Maria Martinez and Comcare
[2013] AATA 949
[2013] AATA 949
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3380
Re
Maria Martinez
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 24 December 2013 Place Canberra The decision under review is affirmed.
............................[sgd]............................................
Mr S. Webb, Member
WORKER’S COMPENSATION – psychological injury claim – decision to reject the claim overturned by Tribunal at first hearing – Tribunal decision upset on appeal and remitted to be decided according to law – meaning of ‘reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment’ – disease a result of exclusionary factors – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 5A, 5B, 7, 14
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16
Peters v Comcare [2013] FCA 808
Re Martinez and Comcare [2012] AATA 795REASONS FOR DECISION
Mr S. Webb, Member
24 December 2013
Maria Martinez claimed compensation for an injury in her employment by the Department of Education, Employment and Workplace Relations (the Department)[1]. Comcare rejected the claim in primary and reconsideration decisions[2] on grounds that the claimed injury was the result of reasonable administrative action undertaken in a reasonable manner in respect of her employment – an exclusionary proviso in the definition of ‘injury’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The matter came before the Tribunal and, in the result, Comcare’s decision was set aside[3].
[1] T9.
[2] T31 and T44.
[3] Re Martinez and Comcare [2012] AATA 795.
Comcare took the Tribunal’s decision on appeal to the Federal Court of Australia. Robertson J allowed the appeal and remitted the matter to the Tribunal to be determined according to law, with or without fresh evidence being taken[4].
[4] Comcare v Martinez (No 2) [2013] FCA 439.
Having heard the parties prior to hearing the remitted matter, and with their agreement, I ruled that it is not necessary to recall witnesses to do over again the evidence taken by the Tribunal at first hearing, which can be dealt with in documentary form. But I allowed for additional evidence to be adduced on key points. It was on this basis that the matter came on for hearing.
Comcare filed two additional witness statements from Madjenka Maric and Penny Duncan, and arranged for each of them to give oral evidence.
On commencement of the hearing, questions arose about the need to take further evidence from two key witnesses, Ms Martinez and Ms Ward, and, if so, the extent to which each would be examined on points traversed during the previous hearing. Having taken into evidence the documents that were before the Tribunal at first hearing, as well as the full transcript of that hearing, I ruled that additional oral evidence from Ms Martinez or Ms Ward should be confined to matters that it is necessary for either party to cover, namely gaps in the evidence that need to be filled, inconsistencies in the evidence that a witness should be given an opportunity to resolve, or ambiguous parts of the evidence that a witness should be given an opportunity to clarify, especially in the light of fresh evidence that was not dealt with at first hearing.
In the result, even though counsel for Comcare, Mr Andrew Berger, had prepared on the basis that oral evidence would be taken from Ms Martinez, she was not recalled. Ms Ward was required to clarify parts of her evidence and to address a number of inconsistencies within it.
The facts
Many of the facts are not controversial. These are set out in a Statement of Agreed Facts prepared by the parties for the first hearing[5]. Counsel for both parties informed me that the facts set out in that document are agreed for the purposes of the present hearing. I am satisfied that those facts are made out and can be accepted.
[5] Exhibit R12.
In order to assist understanding and for ease, it is necessary to set out the facts established by the present evidence. This includes exhibits and transcript from the previous Tribunal hearing[6], and it embraces evidence given by Andrea Henson, Monwell Levi, Lynne Stevenson, Tobias Seldon, Rick Browne, Thomas Shiner and, in particular, Ms Martinez[7] and Ms Ward[8].
[6] Exhibits R13, R14 and R15.
[7] Exhibit R13 pages 9 to 88.
[8] Exhibit R14 pages 126 to 183.
The legal framework for managing the performance of Departmental employees is established by the ‘DEEWR Collective Agreement 2009-11’[9] (the Agreement). Under the Agreement, the Department operates a Performance Management and Development Policy[10] (the PMD Policy) and Underperformance Procedures[11]. The PMD Policy requires each employee to enter into an Individual Performance and Development (IPAD) plan, which is subject to annual and mid-cycle review. The IPAD scheme provides for the performance of the employee to be rated against agreed criteria according to a five point scale: ‘Exceptional’, ‘Outstanding’, ‘Good’, ‘Satisfactory and ‘Unsatisfactory’. The PMD Policy provides for performance issues to be promptly addressed at any time in the annual IPAD cycle.
[9] Exhibit R10.
[10] Exhibit R2, Attachment F.
[11] T27.5.
In the period immediately prior to December 2009, Ms Martinez was employed in the position of Contract Manager at the APS 5 level in the National Indigenous Cadetship Program (NICP) section of the Department. It appears that hitherto Ms Martinez performed well when acting in a previous APS 4 role under her (then) supervisors, Christopher Dodd and Andrea Henson, and in or about 2007 she was rated as ‘Outstanding’. In January 2008 Ms Martinez won promotion to the APS 5 Contract Manager role in a merit based selection process that was signed off by the Branch Head at the time, Lynne Stevenson, and the Director of the section, Tom Shiner. From early in 2009, Tobias Seldon assumed the role of Assistant Director at the EL1 level, with responsibility for Rick Browne, an APS 6 level officer and Ms Martinez at the APS 5 level. The reporting structure followed the hierarchy of seniority in the section.
Over a period in 2009, Ms Martinez perceived that Mr Seldon and Mr Browne were bullying her. Mr Seldon and Mr Browne were critical of Ms Martinez’s performance.
In or about August 2009, Ms Martinez sought transfer to the Department’s Queensland office, without success. She then sought transfer to another section of the Department in order, she says, to get away from the bullying behaviours of Mr Seldon and Mr Browne.
On or about 7 December 2009, Ms Martinez transferred at level to the Panel Employment Team section of the Indigenous Employment Program within the Department. Her supervisor in this Team was Deborah Ward, Assistant Director. Initially, the position of Director was filled by Mr Atkins, but by June 2010 Jodie Sexton-Bock had moved into that position.
In her new role, Ms Martinez was initially allocated straight-forward tasks, principally updating 500 or so employment panel member profiles in the Department’s computer database system. This was done to enable Ms Martinez to adapt to her new role while also finalising carry-over work from her previous role.
