Maletic and Comcare (Compensation)
[2016] AATA 210
•05 April 2016
Maletic and Comcare (Compensation) [2016] AATA 210 (05 April 2016)
Division
GENERAL DIVISION
File Number(s)
2014/6524
Re
Tammy Maletic
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Bernard McCabe
Date 05 April 2016 Place Brisbane The decision under review is affirmed.
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Deputy President Bernard McCabe
Catchwords
COMPENSATION – aggravated psychiatric condition – interaction with superior – whether reasonable administrative action or operational action – whether interaction concerned “conditions in” which the employee worked – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
REASONS FOR DECISION
Deputy President Bernard McCabe
05 April 2016
Tammy Maletic developed (or aggravated) a psychiatric condition as a consequence of an interaction with a superior at work on 2 June 2014. Ms Maletic says Comcare is liable to pay compensation for that injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Comcare denies liability. It relies on the exclusionary provision in s 5A of the Act which is available where the injury is the result of reasonable administrative action taken in … respect of an employee’s employment. The outcome of this case turns on whether the employer was engaged in reasonable administrative action when the officer interacted with Ms Maletic on 2 June 2014.
I am satisfied the employer behaved reasonably, fairly and sensitively when the officer initiated the interaction with Ms Maletic on 2 June 2014. I accept Ms Maletic’s behaviour was disruptive, and the manager in question understandably felt the need to provide direction. I am also satisfied the manager in question conducted herself appropriately and reasonably in the face of Ms Maletic’s difficult behaviour during the course of the short interaction. It follows I am satisfied it was reasonable for the employer to undertake the action, and that the action was carried out in a reasonable fashion. Comcare is therefore entitled to rely on the exclusionary provision provided I can be satisfied the manager’s behaviour is properly characterised as administrative action. But is it?
That question requires that I consider the often elusive distinction between administrative action and other forms of action which are often referred to as operational action. My decision turns on the wording of the exclusionary provision in s 5A. My interpretation of that section is informed in particular by the reasoning of the Full Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463.
I am satisfied the manager’s conduct is properly characterised as administrative action. I explain my reasons below.
What happened?
Ms Maletic has been employed by the Defence Housing Australia (the DHA) in Townsville for many years. She is a leasing officer. During the course of 2014, the DHA’s office was being refurbished. A manager developed a plan for moving and accommodating staff in the building while the renovation work went on. The applicant was aware of this process. She informed the manager by email dated 16 January 2014 that she suffered from anxiety and that she experienced difficulty in crowded spaces. She asked that consideration be given to seating her in a location “away from the centre of the office and near a window”: exhibit one at p 50. Ms Maletic was not the only staff member who reported special needs that were to be taken into account when devising a seating plan. Another staff member with a hearing impairment also made contact with the manager: exhibit one at p 51.
The manager told Ms Maletic of temporary seating arrangements on 28 March 2014. The move was to commence on 1 April. Ms Maletic said she was anxious about the change because it would see her located in the centre of the office, but she agreed. She said she was discomfited when the move commenced early, on 31 March. She saw her treating general practitioner that afternoon: exhibit 3. The applicant and members of her team were subsequently moved into a smaller office that had been temporarily vacated by a manager.
Ms Shane Humphreys was the acting business manager in Townsville. She took over responsibility for the seating allocation process in May 2014. Ms Maletic recalled Ms Humphreys informing her on 19 May 2014 that she and members of her team would be moved to a pod of workstations towards the middle of the office floor. The pod was comprised of three workstations on each side of a central spine.
The applicant said Ms Humphreys allowed her to choose her workstation within the pod. In her oral evidence, she insisted she initially chose a position at one end of the pod. The position was subsequently identified as desk 7 on the floor plan reproduced in exhibit one at p 58. She said she did not want to sit to the left in the middle of the pod at desk 6 because she did not like the idea of sitting between colleagues. But the applicant said she felt uncomfortable at her new desk because her back was towards the centre of the office. She then asked if she could move to the other side of the pod. Ms Maletic said Ms Humphreys approved the move: exhibit 3.
