Loane and National Australia Bank
[2011] AATA 252
•15 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 252
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5028
GENERAL ADMINISTRATIVE DIVISION ) Re Ms Sharon Loane Applicant
And
National Australia Bank Ltd
Respondent
DECISION
Tribunal M D Allen, Senior Member & Dr I Alexander, Member Date 15 April 2011
PlaceSydney
Decision 1. The decision under review is SET ASIDE and the Tribunal substitutes its decision, namely that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the work-caused injury of Adjustment Disorder.
2. The Respondent is to pay the Applicant’s costs.
.................[sgd]......................
M D Allen, Presiding Member
CATCHWORDS
WORKERS COMPENSATION: No dispute Applicant suffered from Adjustment Disorder. Was illness caused or materially contributed to by reasonable administrative action reasonably taken. Decision under review set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, S 4, 5A, 14.
CASES
Westgate v Australian Telecommunications Commission (1987-8) 14 ALD 367
REASONS FOR DECISION
15 April 2011
M D Allen, Senior Member
1. By application made 22 October 2009 the Applicant sought review of a “reviewable decision” that rejected her claim to have acute anxiety and depression recognised as a disease that arose out of, or in the course of, her employment with the Respondent.
2. There is no doubt that the Applicant suffers from a disease that did arise out of, or in the course of, her employment. In a report to the Respondent dated 19 May 2010, psychiatrist Dr Synnott states:
“In my opinion in the context of the workplace situation, Ms Loane subsequently developed sufficient psychological symptoms to meet the diagnostic criteria of an Adjustment Disorder”.
3. For its part, the Respondent has not sought to dispute that diagnosis and the cause of the Applicant’s illness, but has rejected the Applicant’s claim on the basis of the exemption provided by section 5A of the Safety, Rehabilitation and Compensation Act 1988 (“SRC”), namely that the said disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
4. Although the Respondent pointed to two incidents which it regarded as evidencing reasonable administrative action involving the Applicant, to understand those events it is necessary to canvass the history of the Applicant’s employment with the Respondent.
5. The Applicant was originally employed by the Respondent in 1990. Her initial position was that of a teller, then she was promoted to Head Teller, a position she held at Liverpool, Bankstown Plaza and Ingleburn branches of the National Australia Bank (“NAB”). In 1993 she was promoted to the position of Securities Officer at Ingleburn Branch and in 1994 transferred to Campbelltown Service Centre Branch to take up the position of Securities Officer and Personal Lending Officer. In 1995 she returned to the Ingleburn Branch.
6. A year or so after returning to the Ingleburn Branch the Applicant resigned from the NAB to take up a position with the Australian Defence Credit Union (“ADCU”). After being employed with the ADCU the Applicant commenced her own business as a masseuse but in 2003 returned to employment with the NAB. A factor in this move was that when previously employed by the NAB she had been happy in her employment.
7. After recommencing employment with the NAB the Applicant received several promotions but in January 2006 she spoke to a Mr Barry Butt regarding expected restructuring within the NAB and he encouraged the Applicant to apply for a position in Business Banking. Prior to this, the Applicant’s experience had been in Retail Banking. At the time she applied for a position in Business Banking, Mr Butt assured her that she would be at the Campbelltown office and she would receive one-on-one training and be sent on courses including a course known as the LendSmart course.
8. The Applicant was however appointed to a position at the Liverpool Business Centre as an “Associate” to a Ms Michelle Wainwright (nee Wafer). Ms Wainwright allocated to the Applicant the work she was expected to complete.
9. The Applicant had difficulty in appreciating just what Ms Wainwright required of her and also became overwhelmed by the tasks she was expected to complete as she felt she was not getting sufficient training to understand her role.
10. A particular source of concern was the completion of the LendSmart course which the Applicant understood she was supposed to complete in the first six months but she was not sent on that course within that timeframe.
11. The failure to attend the LendSmart course made the Applicant anxious and she also considered that she was overworked because of the volume of business within Ms Wainwright’s portfolio. In cross examination the Applicant conceded that she was concerned because she was, in her opinion, overworked and not getting her work done.
12. That the Applicant was struggling with her duties was made clear by Ms Wainwright in her evidence. In reply to a question by the Tribunal she said that the Applicant was not coping with the actual functions involved in the performance her work.