In an undated statement witnessed by Ms Sexton-Bock, Ms Ward’s evidence is that soon after commencing with the Panel Employment Team, it became clear to her that “Ms Martinez had [difficulty] in grasping what was required” in respect of researching panel members, she was “not competent” in certain contract management tasks and she did “not finish” other tasks she was allocated[12]. It appears that Ms Ward formed the opinion that Ms Martinez was “struggling to complete work tasks and understand the nature of the work within the team”[13] – “Of particular concern were [Ms Martinez’s] personal issues and the phone calls that were impacting on her work by causing her to become distracted, lose focus and lose track of where she was at with her work”[14].
[12] T27.1 folio 76.
[13] Ibid folio 78.
[14] Exhibit R2, page 5.
Ms Martinez was experiencing difficulties involving family members at and about this period of time, and particularly in April 2010. I am satisfied that Ms Ward was alive to this even though she did not enquire about the specific details. Ms Ward and Ms Martinez were located next to each other in an open plan office area with Mladjenka Maric, an Assistant Director who supervised Penny Duncan, an APS 4 level officer, both of whom gave written and oral evidence. Their evidence and the evidence of Ms Ward suggests that, at times, Ms Martinez was quite voluble on the telephone, especially when she was upset, dealing with personal issues. I accept that, without eavesdropping, Ms Duncan and Ms Ward were alerted to personal issues Ms Martinez was dealing with by the content of her telephone conversations, to which they were exposed in the course of their usual duties in 2010.
Ms Ward was sufficiently concerned about Ms Martinez’s performance in her new role to raise this with Mr Atkins in early February 2010 in the context of their weekly management meetings, in the usual course of operations. On Ms Ward’s oral evidence, I am satisfied that the conversation was squarely directed to Ms Martinez’s workload and to her work tasks and duties[15]. Ms Ward obtained Mr Atkins’ approval to commence an informal process to assist Ms Martinez make an effective transition to her new role. Mr Atkins’ approval is not documented and he was not called to give evidence.
[15] See Transcript, Exhibit R14, pages 138-139.
Consequently, Ms Ward commenced “informal conversations” with Ms Martinez[16]. It appears that this escalated in March 2010 when Ms Ward “initiated weekly meetings with [Ms Martinez] of a more formal nature by requesting that we meet once a week”[17]. Despite this, Ms Ward maintains that she did not squarely raise concerns with Ms Martinez about her overall performance during these weekly meetings, although she did raise specific issues, such as an issue about personal telephone calls and the effect these were having on other employees, and an issue relating to an Excel spreadsheet Ms Martinez was using to record information about employment panel members.
[16] T27.1 folio 78.
[17] Exhibit R2, page 4.
Ms Ward’s explanation for not raising concerns about Ms Martinez’s overall performance directly is that she did not think that this was the best thing to do in the circumstances. I accept that she wanted to assist Ms Martinez and that, in her assessment, as Ms Martinez was new to the Employment Team and as she appeared to be dealing with difficult personal issues, it would not be helpful to raise performance issues with her at the time. Ms Ward informed me that, with more time and an informal supportive approach, she hoped Ms Martinez’s performance may improve.
Previously, Ms Martinez was rated as ‘Good’ in the end of cycle review as of June 2009. This rating was confirmed by Mr Shiner as of 6 December 2009 against Mr Seldon’s recommendation that the rating should be reduced to ‘Satisfactory’. It appears that Ms Ward was privy to the robust discussion between Mr Shiner and Mr Seldon about this rating. That notwithstanding, on 27 April 2010, in consequence of the mid-cycle IPAD review, Ms Ward rated Ms Martinez’s performance as ‘Good’ even though she harboured concerns about her performance of certain tasks and was meeting informally with Ms Martinez to address related issues on a weekly basis.
At some point in April 2010, possibly in one of the weekly meetings with Ms Ward, Ms Martinez informed Ms Ward that she felt the work was boring. In the Tribunal proceedings at first instance, she stated that “I felt that she [Ms Ward] patronised me”[18].
[18] Exhibit A1 at [65].
Ms Ward maintains that there was no improvement in Ms Martinez’s performance by June 2010. She consulted Ms Sexton-Bock and an informal performance improvement process was approved. As with Mr Atkins in February 2010, there is no documentation of such approval, and Ms Sexton-Bock was not called to give evidence.
As the evidence came out, it appears that Ms Ward discussed Ms Martinez’s progress with her Director in weekly meetings, initially with Mr Atkins and then, following his departure, with Ms Sexton-Bock. Furthermore, from 21 June 2010 Ms Ward documented each meeting in a folder on the Departmental computer system that could be accessed by Ms Sexton-Bock. These records summarise issues addressed, any progress made or difficulties encountered, and possible strategies to address shortfalls or difficulties. It appears that the improvement strategies discussed by Ms Ward and Ms Martinez included training courses, reading and applying Departmental guidelines and seeking advice or instruction from Ms Ward.
As regards the meeting on 21 June 2010, for the first time, Ms Ward squarely raised concerns about Ms Martinez’s overall performance, including:
(a)Ms Martinez’s attendance, work hours, flex sheet records and the timely entry of personal leave into the Department’s CONNECT system – these are set out in the meeting record in the following terms:
“1. Time spent at work is getting shorter, due to late start times and early leaving times. ([Ms Martinez] attends physio twice a week for a workplace injury, leaving at 3.30pm, but has an arrangement in place with HR [for recording these absences as leave to be recredited under her compensation account] – these days are not an issue).
[Ms Martinez] does inform me by phone when she is going to be late, but this is happening more frequently.
…
3. Personal leave is not put into CONNECT in a timely manner and there has been a number of occasions when reminders have been necessary.”
(b)Ms Martinez’s performance - these are set out in the record of the meeting in the following general terms:
“2. Work is generally being done to a low standard, being partially finished or not being done at all. Constant reminders are required to complete work. Examples given were:
State queries spreadsheet (DM-) that contains only 2 queries even though more have been sent to [Ms Martinez] for inclusion and I was informed it was updated.
Panel Member Profile spreadsheet (DM-) that had missing info and required tidying up. I had requested updating to a certain point on a number of occasions (beginning in April) and had been informed that it was done. It was finally completed mid June.
Work Plan repeatedly not updated and a copy never provided at our weekly meetings unless reminded by myself prior to the meeting.”[20]
[20]Ibid
Ms Martinez’s responses are included in the meeting record, including that –
“[Ms Martinez] got quite upset and stated that she had a number of personal family issues to deal with. She agreed that her work was suffering because of this, but she felt that she “just needed to get back into her usual routine”.