Ms Humphreys remembered the discussions differently. She said in her oral evidence the applicant was told there were six desks at the pod but only four of them were available to members of Ms Maletic’s team. The other two desks – the positions located at the end of the pod closest to the outside of the office – were reserved for members of another team headed by Ms Jeanette Clifforth. (The rest of Ms Clifforth’s larger team were seated nearby in adjacent pods. Ms Humphreys and Ms Clifforth both explained in evidence it would be disruptive to Ms Clifforth’s team if the two seats allocated to Ms Clifforth’s team were to be occupied by anyone else. Ms Humphreys said in her evidence that the allocation of the seats was a “business decision”.) One of the two desks reserved for Ms Clifforth’s team was known as desk 9. Ms Humphreys recalled Ms Maletic sitting at desk 7 in late May, then asking to move to the other side of the pod. Ms Humphreys recalled she told Ms Maletic that she could move to any of the four positions at the pod which had been reserved for members of Ms Maletic’s team, but Ms Humphreys insisted she made it clear that the other two desks at the pod – including desk 9 – were not available.
Ms Humphreys was in Canberra during the week beginning 26 May 2014. While she was away, she received an email from Ms Clifforth. Ms Clifforth said Ms Maletic had occupied desk 9 at the pod. In her statement (exhibit 9), Ms Clifforth said she had told Ms Maletic on 26 May that desk 9 was reserved for members of her team. Ms Clifforth said she did not ask the applicant to move immediately but told the applicant she would raise the issue with Ms Humphreys. Ms Clifforth said she recalled the applicant becoming visibly upset. Ms Maletic recollected the interaction with Ms Clifforth differently. In her ‘record of events’ (exhibit 5), she said Ms Clifforth approached her on a second occasion about the seating arrangements and it was only on the second occasion that she suggested there was a difficulty with Ms Maletic occupying desk 9. As it happens, I do not think anything turns on the difference in accounts because – according to either account – Ms Maletic was aware of an issue over her occupation of desk 9 in advance of her conversation with Ms Humphreys.
Ms Humphreys returned on 2 June 2014. At the commencement of the day, she approached Ms Maletic who was already seated at desk 9. Ms Maletic said Ms Humphreys “stood over me” and said words to the following effect: “You have to move from this desk by tomorrow”. Ms Maletic said she asked why she had to move as she believed Ms Humphreys had previously approved the move to desk 9. Ms Humphreys allegedly responded: “Tammy, the HMC does not revolve around you”. In her statement, the applicant said she “felt immediately degraded and demeaned as this incident happened within earshot of other staff members and contractors”: exhibit 3 at [11]. She supplied additional details about the interaction in her ‘record of events’ (exhibit 5). She said:
This conversation was delivered in a very stern and rude manner, unbecoming of a HR representative or a manager. Shane stated along with very clear and intimidating hand gestures that [I would be required to move from desk 9 back to one of the other seats in the pod].
In her oral evidence, Ms Maletic described the hand gestures in slightly more detail. She said Ms Humphreys pointed her finger at the applicant and pointed to the other desks, and also folded her arms. Ms Maletic also said Ms Humphreys’ body language was “hostile” and “aggressive”, as was her tone of voice. Ms Maletic recalled Ms Humphreys’ neck was going red with anger. Ms Maletic also said Ms Humphreys spoke in a raised voice and yelled at her at one point during the course of the interaction which lasted between a minute and 90 seconds. Ms Maletic insisted in her oral evidence that she did not refuse to move from desk 9 when asked to do so; she simply asked why it was necessary. (I note the applicant offered a detailed explanation in her statement as to why the allocation made no business sense: see exhibit 5. She clearly had strong opinions on the matter.) She said Ms Humphreys repeated her remark that “The HMC does not revolve around you, Tammy”.
Ms Julie Neilsen, a friend and co-worker of the applicant, gave evidence by telephone at the hearing. She also provided a statement (exhibit 7). Ms Neilsen was sitting at the same pod as Ms Maletic - albeit on the other side of the pod, so her view of Ms Maletic was obscured by the partition - when the interaction between Ms Maletic and Ms Humphreys took place on the morning of 2 June 2014. Ms Neilsen agreed in her statement she did not hear the dialogue that passed between the applicant and Ms Humphreys because of background noise. She also said in her oral evidence that she was wearing a headset.
Interestingly, Ms Maletic said in her oral evidence that the construction work in the office had ceased when Ms Humphreys was speaking to her. Ms Maletic expressly denied that Ms Humphreys needed to raise her voice, much less yell, because of excessive background noise. If that is so, it is surprising Ms Neilsen did not hear that part of the exchange, at least, even if she was wearing a headset.
