Lord and Comcare (Compensation)
[2019] AATA 2965
•30 August 2019
Lord and Comcare (Compensation) [2019] AATA 2965 (30 August 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/2844
GENERAL DIVISION )Re: Belinda Lord
Applicant
And: Comcare
Respondent
DIRECTION
TRIBUNAL: The Hon. John Pascoe AC CVO, Deputy President
DATE OF CORRIGENDUM: 5 September 2019
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that:
1.the wording in paragraph [33] of the decision is changed to:
The question for the Tribunal in this case is whether SBS took reasonable administrative action, and whether or not that action was taken in a reasonable manner in respect of the Applicant. These questions must be considered in relation to the circumstances of this particular case.
..............................[sgd].....................................
The Hon. John Pascoe AC CVO, Deputy President
Division:GENERAL DIVISION
File Number: 2018/2844
Re:Belinda Lord
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:30 August 2019
Place:Sydney
The reviewable decision of the Respondent’s delegate dated 13 April 2018 is affirmed.
..[sgd]..........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
COMPENSATION – injury – ailment – where applicant suffered from a mental ailment – where injury was significantly contributed to by applicant’s employment – whether injury was suffered due to the employer’s reasonable administrative action taken in a reasonable manner – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5B, 14
CASES
Comcare v Martinez (No 2) [2013] FCA 439
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
30 August 2019
The Applicant has applied for review of the decision of the Respondent’s delegate made on 13 April 2018. This decision affirmed an earlier determination dated 30 November 2017 which found that the Applicant was suffering an injury, specifically ‘adjustment reaction with mixed emotional features’, which was significantly contributed to by her employment with the Special Broadcasting Service (‘SBS’). However, liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) was declined on the basis that one of the exclusionary provisions of the Act applied, namely that the injury was suffered as a result of reasonable administrative action taken in a reasonable manner.
BACKGROUND
The Applicant was born in 1969.
The Applicant began working for SBS as a hair and make-up artist in around 1994, initially as an employee to a sub-contractor. From about 1997 to 2004 she performed those duties as a sole trader. From about 2005 to 2016 she was working as a contractor to SBS through her own company. In January 2017 the Applicant became a casual employee of SBS, working about 30 hours per week.
Following a number of events and changes in the workplace which will be outlined later, the Applicant began to experience psychological symptoms. On 18 July 2017 the Applicant attended an appointment with her general practitioner, who diagnosed her with ‘mild anxiety and mild depression’. The Applicant’s symptoms appear to then have worsened and the Applicant was certified as unfit for work between 20 September 2017 and 15 November 2017.
On 20 September 2017 the Applicant submitted a claim for worker’s compensation. This claim was declined on 30 November 2017.
On 20 January 2018 the Applicant returned to work on a graduated return to work plan.
On 5 March the Applicant submitted a request for reconsideration of the Respondent’s determination. The reconsideration decision confirming the original determination was issued on 30 November 2017.
On 31 January 2017 the Applicant applied to the Tribunal for review of the reconsideration decision.
The Applicant continues to work at SBS and is currently determined as being fit to work four days per week.
ISSUES
The issue for determination in this case is relatively narrow. It was agreed by both parties that Ms Lord suffers from an ailment, namely adjustment disorder, and that this ailment was ‘contributed to, to a significant degree’ by the events in her workplace and therefore satisfies the definition of ‘injury’ under sections 5A and 5B of the Act.
The only issue is therefore whether the actions of SBS in relation to changes in the Applicant’s work fell within the exception contained in section 5A(1) of the Act which relevantly states as follows:
1In this Act:
“injury” means:
(a)a disease suffered by an employee;
………………………
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.
Section 5A(2) sets out a number of actions which are taken to be included within the definition of reasonable administrative action. In particular subsection (f) states as follows:
2For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
………………
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
EVIDENCE
It was acknowledged by both parties and all of the witnesses called to give evidence that the Applicant was, and continues to be, a very capable and valued employee of SBS. She is obviously a highly qualified and knowledgeable hair and make-up artist. The seeds of the current dispute date back to 2010. At that time the Applicant was working with Ms Pirri Wynyard. Clearly the Applicant had a very close working relationship with Ms Wynyard and was given additional duties by her in order to assist with the running of the department. I accept the evidence that Ms Wynyard referred to the Applicant as her Second In Command (2IC) and that other people in the department saw the Applicant in that role. It was however an informal arrangement, not recognised officially by SBS and although the Applicant took on extra duties she received no official recognition for doing so and this was not reflected either in her salary band or in any official SBS staff classification.