Ms Martinez was upset when these issues were raised with her. On Ms Ward’s evidence she “burst into tears”[21]. Ms Martinez’s evidence is that she was shocked, but she did not raise this with Ms Ward at the time and “agreed to take on Ms Ward’s suggestions as I believed this would be the most professional approach”[22].
[21] Exhibit R2, page 6 at [26].
[22] Exhibit A1 at [69].
The meeting between Ms Martinez and Ms Ward on 21 June 2010 is significant for a several reasons. The meeting marked an escalation in the actions taken by Ms Ward to address continuing issues relating to Ms Martinez’s performance with the commencement of a “more formal” performance improvement process. Ms Ward described the ‘more formal’ process in the following way –
“From around June 2010 I introduced a new level of formality into our weekly meetings. Previously we met over at a table in a vacant area near our desks, but from June onwards we met in a vacant office or meeting room. As noted in my earlier statement, and as explained to [Ms Martinez] at the time, the focus of the meetings was to assist [her] in getting on track with her work and identifying the means to do so. I made suggestions on improvement strategies and training options…. I also invited [Ms Martinez] to contribute her own suggestions… From June 2010 I also began keeping a typed record of the meetings, a copy of which I understand is before the Tribunal (T27.3). After every meeting, I emailed the typed notes to [Ms Martinez] for comment…”[23]
[23] Exhibit R2, page 5.
Under this process the regular weekly meetings continued in a meeting room along the corridor from where Ms Martinez and Ms Ward worked. Ms Ward and Ms Martinez had adjoining desks in an open plan office environment. They were located in a “corral” of four desks with Ms Maric and Ms Duncan which afforded but little privacy.
From 21 June 2010, the weekly meetings between Ms Ward and Ms Martinez were conducted in private. Ms Duncan and Ms Maric gave evidence that they were aware of the meetings, but not what the meetings were about. On their evidence, meetings of various kinds were conducted in this manner on a frequent basis, and it was not unusual for such meetings to take place in the meeting room along the corridor from where they worked. Clearly, in an open plan office, there are times when it is desirable or necessary for a manager to converse privately with an employee. Also on their evidence, the room in which Ms Ward met with Ms Martinez was not visible from their desks, and it had two points of access and egress, one of which was removed from their work area. The import of this is that Ms Martinez could have accessed or exited from the meeting room privately, out of sight from her work colleagues, if she chose to do so.
The records of the informal performance improvement meetings between Ms Ward and Ms Martinez suggest that some progress was made by Ms Martinez in some areas. But Ms Ward’s evidence is that her concerns were not allayed.
During the meetings on 13 and 19 July 2010, it appears that there was some discussion about Ms Martinez’s IPAD plan and the end of cycle review[24]. It appears that an end of cycle performance rating meeting was scheduled for 22 July 2010.
[24] T27.3 folios 85 and 86.
On 2 August 2010, in consequence of the end of cycle review, Ms Ward reduced Ms Martinez’s performance rating to ‘Satisfactory’[25]. I note that at no point during the period I must consider in 2009 and 2010 was Ms Martinez’s performance rated as ‘Unsatisfactory’.
[25] T27.4 folio 96.
Records of the informal meeting on 2 August 2010 show that Ms Ward raised specific concerns about five items, including “…concerns over flex time as the negative hours need to be reduced”[26].
[26] T27.3 folio 86.
Meeting records for 10 August 2010 set out areas of continuing concern to Ms Ward. These, and the strategies to address them, include –
“…
There is still a concern over negative flex and we again discussed the need to reduce this by working at least core hours with perhaps an extra 30 minutes per day.
…
[Ms Martinez] seems to be having a problem understanding her role in the team and has struggled to retain basic information. Even with repeated discussion she is unable to take in and retain information and understand requirements…
Work hours have improved slightly with [Ms Martinez] coming in earlier on some days, but she is still leaving early most days of the week.
[Ms Martinez] takes a lot of personal phone calls at work and is often distracted when we are trying to discuss work.
I am concerned that personal problems are having a major impact on [Ms Martinez’s] capacity to take in and retain information and her overall work capacity. [Ms Martinez] agreed that this is the case and that she is going to seek the assistance of a counsellor. I suggested that taking a period of time off work to deal with some of her personal issues may also be helpful and something to consider.
Suggestions
I [Ms Ward] will put together an Improvement Plan for [Ms Martinez] to commence next week.
I also suggested:
That [Ms Martinez] should try to keep her personal life separate from her work so as not to be so distracted.
That [Ms Martinez] needs to build up her basic knowledge of our program and we agreed we would try:
Organising a time for us to get together for an hour each week where she can ask any questions and discuss any topic she chooses. [Ms Martinez] will keep a notebook to record questions she wants to ask.
That [Ms Martinez] starts to familiarise herself with the documents that we use to provide advice to the states, starting with the IEP Employment Panel document first…
That [Ms Martinez] works at least her core hours each day and tries to do a bit extra whenever possible to reduce her negative flex time.”[27]
[27] T27.3 folios 87-88.
The Performance Improvement Plan referred to in this record is not in evidence. On Ms Ward’s evidence –
“This was initially implemented on 30 August 2010, with five separate areas identified; Basic knowledge of the functions, issues and the role of the team, work accuracy, working to timelines, work hours, correct use of CONNECT and accurate flex sheets.”[28]
[28] T5 folio 14.
There are no records of subsequent weekly informal performance management meetings between Ms Ward and Ms Martinez. Ms Ward stated that Ms Martinez attended a full day writing course on 17 August 2010 and a half-day follow-up course on 24 August 2010. I accept that she did.
On 20 August 2010, Ms Sexton-Bock set out concerns about Ms Martinez’s attendance on that and the preceding day in an email to Ms Ward[29]. Ms Ward attached a print out of Ms Martinez’s flex sheet for this period to her statement in Exhibit R2, highlighting entries of concern. The original document with full colour highlighting is not in evidence. Ms Ward rejected these flex sheets, requiring changes to be made by Ms Martinez. The evidentiary basis on which it is alleged that Ms Martinez did not accurately record the times of her work attendance is not sufficient to precisely determine the temporal extent of deficiencies in her record-keeping, day by day.
[29] Exhibit R2, Attachment G.