Ms Neilsen claimed she witnessed “aggressive body language from Ms Humphreys towards Ms Maletic”, “angry facial expressions [from Ms Humphreys]” and “intimidating hand gestures and pointing from Ms Humphreys as she stood over Ms Maletic whom was seated at her desk”: exhibit 7. She repeated the substance of this account in cross-examination. She added that she saw Ms Maletic stand at the end of the interaction and walk out: before that point, she could not see the applicant’s face.
Ms Neilsen was asked about an earlier account of the interaction she had provided to a workplace investigator who was looking into the incident. The investigator, Mr Knapp, had conducted a telephone interview with Ms Neilsen. Ms Neilsen’s answers were recorded in a set of notes the investigator subsequently showed her to confirm their accuracy. The details of the notes were put to Ms Neilsen during cross-examination. Ms Neilsen agreed she told the investigator that Ms Humphreys remained calm while she was engaged in her discussion with the applicant. When asked to explain the discrepancy between that account and the one in her statement, Ms Neilsen admitted she had not told the truth to the investigator, but wanted to come clean now. She said she was afraid when she provided the information to the investigator that there would be repercussions; she appeared to have mastered that fear by the time these proceedings commenced.
Ms Humphreys gave a different account of the interaction. She said in her oral evidence that she was aware Ms Maletic suffered from anxiety and approached her carefully on the morning of 2 June. She denied speaking in an abrupt or aggressive or hostile tone. She agreed she may have used hand gestures. She said she often spoke “with her hands” - I observed as much while she was in the witness box – but she denied the gestures were threatening or inappropriate. She agreed she may have folded her arms. She insisted she did not raise her voice or speak angrily to Ms Maletic, and she denied saying words to the effect “The HMC doesn’t revolve around you, Tammy”. She said she gave a clear direction but delivered it sensitively. She added that she decided to terminate the short conversation after it became apparent the applicant was becoming agitated. Ms Humphreys said she formed the view it was not appropriate to continue the conversation on the floor where other people might overhear.
Ms Clifforth did not observe the exchange between the applicant and Ms Humphreys but she was present in the aftermath. She recalled in her evidence that she was standing with Ms Humphreys on the floor talking about other matters when the applicant approached Ms Humphreys and said she (the applicant) had received permission to work from home. Ms Clifforth confirmed that Ms Humphreys did not appear agitated or angry in the aftermath of the conversation with the applicant.
There are anomalies in the accounts offered by Ms Maletic and Ms Neilsen which are difficult to explain. Ms Neilsen said she did not hear the exchange which occurred less than 150 centimetres away from where she was seated because of background noise. But the applicant says there was no background noise from construction work at the time, and Ms Humphreys shouted at the applicant. Ms Neilsen has provided two different accounts of the conversation: the version provided to the workplace investigator which supports Ms Humphreys account, and the more recent version which supports her friend, Ms Maletic. Her claim that she gave a false account to the investigator because she was fearful but managed to master the fear to give evidence in these proceedings is not especially compelling.
Given the questions over those accounts, I prefer the evidence of Ms Humphreys. Her evidence was not shaken in cross-examination. Her claim that she informed Ms Maletic that only four desks were available in the pod – but not desk 9 – is consistent with the account of Ms Clifforth, and appears to be consistent with the seating plan discussed in evidence that saw Ms Clifforth’s team being seated nearby. The evidence of Ms Clifforth suggests Ms Humphreys remained calm when the two of them talked shortly after the interaction with the applicant on 2 June. If Ms Humphreys had become angry with Ms Maletic, one would expect her demeanour to reflect that fact when talking with Ms Clifforth shortly afterward. While it would be understandable if she were frustrated by Ms Maletic’s uncooperative behaviour, it seems inherently unlikely that an experienced manager would allow that frustration to show to the extent the applicant suggests in response to what was really a minor matter.
I would add that Ms Humphreys’ behaviour in the witness box tended to confirm she was not given to sudden outbursts or expressions of exasperation. She retained her equanimity and composure when pressed in cross-examination. She made appropriate concessions – about her hand gestures and folded arms, for example – which were consistent with her being a witness of truth.
Did Ms Humphreys undertake reasonable administrative action?
I have already said I would regard Ms Humphreys’ behaviour on the morning of 2 June as reasonable. She was obliged to speak with Ms Maletic about her presence at desk 9 given that desk had been allocated to another team. Ms Maletic knew there was an issue over seating: even if she had somehow misunderstood the arrangement with Ms Humphreys before Ms Humphreys went away, her own account of the discussion with Ms Clifforth while Ms Humphreys was away meant she (Ms Maletic) knew she might have to move: see exhibit 5. She could not have been surprised that Ms Humphreys would approach her when Ms Humphreys returned on 2 June.