In this regard, I note in particular the email from Ms Andrea Muras to Ms Pip Spilsbury seeking information on this issue. Ms Muras’ email says:
Belinda says that you appointed her 2IC of the Hair and Make up department back a few years ago, when Piri left. I can’t find any documentation for this and would appreciate it if you could confirm what took place at this time. In particular what were the expectations of Belinda as the 2IC of the team.
In her reply, Ms Spilsbury states:
………
I can’t imagine that I would have “appointed” an official 2IC as this would probably mean a Band 4 role which I’m sure we didn’t create and we would have needed a relevant duty statement – which I can’t find. Is Belinda Band 3? I imagine she is with a Band 3 Duty Statement. I’ll keep looking but this doesn’t ring a bell for me in an official way. Unless we had an unofficial arrangement where Belinda stepped in when needed under a Higher Duties arrangement…..
On 16 August 2017 Ms Muras, as part of a discussion with the Applicant as to her hours of work, included the following in an email:
……. As I have previously advised I have not been able to find any documentation on file here at SBS which supports your appointment as 2IC.
……. Until such time that we can locate documentation from the time in which you were appointed to the position, unfortunately the lack of document does not support that this was a formal change in your employment.
Despite the above, I accept the Applicant’s evidence, as well as that of Ms Jill Love who gave evidence at the hearing, that she and others regarded the Applicant as being 2IC to Ms Wynyard. This evidence was supported by emails from other SBS employees annexed to one of the Applicant’s sworn statements dated 11 July 2019, which referred to the Applicant as being 2IC of the hair and make-up department. Despite the fact that there may not have been any official recognition of the Applicant as 2IC she was obviously seen this way by her colleagues in her department.
The situation changed when Ms Wynyard left SBS and the hair and make-up team was merged with another team within the organisation, which resulted in Ms Lesley Crawford becoming the Applicant’s direct manager.
Considerable evidence was given as to Ms Crawford’s very difficult personal circumstances during 2017. I accept Ms Crawford’s evidence that these difficulties, coupled with changes in the needs of the Department caused by changes in the SBS business model, led her to formally seek to hire a co-ordinator for the department who would be there from 9:00 to 5:00, Monday to Friday (the Applicant worked irregular hours, and was not always there during normal business hours) and who would deal with issues such as rostering which had previously been dealt with by the Applicant.
Ms Crawford spoke to her manager who then spoke to his superior in order to get approval to create the position and to spend the money.
Ms Crawford spoke to the Applicant in relation to the creation of the new position because the Applicant had been doing the rostering. It appears that had been complaints from other staff members about the way the Applicant had constituted the rosters during this period. The complaints were ultimately investigated by PriceWaterhouseCoopers (‘PWC’) which concluded that the evidence suggested that the Applicant had engaged in behaviour towards other employees ‘that was unreasonable and may have constituted workplace bullying’. PWC also concluded that none of the Applicant’s allegations in relation to bullying towards her from other SBS employees were substantiated.
Ultimately, Ms Farrah Bidgoli was considered the right person for the co-ordinator job. Ms Lord gave evidence that she first learnt of the decision to appoint a co-ordinator when a colleague drew her attention to a Facebook post advertising the position. She said she felt very hurt and confused at the time this occurred.
Ms Crawford however gave contrary evidence. She said that she tried to explain the need for the new position to the Applicant, and later, the reasons why she thought Ms Bidgoli was the right person for the job. Ms Crawford thought the Applicant would be happy to give up the rostering duties so that she could concentrate on her real area of skill, namely hair and make-up. At their discussion on 21 June 2017 it became immediately apparent that the Applicant was not happy and Ms Crawford became aware that the Applicant thought she had been demoted, although Ms Crawford did not see the appointment of a co-ordinator as any sort of demotion of the Applicant. In fact she thought the Applicant would be happy to give up the rostering and concentrate on her hair and make-up duties at which she was acknowledged to be very good. Ms Crawford gave evidence that she was distressed by the Applicant’s reaction to the changes.
I accept the evidence that there was no intention on the part of Ms Crawford to damage or demote the Applicant in any way when the decision was taken to appoint a co-ordinator and to give the co-ordinator some of the duties previously carried out by the Applicant. The Applicant, although she may have quite understandably regarded herself as 2IC to Ms Wynyard, did not in fact officially have any such role. The arrangement was at best was a day to day working arrangement between the Applicant and Ms Wynyard which was convenient at the time.
The evidence of Ms Andrea Muras corroborates Ms Crawford’s evidence as to the creation of the administrative role. Ms Muras also gave evidence that the changes mirrored what was happening in other areas of SBS and that there was a need for the co-ordinators role to be nine to five. As outlined above there was evidence that Ms Muras tried to investigate the correctness of the Applicant’s claims that she had been appointed as 2IC and also that Ms Muras worked closely with Ms Crawford and other Senior Managers at SBS in trying to resolve the Applicant’s complaints.