Ms Ward’s evidence is that, on 9 September 2010, she –
“… informed [Ms Martinez] that she needed to show some improvement in her work performance, and that if there wasn’t improvement within 4 weeks, we would take steps to commence a formal performance management procedure. However, if there was improvement, there would be no need to commence any formal procedure. I recall that [Ms Martinez] got a bit upset during this conversation, but we talked about how this could be achieved…”[30]
In a contemporaneous Work Report dated 29 September 2010, Ms Ward stated that –
“On Monday 6 September 2010 [Ms Martinez] was informed that she would be given a four week period to respond and show an improvement in her work as per the Improvement Plan. She was given an opportunity to respond, but has declined to provide any comments to date.”[31]
[30] Exhibit R2, page 7 at [31].
[31] T5 folio 14.
From her evidence at first hearing, it is quite clear that Ms Ward considered that this change marked the start of an underperformance process which would lead to commencement of formal Underperformance Procedures if improvement was not apparent within four weeks[32].
[32] Exhibit R14, page 176.
It appears that Ms Ward prepared a revised Performance Improvement Plan[33] and sought advice from the Department’s Human Resources section[34], as well as input from Ms Martinez[35]. The Plan was due to commence on 28 September 2010.
[33] T27.4 folios 92-93.
[34] Ibid folio 91.
[35] Ibid folio 89.
It did not commence, as Ms Martinez left work on 17 September 2010, and she has not returned. It appears that one key precipitant for her departure was Ms Ward taking issue with the accuracy of Ms Martinez’s flex sheets. At or about 11am on that day, Ms Ward informed Ms Martinez that she was about to reject her flex sheet. It appears that Ms Martinez considered this to be unreasonable. Ms Ward closely monitored Ms Martinez’s work times and attendance from in or about June 2010, and she allegedly recorded Ms Martinez’s arrival and departure times from 19 August 2010 to 15 September 2010 in a diary. The diary is not in evidence as Ms Ward says she threw it away before being made aware that Ms Martinez had claimed compensation. I draw no adverse inference from this.
On 1 November 2010, Ms Martinez lodged a claim for compensation in respect of “Depression, Anxiety” that she says arose on the morning of 31 August 2010 as a result of “Patronisation, Bullying, Being made to feel stupid, Work colleagues speaking ill”[36].
[36] T9 folios 24 and 26.
Medical evidence
It is germane to consider this history in the context of the contemporaneous medical evidence, particularly the clinical notes of Dr Glenn Dillon, Ms Martinez’s treating general practitioner. I note that some of Dr Dillon’s clinical notes, from 9 October 2009 to 30 August 2010 were not before the Tribunal at first hearing.
Ms Martinez had a previous work-related physical injury for which she obtained rehabilitative treatments, including physiotherapy and a gym program during 2010. In order to obtain such treatment, Ms Martinez left work early on some days, recording this as leave to be recredited under the compensation arrangements between her employer and Comcare.
It is quite clear from the clinical records of Dr Dillon that on 16 April 2010 Ms Martinez was “Extremely stressed out” by a personal matter, the details of which are not relevant to record. The Doctor noted that she had applied for a transfer to Queensland in order to be closer to family members, and that she was sleeping poorly, recording that the reason for the consultation was “acute anxiety”[37]. There is no reference to difficulties at work in these or preceding records. The same can be said for Dr Dillon’s notes of consultations with Ms Martinez on 28 May and 25 June 2010. The latter consultation took place four days after the commencement of Ms Ward’s ‘more formal’ performance improvement process on 21 June 2010, when Ms Martinez says that she was shocked by Ms Ward raising issues about her performance. On the face of Dr Dillon’s clinical notes, this was not something she raised or that was of clinical significance at the time.
[37] Exhibit R8, clinical note 16 April 2010.
On 19 August 2010, Ms Martinez consulted an Employee Assistance Program Counsellor provided by the Department, John Cameron. Mr Cameron’s notes reveal that Ms Martinez was coping with personal issues and that she wanted to move to Queensland, but she was encountering difficulty finding work there. He noted “Workplace issues also impacting: changes in work environment” and “confidence low at work”[38].
[38] Exhibit R9, clinical note 19 August 2010.
Dr Dillon first noted issues relating to Ms Martinez’s employment in his consultation with her on 31 August 2010 –
“Some issue relating to work – some performance matters / job in Qld has fallen through
Comcare matters as well – paperwork not lodged
Has seen a counsellor about feeling depressed”[39]
[39] Exhibit R8, clinical note 31 August 2010.
In a further consultation on 16 September 2010, Mr Cameron noted –
“She stated she is struggling with work due to a significant number of people being put on the mobility register and the mood/culture it is causing with all staff: fear driven environment.
She said that she is now in a new role that she is not suited to and doesn’t feel she can perform. She explained this is now moving towards hating being at work and that she is worried she may become rude or isolate from others.
… She reiterated that she was still feeling patronised and bullied by her boss and worries about this occurring again.”[40]
[40] Exhibit R9, clinical note 16 September 2010.
On leaving work on 17 September 2010, Ms Martinez consulted Dr Dillon. The Doctor issued a medical certificate that she was unfit for work and made the following record in his clinical notes –
“Feeling quite depressed – work pressures
Steep learning curve in new position…
Feeling somewhat victimised – not sure why
Patronised ++ / being micro managed really badly
Has been accused of workplace ‘deficiencies’
Has lost trust in the workplace
“thought of the family stops her doping something silly…”
Counsellor recommended seeing us here
Reason for visit:
Adjustment Disorder with depressed mood”[41]
[41] Exhibit R8, clinical note 17 September 2010.
Ms Martinez consulted Mr Cameron again on 23 September 2010, and he noted –
“Maria stated that she met with HR but in our discussions it was evident she did not tell them everything they needed to know to provide adequate support.
[Ms Martinez] went on to say that Friday was more difficult than usual when questioned over her timesheets. She became emotional and felt vulnerable but was told by her supervisor that she had to look at the supervisor while talking.
[Ms Martinez] conveyed that she then heard the supervisor saying negative things about her behind her back. She left work to consult her GP who recommended sick leave until she takes her holidays. GP also prescribed antidepressants.
[Ms Martinez] stated that she has now also consulted a union rep for support.
…
[Ms Martinez’s] change in mood was clear when discussing family (increased happiness and flamboyant body language), as compared to discussing workplace situation (emotional and protective of self)…”[42]
[42] Exhibit R9, clinical note 23 September 2010.