13. We do not intend to canvass all the evidence in this matter. What is readily apparent from the evidence, particularly the evidence of the Applicant’s immediate superior, Ms Wainwright, is that the Applicant for whatever reason, possibly because she was in an area, namely Business Banking, with which she was not familiar, found that the job she had been given was beyond her capabilities. Ms Wainwright said of the Applicant that she had asked for more one-on-one training and had become distressed when she was not sent on training courses which she regarded as necessary for her to perform her duties.
14. What we find difficult to understand is how the Applicant, who had hitherto had an apparently successful career within the NAB, and was apparently so well thought of as to be encouraged to apply for her position, came to be in a situation where even the Respondent’s psychiatrist acknowledges that her work at the NAB has led to an anxiety state.
15. During the course of her cross examination, Ms Wainwright made the following concessions, namely that although the Applicant was very capable she had struggled with her training and she (Ms Wainwright) had come to the conclusion that it was just impossible for the Applicant to learn the more complicated tasks.
16. A key incident the Respondent points to as being reasonable administrative action that materially contributed to the Applicant’s illness is the so called “ambergate” imposition.
17. As we understand the evidence in general terms an “ambergate” is a term used by the NAB to indicate to an employee that their performance is unsatisfactory. It can have implications regarding the employee’s salary and also their continued employment with the bank.
18. On 17 March 2009 the Applicant’s superior, Michael Gorman, imposed an “ambergate” upon the Applicant because she had neglected to change on a Monday morning the interest rate sheets which are displayed in the customer area of the Business Banking Centre at Liverpool.
19. The requirement to display accurate interest rates sheets is one that is imposed upon financial institutions such as the NAB by the Australian Prudential and Regulatory Authority.
20. Apparently there had been some laxity in staff attending to this requirement so that on 4 March 2009 Mr Gorman had sent an email to all staff stating inter alia the necessity to change interest rate sheets, and adding:
“Please note that Compliance Quality Gate rating will be reviewed for anyone responsible for non-compliance in the future”.
21. On Monday 16 March 2009 the Applicant failed to change the interest rate sheets. In evidence she explained that she had been occupied in trying to find a set of missing keys, which another staff member had taken to an off-site training day. Apparently without these keys some safes containing documents could not be opened.
22. Mr Gorman denied having made up his mind to issue the Applicant with an “ambergate” prior to hearing her reasons for failing to comply with his direction regarding interest rate sheets. We do not accept his evidence as it conflicts not only with the evidence of the Applicant but also the evidence of Ms Wainwright, who said in evidence in chief that Mr Gorman had told her, before his meeting with the Applicant, that he would be “putting an amber rating.”
23. This evidence is also corroborated by the tenor of the email of 4 March 2009 forwarded by Mr Gorman to staff.
24. We find that the incident of 17 March 2009 was not reasonable administrative action taken in a reasonable manner as we are satisfied that Mr Gorman had determined to impose an “ambergate” prior to hearing from the Applicant as to why she had not undertaken the required task.
25. Both Mr Gorman and Ms Wainwright have made statements in which they disparage the Applicant’s commitment to her position. An example is at document T25 where Mr Gorman and Ms Wainwright say of the Applicant:
“Sharon was not required to formally train Simon and Sally as stated as she did not have the capacity to do this. Simon and Sally merely observed Sharon and undertook some very basic tasks”.
This statement must be compared to the Applicant’s performance review for the 2006-2007 year where Ms Wainwright writes:
“Your assistance & initiative in undertaking the training for Simon is to be commended. The training you have provided to Simon has greatly impacted the clean up process within our portfolio & in the last couple of months has enabled you to take on more complex tasks & has freed up your own time for learning. Training Simon will not only give him a solid foundation from which to start in a permanent role but will also enable us to spend more time on your own development & complete the clean up process of the portfolio”.
26. Other comments in that document regarding the Applicant read:
“This is a great result & could not have been achieved without your assistance in handling customer inquiries & your commitment to meeting customer needs. Your commitment to handling all phone inquiries has given me the ability to devote my time to completing lending applications, clearing watch loans & following up opportunities & has provided us with a good base for the new financial year.”