Ms Muras also confirmed Ms Crawford’s evidence that it was not unusual for a position such as that of the co-ordinator to be advertised on Facebook. Ms Muras also gave evidence that any change in the Applicant’s remuneration was due to the Applicant being unable to pick her own shifts rather than any change in her official remuneration. The evidence of Ms Muras in relation to the ongoing efforts of SBS to give the Applicant additional working hours within the limits of the restrictions on work hours prescribed by her doctors indicates a significant effort on the part of SBS to accommodate the Applicant’s requests in so far as it was possible.
The dry-cleaning incident
The Applicant gave evidence that in March 2017, prior to Ms Crawford going on leave, the issues of which she complained started with an issue related to dry-cleaning of an item of clothing worn by Ms Lee Lin Chin, a presenter at SBS. As a result, the Applicant thought that she had been bullied by a work colleague, Ms Kylie Gonder and that her manager, Ms Crawford did not deal with the issue appropriately. As outlined above, these complaints were ultimately investigated by PWC and found not to be substantiated.
In the Applicant’s opinion, this was the beginning of a process that led to what she considered to be a ‘demotion’. The Applicant gave evidence that Ms Crawford had said to her words to the effect of “you’re just a hairdresser”. This was denied by Ms Crawford. The Applicant lodged a bullying complaint against Ms Crawford and Ms Gonder in June 2017. At this point she also had meetings with Ms Andrea Muras, who at the time was employed as a Human Resources Business Partner, in relation to her concerns.
Ms Crawford gave evidence that she thought the dry-cleaning incident had been resolved after discussion with the Applicant and Ms Gonder, which resulted in “a group hug”.
DID THE ACTIONS OF SBS FALL WITHIN THE DEFINITION OF “REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF THE EMPLOYEE’S EMPLOYMENT” PURSUANT TO SECTION 5A(1) OF THE ACT?
Counsel for the Applicant submitted that it was irrelevant that the Applicant had never been formally appointed as 2IC of her department. He submitted that it was sufficient that she considered herself to be 2IC, and that in reality she was the 2IC until her responsibilities were changed upon the hiring of the new co-ordinator. This was an event which, in his submission, ‘blindsided’ the Applicant. Counsel further submitted that the decision to hire and appoint an administrative co-ordinator in the department was made urgently (and presumably without the opportunity for detailed consultation with the Applicant) because of Ms Crawford’s situation. Counsel drew the attention of the Tribunal to the fact that the position had been advertised on Facebook rather than more formal channels; although both Ms Crawford and Ms Muras gave evidence that this was not an unusual practice.
Counsel for the Respondent submitted that the arrangements between the Applicant and Ms Wynyard were informal and pointed out that her employment contract with SBS did not include any of the functions which she carried out informally whilst working with Ms Wynyard. Further, there was evidence given by both Ms Crawford and Ms Muras that these duties would have carried a higher classification and salary range, that in turn would need to be approved by SBS senior management.
Counsel for the Respondent also drew the Tribunal’s attention to the fact that there had been complaints against the Applicant, that these complaints together with her complaints against Ms Gonder and Ms Crawford were investigated by PWC, and that the Applicant and her lawyers had participated in this process. I have previously noted the outcome of the PWC inquiries. Counsel for the Respondent submitted that the Applicant’s concern was really a result of her losing control of the rosters which affected her income because she could not roster herself onto the most lucrative shifts, rather than the manner in which she was treated. I note that this was denied by the Applicant.
The question for the Tribunal in this case is whether the Respondent took reasonable administrative action, and whether or not that action was taken in a reasonable manner in respect of the Applicant. These questions must be considered in relation to the circumstances of this particular case.
Further, In Comcare v Martinez (No 2) [2013] FCA 439, Robertson J noted at [81] that there may be more than one way of ‘doing things reasonably’ and that the issue is not whether things ‘could have done more reasonably’.
At [83] Robertson J agrees with Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056, who said:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
I accept the evidence of Ms Crawford as to the circumstances in which changes were made to the Applicant’s role within SBS as a result of the hiring of the administrative co-ordinator. In particular, I accept the evidence that the change was made partly as a response to changes in the work requirements of SBS, driven by changes in the industry, and as a result of Ms Crawford’s personal circumstances which left her needing assistance at work so that she could devote more time to her husband during a period of serious illness. I accept Ms Crawford’s evidence of the need for the co-ordinator to be present at SBS during normal working hours that is from nine to five, each working day of the week. These were not the hours worked by the Applicant.