On 12 January 2011, Dr Dillon reported Ms Martinez was initially reviewed in respect of an adjustment disorder with anxiety and depressed mood relating to “quite significant work place incidents in the latter half of 2010” on 31 August 2010, when she described “inappropriate work place performance appraisals and targeted and unfair criticism”[43]. He concluded that “there is a direct and significant causal relationship between the 2010 work place incidents (and her perception of these) and her current acute anxiety/depression disorder”[44].
[43] T25 folio 71.
[44] Ibid folio 72.
Ms Martinez was subsequently examined by Dr Jungfer[45] and Dr Sheehan[46], consultant psychiatrists who diagnosed a depressive disorder with a panic disorder to which performance improvement actions in her employment contributed to a significant degree.
[45] Exhibit A4.
[46] Exhibit R3.
The issues
As regards the issues for determination, I was informed that the matters in dispute are somewhat narrower than those addressed by the Tribunal at first hearing and in the resulting decision.
The issue for determination is whether Ms Martinez suffered an injury for which Comcare is liable to pay compensation. The sharp points to be decided are –
(a)whether the psychiatric ailment diagnosed by Dr Jungfer, Dr Sheehan and Dr Dillon (albeit differently) was significantly contributed to by her employment such that it is a ‘disease’ for the purposes of s 5B of the Act; and if so
(b)whether the disease resulted from reasonable administrative action undertaken in a reasonable manner in respect of her employment, such that it is excluded from the meaning of ‘injury’ for the purposes of s 5A; and if not
(c)the deemed date of the injury under s 7(4).
Disease
Mr Berger informed me that there is no dispute Ms Martinez suffers from a mental ailment to which her employment significantly contributed, founding a ‘disease’ for the purposes of s 5B of the Act. More particularly, there is no dispute that the circumstances of Ms Martinez’s employment in the NICP (where she maintains she was bullied by Mr Seldon and Mr Browne) and the circumstances of her employment in the Panel Employment Team from 21 June 2010 (where she alleges she was patronised, micro-managed and unfairly criticised by Ms Ward) may have significantly contributed to the disease.
I am satisfied, having reviewed the evidence, that these assessments are correct. It is quite clear that Ms Martinez’s disease resulted, in substantial part at least, from the actions taken by Ms Ward from 21 June 2010 in respect of Ms Martinez’s performance and her flex-sheets.
On the expert evidence of Dr Sheehan and Dr Jungfer[47], I find that Ms Martinez suffered two inter-linked mood disorders, a depressive disorder and panic disorder. Both were of gradual onset. Dr Jungfer is in substantial agreement with Dr Sheehan that events in Ms Martinez’s employment from June 2010, and her perceptions of bullying by Mr Seldon and Mr Browne, significantly contributed to these ailments. Dr Dillon diagnosed an adjustment disorder, but Dr Dillon is not a psychiatrist and the expert psychiatric diagnoses of Dr Sheehan and Dr Jungfer are preferred, as they have specialist qualifications in psychiatry.
[47] See reports in Exhibit A4 (Dr Jungfer) and Exhibit R3 (Dr Sheehan), and transcript of evidence given by Dr Sheehan and Dr Jungfer – Exhibit R14, pages185 to 206.
Ms Martinez has some history of depression that was treated with anti-depressant medications in and before 2007. On Dr Sheehan’s evidence, this background probably rendered her more susceptible or vulnerable to suffer further bouts of depression. I accept that it did.
That notwithstanding, on the present evidence, it is probable that Ms Martinez was free of symptoms for an extended period in 2008 and 2009. Dr Sheehan, Dr Jungfer and Dr Dillon agree, and I find, that the mood disorders arose in reaction to Ms Martinez’s stress over a period and rose to a level of clinical significance on or about 31 August 2010.
Comcare maintains that Ms Martinez suffered from two distinct ‘diseases’ for the purposes of s 5B. The first is marked by the onset and progression of psychological symptoms, however described diagnostically, requiring medical treatment on and after 31 August 2010 but not resulting in any incapacity for work, and the second is the sudden escalation of symptoms on 17 September 2010 that resulted in Ms Martinez leaving work and being certified unfit to return by Dr Dillon. This event, in Comcare’s submission, is an ‘aggravation’ of a disease that gives rise to a separate cause of action for the purposes of the Act.
Dr Sheehan’s evidence on this point is illuminating –
“On the basis of the available information it does appear that the applicant’s employment during her period of performance appraisal contributed to the development of her condition and in particular when she was questioned over her flex-sheet which appears to have precipitated her acute agitation and subsequently her being certified as medically unfit for work.”[48]
[48] Exhibit R3 page 9.
On this evidence, it is possible that Comcare is correct. But I note that Ms Martinez was first questioned about her flex-sheet by Ms Ward on 21 June 2010. This part of Dr Sheehan’s evidence should be considered in context. Dr Sheehan and Dr Jungfer are in substantial agreement, and the weight of their evidence is that the disorders are inter-linked and progressive in nature, developing in response to Ms Martinez’s reactions to and perceptions of circumstances in her employment over a period of time. It does not follow that each reaction or perception that caused an elevation in her stress or symptomatology, consequent to circumstance, constitutes an ‘aggravation’ for the purposes of the Act as these are characteristic of an ongoing reactive mood disorder.
On balance, I am satisfied that Ms Martinez did not suffer an aggravation of her mood disorders on 17 September 2010. The disorders became clinically significant on or about 31 August 2010, having developed over a period of weeks or months. I am satisfied that in the period from 31 August to 17 September 2010 the disorders were not static or stable, but progressed into a florid psychiatric illness. The apparent escalation that precipitated Ms Martinez’s departure from work on 17 September 2010 is a manifestation of the advancing progress of the disorders she suffered, and not a separate cause of action or disease.
That notwithstanding, the important point is that Ms Martinez suffered from a ‘disease’ for the purposes of s 5B of the Act in the form of interlinked depressive and panic disorders, being two aspects of the psychiatric diagnosis on which Dr Jungfer and Dr Sheehan agreed.
Injury and exclusion
The disease will be an ‘injury’ for the purposes of the Act unless it is the result of ‘reasonable administrative action undertaken in a reasonable manner in respect of her employment’ under s 5A.
Mr Berger informed me that the exclusionary actions asserted by Comcare commenced on 21 June 2010. When pressed on this point, Mr Berger agreed that if the actions taken by Ms Ward on and after 21 June 2010 are found not to be within the exclusionary proviso of s 5A(1), then the same will apply in respect of previous actions with a causal effect in the context of Ms Martinez’s NICP employment. Mr Leo Grey, counsel for Ms Martinez, concurred that it is not necessary for the Tribunal to consider in detail the circumstances of her employment in the NICP section. Mr Grey informed me that the period of central significance is the period from June to September 2010, when Ms Ward was attempting to manage improvement in Ms Martinez’s performance. I accept that this period is central to the dispute.