I am also satisfied the administrative action – if that is what it was – was carried out in a reasonable way. I prefer Ms Humphreys’ evidence as to how she approached the applicant on 2 June and asked her to move back to one of the allocated seats. I do not accept Ms Humphreys behaved aggressively or inappropriately. It is unclear whether the applicant exhibited the same restraint: I note Ms Humphreys said she decided to terminate the brief conversation when it became apparent the applicant was becoming upset. Ms Humphreys’ account of Ms Maletic’s demeanour at the end of the conversation was consistent with the account provided by Ms Neilsen who saw the applicant stand up and walk away from her desk.
This was – or should have been – a comparatively minor interaction which only became necessary because the applicant failed to follow an earlier instruction. There was no reason to call the applicant into an office or handle her differently to the way in which Ms Humphreys behaved. I accept Ms Humphreys was conscious the applicant experienced anxiety; Ms Humphreys pointed out she had already agreed to changes to the seating plan in order to accommodate the applicant. I am not satisfied there is any credible evidence that Ms Humphreys failed to deal with the applicant effectively and appropriately on that basis. Ms Humphreys did nothing wrong.
But that still leaves the key question: was this administrative action for the purposes of the exclusionary provision in s 5A? The expression is defined to include a range of specific practices or circumstances. Comcare suggests the example in s 5A(2)(f) is apposite here. Comcare argues the action in question was prompted by the applicant’s failure “to obtain…a benefit…in connection with [her] employment” – which would make the action administrative action (assuming, as I have found, the action is reasonable).
The applicant did not receive a desk allocation in accordance with her preference. Can that be said to amount to a failure to obtain a benefit? I do not think I could go that far in the circumstances of this case where the applicant’s seating preference was apparently informed by the demands of her underlying medical condition. Accommodating her preferences was not providing a benefit so much as responding to an identified need. I do not think s 5A(2)(f) assists Comcare.
The Full Court pointed out in Reeve that the examples in s 5A(2) are not intended to exhaustively define the scope of the exclusionary provision: at [26] per Gray J. The decision-maker must still look to whether the action in question is taken “in respect of the employee’s employment”. As Rares and Tracey JJ explained in Reeve (at [60]):
That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties…
The applicant argued Ms Humphrey’s direction to the applicant on 2 June 2014 was an operational matter. I was told the authority to issue the direction arose out of the employment contract, and it was issued in the ordinary course of the applicant’s employment but it did not pertain to “the employee’s employment” in the sense that it pertained to the terms and conditions of her employment. The applicant argued Ms Humphreys was simply telling the applicant where to sit and do her work. In that sense, to use the language of Rares and Tracey JJ in Reeve (at [74]), Ms Humphreys did nothing more than:
…define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or… give directions to him or her as to how and when he or she is to perform it.
There is force in these submissions. I note Ms Humphreys did not raise the possibility of some kind of disciplinary action in the course of the conversation in light of Ms Maletic’s failure to follow previous directions. If Ms Humphreys had decided – even informally – to counsel, admonish or warn the applicant of the employment consequences of her refusal to follow the earlier direction, that would almost certainly count as administrative action, if not reasonable administrative action. But Ms Humphreys did not go that far. She made it clear in her evidence that she cut the conversation short when she saw Ms Maletic’s reaction. The conversation never got to the point where disciplinary action was contemplated. I also note when asked about seating allocations, and specifically whether it was reasonable to group particular teams together, Ms Humphreys explained it was “a business decision”.
While I acknowledge the force of the applicant’s submissions, I think Comcare had the better of the argument in relation to this notoriously difficult distinction. I reach that view in light of the observation by Rares and Tracey JJ in Reeves that:
’employment, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties…
The direction to move from one desk to another is concerned with the conditions in which the employee works (as opposed to the terms or conditions of employment). It follows the interaction pertaining to that issue was administrative action for the purposes of s 5A. Given I have already concluded the action was reasonable in conception and reasonable in execution, it follows Comcare is entitled to rely on the exclusionary provision.
Conclusion
The decision under review must be affirmed.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.
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Associate
Dated 05 April 2016
Date of hearing 2 February 2016 Counsel for the Applicant
Solicitors for the Applicant
Mr I Klevansky
Slater and Gordon
Counsel for the Respondent
Solicitors for the Respondent
Mr S McLeod
Australian Government Solicitor
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