27. For the 2007-2008 year comments regarding the Applicant include:
“Results in our current years Service Experience Research Program have scored 80%. This is a sound result which would not have been achieveable without your assistance in handling customer inquiries & your commitment to meeting customer needs.
…You have sound skills when dealing with general customer inquiries, but further development is still required with business knowledge & the build up of your technical skills. …Your phone skills have been important when contacting customers to offer new products or deliver a more suitable product to satisfy their needs.”
28. To our mind those are not comments applicable to someone who is not attempting, to the best of their ability, to undertake the tasks of their employment.
29. The final event before the Applicant totally decompensated and was diagnosed with a psychiatric illness occurred on Friday 1 May 2009.
30. The Applicant had been on leave for two weeks and understood that her work would be reallocated during her period of absence. On return to work on 27 April 2009 she found that this had not occurred, resulting in work that remained outstanding. She was instructed by Ms Wainwright that this work had to be completed by 30 April 2009 or she would be placed on a “warning”.
31. The Applicant completed the tasks on the afternoon of Thursday 30 April but the work done was not accepted by Ms Wainwright, apparently as tax file numbers had not been removed from some copied documents.
32. The non-approval upset the Applicant and she burst into tears feeling overcome. The next morning, namely Friday 1 May 2009 the Applicant was informed by Ms Wainwright that she was obviously not coping. A discussion then took place about the Applicant’s training.
33. Ms Wainwright stated that at the time of this discussion the Applicant was upset and was crying. She said the Applicant asked her if she just didn’t want to work with her. The Applicant then left. As Ms Wainwright said:
“I felt, obviously, that she was upset and she didn’t want to continue the conversation so I didn’t push it.”
34. It is not disputed that after this episode the Applicant left the bank and attended upon her General Practitioner (“GP”). Currently she is still absent from work and no Return to Work Program has been offered.
35. In a statement dated 5 June 2009, Ms Wainwright says of the 1 May 2009 meeting:
“As she got to the door I indicated I would need to put her on notice”
Whereas in the document that became document T25-26 which is a joint statement by Ms Wainwright and Mr Gorman, paragraph 118 reads:
“Sharon was not advised that Michelle Wainwright would be recommending a warning”.
36. Unfortunately this discrepancy was not addressed in evidence but it seems that it is merely a matter of semantics as to whether a person is placed “on notice” or recommended for a “warning”. We therefore accept the Applicant’s evidence that she understood Ms Wainwright to say that she would be recommending that Mr Butt and Mr Gorman issue her with a warning.
37. We do not regard the meeting that took place between the Applicant and Ms Wainwright on 1 May 2009 to constitute administrative action. As was stated by Mr Gorman in a document dated 29 May 2009:
“Specific meeting of 1/5/09 is deemed to be a normal business conversation between a Partner and Associate”.
38. As pointed out by Davies J in Westgate v Australian Telecommunications Commission (1987-8) 14 ALD 367 at 372 quoting Pincus J in O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234, namely that it is sufficient that the employment contributes in a material way to the contraction of a disease it is not necessary to establish fault on the part of an employer or any unusual stress or factor or special circumstance in the employment itself.
39. In this matter a hitherto well-regarded employee of the Respondent has found that the position for which she was encouraged to apply has involved skills beyond her current capabilities and as a result has been injured in her employment. The Respondent’s own expert recognises this and as pointed out in Westgate supra the Applicant does not have to show fault on the part of the employer.
40. As to reasonable administrative action, one incident relied upon by the Respondent to make out this exemption did not amount to administrative action and the other incident was not reasonable administrative action taken in a reasonable manner.
41. The decision under review is SET ASIDE and the Tribunal substitutes its decision, namely that the Applicant is entitled to compensation pursuant to the SRC Act for the work-caused injury of Adjustment Disorder. The Respondent is to pay the Applicant’s costs.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen, and Dr I Alexander, Member.
Signed: ..........[sgd].........................
K. Lynch, AssociateDates of Hearing on the Papers 7, 8, 9 February & 29 March 2011
Date of Decision 15 April 2011
Counsel for the Applicant Mr P Stockley
Solicitor for the Applicant Paul A Curtis & Co Solicitors
Counsel for the Respondent Mr M Snell
Solicitor for the Respondent Sparke Helmore