Nevertheless, Robertson J concluded, in part, that the Tribunal of first instance was in error as it did not determine whether contributory factors arising from Ms Martinez’s NICP employment were within the exclusionary proviso of s 5A. It follows that, if this point is determinative, it would be necessary to make the requisite findings, rather than to simply accept the agreement of the parties. But, as will appear, it is not necessary to do so in the circumstances – the case turns on a different point.
Following Hart v Comcare[49], if Ms Martinez’s disease is the result of more than one operative factor, as appears, and one of those factors is within the exclusory proviso of s 5A(1), such that the disease may properly be found to result from that factor, then it is excluded from the meaning of an ‘injury’ for the purposes of the Act.
[49] [2005] FCAFC 16 at [22].
Ms Martinez maintains that the actions taken by Ms Ward on and after 21 June 2010 are not within the meaning of the phrase ‘reasonable administrative action undertaken in a reasonable manner’ in respect of her employment. These actions, so the argument goes, were not in accord with the spirit or the letter of the Agreement, the PMD Policy or the Underperformance Guidelines.
Furthermore, Ms Martinez asserts that she was denied procedural fairness, natural justice and the right to representation or support. And she was denied a clear timetable for improvement within a specified time. Instead, the performance management persisted for many months from February 2010 without due process, ultimately causing her harm. Ms Martinez says that Ms Ward was duty bound to take into account her personal circumstances and her medical health, but this was not done, or not done to the extent necessary.
In order to address the extensive submissions made on this point, it is necessary to consider the context of actions Ms Ward took from February 2010.
But before doing so, it is first necessary to consider the terms of the legislation, particularly s 5A –
5A Definition of injury
(1) In this Act:
injury means:
(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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(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.
Thus, as Ms Martinez’s disease is a result of actions taken by her employer, it is necessary to determine whether these actions are –
(a)reasonable administrative action in respect of the employee’s employment; and
(b)undertaken in a reasonable manner.
If both questions are answered in the affirmative, the disease will be excluded and Ms Martinez will not be entitled to compensation pursuant to her claim.
The particular actions to be considered and assessed may be grouped in three categories – 1: actions taken from February to 20 June 2010 (the February to June actions); 2: performance actions taken from 21 June to 17 September 2010 (the June to September performance actions); and 3: actions taken from 21 June 2010 in respect of Ms Martinez’s flex sheets and leave records (the flex sheet actions).
The February to June actions
These actions are weekly meetings between Ms Ward and Ms Martinez that were scheduled more formally in March 2010. The meetings addressed issues relating to Ms Martinez’s performance of tasks in her (then) new role in the Panel Employment Team. As I have said, they dealt with operational and supervisory matters relating to her workload, work tasks and duties. Even though Ms Ward discussed her preliminary concerns about Ms Martinez’s performance with Mr Atkins and Ms Sexton-Bock, she did not raise these directly or squarely with Ms Martinez.
It appears, and I accept, that Ms Ward was aware that Ms Martinez was experiencing some difficulties of a personal nature, as well as grappling with carry-over work from her previous Contract Manager role and the demands of her new role. I am satisfied that Ms Ward and Mr Atkins exercised management judgement to provide more time for Ms Martinez to adjust and adapt to her new role. For this purpose Ms Ward instituted regular weekly meetings to ensure a continuing dialogue with Ms Martinez about work tasks and related matters.
Mr Berger observed that it is unlikely the meetings between Ms Ward and Ms Martinez prior to 21 June 2010 are within the meaning of administrative action taken in respect of Ms Martinez’s employment. I agree.
Operational or supervisory actions taken by Ms Ward to manage Ms Martinez’s work on a daily or weekly basis should not be confused with or misconstrued as ‘administrative actions’ taken in respect of her ‘employment’.
I am mindful of what the majority said in Commonwealth Bank of Australia v Reeve[50] –
60. The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. 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: cf John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; (2010) 185 FCR 566 at 586 [72]- [73] per Dowsett J, with whom Spender J agreed.
[Emphasis added]
[50] [2012] FCAFC 21 per Rares and Tracey JJ at [60].
Most recently, this important distinction was reiterated by Bromberg J in Peters v Comcare[51].
[51] [2013] FCA 808 at [32] to [34].
As the actions Ms Ward took from February to 20 June 2010 had an operational or supervisory character, being directed to specific tasks and related matters in the context of Ms Martinez’s duties in the Panel Employment Team, the actions were not taken in respect of Ms Martinez’s ‘employment’. These actions are not within the exclusionary proviso of s 5A(1) and they are not embraced by the inclusive terms of s 5A(2).
I note Mr Grey’s submission that the informal actions Ms Ward undertook from February to June 2010, however characterised, did not significantly contribute to Ms Martinez’s claimed injury. This is consistent with the medical evidence.
The June to September performance actions
The second group of administrative actions are those Ms Ward took in respect of “more formal” performance management from 21 June 2010 to 17 September 2010, the day on which Ms Martinez left work.
On 21 June 2010, Ms Ward provided Ms Martinez with an open-ended but structured process to support improvement of her performance. As matters progressed, Ms Ward formed the opinion that Ms Martinez’s performance was not improving even though some training and development activities had been undertaken. She then moved, on 10 and 17 August 2010, to inform Ms Martinez that she would develop a more structured Performance Improvement Plan. On 6 September 2010 Ms Ward informed Ms Martinez that she would be given four weeks in which to improve under the Plan.
Employment
Mr Grey and Mr Berger informed me there is no dispute that the actions Ms Ward took from June to September 2010 were taken in respect of Ms Martinez’s ‘employment’.
To my mind, even though this is apparently not controversial, and I think that Mr Grey and Mr Berger are correct, there is a real question whether action in the form of informal weekly meetings between an employee and her supervisor, in which performance issues were discussed in respect of specific tasks, duties and operational matters, including attendance times, is ‘administrative action’ taken ‘in respect of the employee’s employment’. As Rares and Tracey JJ said in Reeve’s case at [74] –
It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action” in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.
