactory performance she was given on that day:
Managers should note that as per 5.43 of the Enterprise Agreement the following applies:
“Clauses 3.8 – 3.32 of the Agreement (Managing Unsatisfactory Performance) will apply to employees assessed as ‘unsatisfactory’ (rating of 1) under the DSEWPaC Performance and Development Scheme”.
Since a performance rating of 3, not 1, had been applied to her, she contended that the unsatisfactory performance provisions in the Agreement should not have been deployed.
This argument must be rejected. First, the words quoted do not support the interpretation asserted. The fact that the measures in question will apply to employees rated as Level 1 does not preclude their being applied to other employees as well. Indeed, on the next page of the document it stipulates that the measures should be used when performance issues have been identified… at any time during the PDS cycle. Secondly, Ms Datta confirmed that the broader interpretation was consistent with departmental practice.
Inappropriate application of performance management process – Ms Liu was an excess employee
Additionally, it was argued that Ms Liu was, in effect, an excess employee within the terms of the Enterprise Agreement, and that performance management is not to be applied to workers identified as excess employees. She ought, it was said, to have been dealt with via the provisions of Part 8 of the Agreement dealing with excess employees (voluntary redundancy and involuntary termination).
The Enterprise Agreement defines excess employee as follows:
Excess employee means an employee who is excess to the requirements of the Department if the delegate determines:
a. the employee is included in a class of employees employed in the Department, which comprises a greater number of employees than is necessary for the efficient and economic working of the Department;
b. the services of the employee cannot be effectively used, for example because of technological or other changes in the work practices of the Department or structural or similar changes in the nature, scope or organisation of the functions of the Department (other than for reasons set out in s 29(3)(b-h) of the Public Service Act 1999); or
c. where the duties usually performed by the employee are to be performed in a different locality, the employee is not willing to perform duties at the locality, and the delegate has determined that these provisions will apply to that employee.
This contention, too, must be rejected. Plainly, to be considered an excess employee within the definition there must be, in every case, a determination by the delegate specifically in respect of the employee designated as excess. The Tribunal’s attention was not drawn to any determination made in relation to Ms Liu, nor to any other provision of the Agreement providing for an employee to be deemed to be excess by some other mechanism. Even if there was a deeming provision, it is not clear that it would apply to Ms Liu, since her supervisors indicated that they wished her to stay in the section and develop her skills to take on greater responsibility.
Ms Liu should have been given details of her performance shortcomings prior to the 11 April meeting
Ms Liu’s evidence was that she was shocked and upset by the email she received on 10 April 2014 advising her that Ms Datta wanted a meeting to discuss concerns about her PDS. She said she cried on receiving it. Her submission was that the email should have set out the basis for these concerns, and that the failure to do so rendered Ms Datta’s conduct unreasonable.
In other merits review applications before the Tribunal dealing with mental injuries arising from performance management processes, I have from time to time observed counsel for applicants arguing that employees deserve to be told face-to-face about workplace underperformance, and that doing so through the impersonal device of a letter or email does not constitute administrative action taken in a reasonable way. Generally speaking, those arguments have merit. In the present case, I regard it as reasonable for Ms Datta to have left the substance of her concerns to the meeting itself. I consider that Ms Liu would have been at least as likely to suffer her injury if the subject matter of the meeting had been set down in writing beforehand. In any case, I note that the email was preceded by a conversation with Ms Liu in which the general nature of the upcoming meeting had been flagged; this would have been opportunity for Ms Liu to advise Ms Datta that she wanted her concerns set down in writing prior to the meeting.
The test in Comcare v Martin
Finally, Ms Liu argued that in making its reviewable decision of 15 September 2016, Comcare had erred in finding that it was sufficient that administrative action taken by the Department on 11 April 2014 was a cause, rather than the cause, of Ms Liu’s condition from that time: Lim v Comcare [2017] FCAFC 64.
It is to be conceded that Comcare failed in making the reviewable decision to apply the correct test of the relationship between reasonable administrative action and an employee’s injury. That test was set down by the High Court in Comcare v Martin [2016] HCA 43, when it found at [45]:
What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.
The error in the reviewable decision is understandable, given that Comcare’s decision was made some weeks before the High Court’s publication of its decision in Martin.
Notwithstanding that failure, it is the Tribunal’s role now to determine whether the reasonable administrative action which significantly contributed to Ms Liu’s ailment meets the test in Martin, such as to enliven the exclusion in s 5A.
There can be little difficulty, in the circumstances of this case, in reaching the conclusion that the test is satisfied. It is plain on the evidence, and was conceded by the parties, that the only matters which contributed to Ms Liu’s ailment were the employment-related events of February-April 2014. It is these events, and only these events, which could have significantly contributed to the onset of her ailment. Having found that these events consisted of acts by her employer which amounted to reasonable administrative action taken in a reasonable manner, it follows ineluctably that Ms Liu would not have suffered her injury but for the taking of that reasonable administrative action. It does not matter, on this view, if the events are regarded as a series of administrative actions rather than a single action, nor that her injury may have occurred earlier than 11 April 2014. On any construction the administrative action is an event without which she would not have suffered her ailment.
CONCLUSION
The reviewable decision of 15 September 2016 is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 4 September 2018
Date(s) of hearing: 20-21 August 2018 Date final submissions received: 21 August 2018 Counsel for Ms Liu: Mr Marcus Hassall Solicitors for Ms Liu: Adams & Co Lawyers Pty Ltd Counsel for the Respondent: Ms Kristy Katavic Solicitors for the Respondent: Australian Government Solicitor
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