I also accept Ms Crawford’s evidence that none of the changes were made in order to damage the Applicant in any way. Ms Crawford went to some lengths in her evidence to make it clear that she had great respect for the Applicant’s ability as a hair and make-up artist and a member of her team. I accept that Ms Crawford was genuinely upset and concerned by the Applicant’s distress when the changes in the Applicant’s employment were made.
Ms Crawford’s evidence is corroborated by the findings of PWC. A letter from SBS was provided to the Applicant on 19 April which summarised the PWC report as follows:
…………
·while your role assisting with rostering was removed from you, this was a legitimate and lawful decision taken by Ms Crawford for proper business-related reasons and while Ms Crawford’s consultation with you could have been more extensive, it did not amount to bullying;
·your role in seeking to resolve the dry cleaning issue for Ms Chin fell outside of the scope of the role you were engaged to perform, and there is no evidence to verify your claim that Ms Gonder bullied you;
·any changes to the shifts allocated to you following the appointment of a co-ordinator to attend to the rostering function were appropriate and consistent with the basis on which you were employed (as a casual employee, and then as a part-time employee) and do not represent any form of bullying of you;
·in all of the relevant circumstances, any change by Ms Crawford in the way she managed you was not unreasonable; and
·the allegation that Ms Muras made or defended disparaging comments about you being “just a hairdresser” were found not to be substantiated.
The Applicant gave evidence that she did not know of any proposed changes until a colleague contacted her when the position was advertised on Facebook. This is at odds with the evidence of both Ms Crawford and Ms Muras who gave evidence that the possible changes and the employment of a co-ordinator was discussed with the Applicant prior to the decision being implemented. The evidence of Ms Crawford and Ms Muras was supported by a file note prepared by Ms Crawford and dated 15 May 2017 which was before the Tribunal.
I note further that all of the people involved in the department including the Applicant, Ms Crawford and Ms Gonder worked very closely together, in fact their desks were either contiguous to or opposite each other. This supports the evidence of Ms Crawford that anything happening in the department would have been known to all.
I accept that the changes were discussed with the Applicant and the processes which Ms Crawford followed which led to the creation of the co-ordinators role were consistent with normal practice at SBS, including her engagement with the Human Resources department and her senior manager. It is difficult to see any alternative to the steps which were followed by Ms Crawford and Ms Muras. This is not to deny that these actions caused a great deal of distress to the Applicant.
I note further that there were negotiations which I believe were conducted in good faith between the Applicant and SBS to try and address her concerns and to give her additional hours, and that the Applicant put forward a number of matters for consideration as part of this process. It is relevant to note in the context of reasonableness that these actions occurred over a lengthy period of time, with discussions taking place on a regular basis.
The processes adopted by SBS appear to have been open and entirely consistent with normal practice. In all of the circumstances, it was reasonable for SBS to appoint an administrative co-ordinator in the department in order to reflect the current requirements of the business, perhaps made more urgent by Ms Crawford’s personal circumstances. The normal processes within SBS for creation of the new role were followed and the need for the position was justified to senior management in the normal way. There was nothing unusual in the procedures adopted; rather they appear to have been open and transparent.
I accept the evidence that the Applicant was informed right from the beginning of the process and that efforts were made to address her concern and explain the need for the position to her along with the reasons someone else was considered suitable for the role once a selection had been made. The position was complicated by the Applicant’s unwillingness to engage with Ms Crawford or the new person, as a result of her understandable distress of what she considered to be a demotion.
It must also be accepted that the rostering duties in particular were never officially part of the Applicant’s formal role, but were simply carried out as a result of an understanding between the Applicant and Ms Wynyard, which could only ever be described as informal.
The findings of PWC as an independent investigator must be given considerable weight. PWC conducted what appears to extensive internal review with interviews with the Applicant and all of the other relevant parties. Their findings strongly support the evidence of Ms Muras and Ms Crawford.
DECISION
I find that the actions taken by SBS were reasonable administrative action carried out in a reasonable manner. They therefore meet the criteria of the exception under section 5A(1) of the Act.
The decision under review is affirmed.
I certify that the preceding 48 (forty - eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
..............................[sgd]..........................................
Associate
Dated: 30 August 2019
Dates of hearing: 29 & 30 July 2019 Counsel for the Applicant: Mr J Mrsic Solicitors for the Applicant: Carroll & O'Dea Lawyers Counsel for the Respondent: Mr M Gollan Solicitors for the Respondent: Lehmann Snell Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Statutory Construction
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Judicial Review
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Causation
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