There is no question that the specific actions Ms Ward took from 21 June 2010 were directed to Ms Martinez, specifically, and to her performance of tasks and duties at the APS 5 level in the Panel Employment Team. The performance of tasks and duties by an employee, and supervisory direction as to how and when tasks and duties are to be performed by an employee’s supervisor, is not within the meaning of ‘administrative action’ for the purposes of s 5A(1). More is required for the exclusion to be enlivened, as Gray J said in Reeve’s case at [33] –
In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer… matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.
The dividing line between operational or supervisory action by an employer in respect of an employee’s performance of duties, on the one hand, and administrative action by an employer in respect of an employee’s employment, on the other, is not always black and white. It requires careful examination of the nature and purposes of the action taken to determine where it lies in any particular case. If the action is not directed to the relationship between the employer and the employee or to the administration of that relationship, it may not meet the description of ‘administrative action’ under s 5A(1).
In this case, Ms Ward’s action on 21 June 2010 was to squarely raise performance issues with Ms Martinez that were not simply task-related. The performance improvement process she commenced on that day is substantially different than the previous task-related operational and supervisory actions she took from March 2010. I am satisfied and find that the informal performance-related action she took on and after 21 June 2010 is ‘administrative action’ in respect of Ms Martinez’s employment at the APS 5 level in the Penal Employment Team section.
Furthermore, it is probable that the administrative actions are within the scope of s 5A(2). Considering the text, context and purposes of s 5A, the phrase ‘in connection with’ in s 5A(2)(e) does not signify or require a direct causal relationship between the ‘action mentioned’ and ‘anything reasonable done’ – while a close or proximate relationship is required, such that the link between the action and the thing done is established, the relationship need not be causal.
The performance improvement actions Ms Ward took on and after 21 June 2010 were taken ‘in connection with’ appraisals of Ms Martinez’s performance in April 2010, when she was rated as ‘Good’, and in August 2010, when she was given a lower rating as ‘Satisfactory’ under the IPAD scheme, which is squarely within the frame of her employment. This means that the actions taken by Ms Ward from 21 June in respect of Ms Martinez’s performance will be within the meaning of s 5A(2)(e) if they are reasonable, and they will be within the exclusionary proviso of s 5A(1) if they were undertaken in a reasonable manner.
Mr Grey says that they were not.
Reasonable administrative action
Mr Grey asserts that the formal Underperformance Procedures provide a framework for managing performance issues, setting out clear limits, rights and obligations on the employee and the employer, thereby ensuring procedural fairness and natural justice. In his submission, these procedures should be construed aspirationally, supporting a return to satisfactory performance by the employee, and a manager such as Ms Ward should not be reluctant to rate an employee’s performance as ‘Unsatisfactory’ if that is justified in order to implement the Underperformance Procedures. He maintains that this is what Ms Ward should have done in the circumstances. Her failure to do so in or about June 2010 was not reasonable, so the argument goes, as it led to critical discussion and extensive micro-management of Ms Martinez’s performance over an unduly protracted period of many months, whereby she was denied procedural fairness and support, her level of stress was increased without appropriate relief or remedy, and her health was damaged.
In proceedings of this kind, the test of reasonableness is an objective one that should be applied in consideration of the particular circumstances, having regard to the causes and effects of the action and the manner in which it was undertaken[52].
[52] Comcare v Martinez [2013] FCA 439 at [82] and [83].
While I agree that the Underperformance Procedures may be aspirational insofar as they provide a framework that is intended to support an employee to improve his or her performance, that is not their only purpose. It is quite clear that the Procedures provide a basis for action in circumstances where an employee’s performance does not meet the minimum required standard with potentially serious consequences for the employee. I do not agree, as a matter of principle and law that the Agreement confines performance management actions to the formal Underperformance Procedures.
Under the Agreement, the PMD Policy provides a framework that is sufficiently broad and flexible to accommodate action where the performance of an employee has slipped or is not to their usual level, without it being rated as ‘Unsatisfactory’. Construing the Policy in that way is consistent with its terms. Policy clauses 2, 3, 5 and 39 to 44 clearly support performance management action that is responsive to the particular circumstances of the employee and require that “mechanisms to improve performance back toward a “good” level must be put in place and followed through”[53]. The particular ‘mechanisms’ are not described or formulated in the Policy. To my mind, this is a matter for the judgement of managers when exercising discretion about how best to deal with performance issues in the circumstances of each case.
[53] Exhibit R2, Attachment F, page 5.
No doubt, employee performance issues in a workplace might arise in many different circumstances, and determining how best to address such issues may not be straight-forward or easy – these are often difficult matters. The potential for disputation, grievance or damage is high. Responding appropriately to the particular circumstances requires a manager to obtain sufficient information to properly understand the performance issue and the reasons for it in order to formulate an appropriate response. This requires the exercise of sound judgement, balancing the personal circumstances, interests and obligations of the employee on the one hand, with the circumstances, interests and obligations of the employer on the other, in the context of the employment relationship. And it requires sufficient latitude or flexibility in the policy settings to allow for the exercise of discretion and judgement by responsible supervisors and managers. To my mind, this is what the PMD Policy and the Agreement provide.
As regards the specific actions taken to address Ms Martinez’s performance from June to September 2010, I am satisfied these were a deliberate exercise of judgement by Ms Ward and Ms Sexton-Bock in response to Ms Martinez’s particular circumstances at the time. Considering the legal and policy framework in which they were required to manage, I am satisfied that exercising judgement in this way was permissible under the Departmental procedures and it was consistent with the PMD Policy and the Agreement. While it is correct, as Mr Grey asserts, that the PMD Policy embraces concepts of performance management and performance development, it does not follow that the IPAD scheme covers the field in managing performance – the policy clearly and expressly provides flexibility to address performance improvement when it is necessary within the formal performance rating cycle established by the IPAD scheme.
Under the IPAD scheme, the performance level immediately below ‘Good’ is ‘Satisfactory’. Ms Martinez was rated ‘Good’ in and before April 2010, and she was rated as ‘Satisfactory’ in August 2010. Managing slippage in performance of this kind did not require Ms Ward to resort to the Underperformance Procedures. But it did require her to gather sufficient information to properly consider and understand the circumstances and the reasons for the change in Ms Martinez’s performance. That is what she did. Whether she did this well, or whether she could have done it better, is not to the point if it was done with sufficient information to permit her to make a properly considered decision. And I am satisfied that it was.
I do not accept that Ms Ward was blind to Ms Martinez’s personal difficulties, or that she ignored Ms Martinez’s health. The extent to which a manager might appropriately seek information from an employee about his or her personal circumstances is not marked by a bright dividing line in these circumstances – the desirability of the employer obtaining information about an employee’s personal circumstances must be weighed against the employee’s right to privacy. I am satisfied that Ms Ward approached this matter in a reasonable manner.
The contemporaneous records clearly reveal that these matters were discussed and that Ms Ward suggested that Ms Martinez might benefit from consulting the Departmental Employee Assistance Program counsellor, which she did. It is also quite clear that Ms Martinez informed Ms Ward on 28 June 2010 that she had consulted her treating general practitioner. I am satisfied that these considerations informed Ms Ward’s judgement in respect of the performance management options that were open for her to apply when dealing with Ms Martinez.
It is not presently established that Ms Ward was given a copy of Dr Dillon’s medical certificate dated 30 August 2010, in which he certified (for the first time) that Ms Martinez was suffering from an “Adjustment disorder with depressed mood”[54], or that she was informed by Ms Martinez of the Doctor’s diagnosis. Even it is assumed that Ms Ward was cognisant of this development, Dr Dillon’s certificate records that Ms Martinez was “fit for normal duties from 26/2/2010 to 22/10/10 inclusive”. It was reasonable for Ms Ward to proceed with the informal performance improvement actions she commenced on 21 June 2010 in those circumstances.
[54] T3 folio 4.
Ms Martinez maintains that she should simply have been rated as ‘Unsatisfactory’ and the formal Underperformance Procedures should have been implemented, thereby assuring her of procedural fairness, natural justice and representation or support. If this had been done, the delegate would have been called upon to sign-off on the procedures, ensuring that everything was appropriately done. But as it was not raised formally, Ms Martinez says that the informal procedure was simply a subjective judgement by Ms Ward that was unfair and unreasonable.
That Ms Ward could have moved to rate Ms Martinez’s performance as ‘Unsatisfactory’ and thereby trigger rights and processes under the formal Underperformance Procedures, as Ms Martinez contends, was but one option open. I am satisfied that Ms Ward and her supervisors considered and rejected this in February 2010 and again in June 2010 as it was not the best way to proceed in the circumstances. It appears that Ms Ward formed the view that doing so might have a deleterious effect on Ms Martinez, who was already experiencing personal difficulties.
The informal but structured actions Ms Ward adopted on 21 June 2010, 17 and 30 August 2010 and 6 or 9 September 2010 were alternative options open, exercising discretion under the PMD Policy and the Agreement. I am satisfied that, selecting these actions, Ms Ward acted reasonably exercising discretion in her role as a manager, having regard to all of the circumstances and weighing the personal and professional interests of Ms Martinez with the performance interests of her employer. I accept that she was mindful of the need for fairness to Ms Martinez and to provide a level of transparency and accountability by documenting the performance issues and Ms Martinez’s progress to improvement.
Moving to tighten the process with a Performance Improvement Plan on or about 30 August 2010 and the imposition of a four week timeframe on 6 or 9 September 2010 were actions that were reasonably undertaken. These were discussed with Ms Martinez, and she was given opportunity to comment or respond. As I have said, it is not presently established that Ms Ward was provided a copy of Dr Dillon’s medical certificate dated 30 August 2010 or that Ms Martinez informed her that she was suffering from an Adjustment Disorder at that time.
It was open for Ms Ward to act on the information available to her at the time. That is what she did, and it was reasonable for her to do so in responding to the particular circumstances under the procedural framework established by the Agreement and the PMD Policy. Ms Ward is not a doctor or a psychiatrist, and it is not reasonable to expect her to take account of Ms Martinez’s illness unless she was informed of it by Ms Martinez, or it was obviously manifest at the time.
Ms Martinez says that undertaking the performance improvement meetings over a prolonged period that was initially open-ended is not reasonable. There is some force to this proposition. Once again, this is a matter of judgement. Determining what is reasonable requires consideration of the particular circumstances. To my mind it was reasonable to allow Ms Martinez time to address personal matters and to gradually address performance concerns, adjusting to her new role, over an extended period even though she had been in that role from 7 December 2009. It is quite clear from the clinical notes of Dr Cameron on 19 August and 16 September 2010, and of Dr Dillon on 31 August and 17 September 2010, that Ms Martinez identified difficulties adjusting to her new role. In these circumstances, although the period was longer than might be expected, and it may have been desirable to end the process sooner, the latitude and time Ms Ward allowed for Ms Martinez to adjust to her new role and to improve her performance was a reasonable manner in which to proceed in the particular circumstances.
It is not to the point that another person might have come to a different decision than Ms Ward, or that the actions could have been perfected or better undertaken in some way. With the value of hindsight, it may have been preferable to adopt a different course over a shorter period of time in the circumstances. As I have said, these are difficult matters, requiring the exercise of judgement – the circumstances are not black and white, with only one reasonable action open under the Agreement.
I am satisfied that the actions taken by Ms Ward from 21 June 2010 were lawful and responsive to Ms Martinez’s circumstances, and they were proportionate, reasoned and relevant administrative actions to address the performance issues Ms Ward identified in respect of Ms Martinez’s employment at the APS 5 level in the Panel Employment Team section of the Department.
The informal performance improvement actions Ms Ward undertook from 21 June 2010 were objectively reasonable administrative actions in respect of Ms Martinez’s employment.
Undertaken in a reasonable manner
As to whether the specific actions were undertaken in a reasonable manner, I am satisfied that they were.
Ms Ward’s actions may be criticised for providing too much leeway and latitude to Ms Martinez, or that she allowed matters to go on for too long from February 2010 to September 2010, without instituting formal underperformance procedures. But this does not render the manner in which she undertook these actions from 21 June 2010 other than reasonable when the particular circumstances are considered. I am satisfied that the manner in which Ms Ward undertook administrative action by gradually escalating informal performance improvement measures was reasonable.
It is possible, in an open plan office, that for Ms Martinez to attend weekly private meetings with Ms Ward in an office along the corridor from where she and Ms Ward worked from 21 June 2010 may have alerted her work colleagues that Ms Ward was managing her performance. This is not presently established. The evidence given by Ms Maric and Ms Duncan is that they were not aware of what the meetings were about. Ms Martinez asserts that their evidence was obtained late, for the purposes of the remitted hearing, years after the fact. She says that it is flawed by convenience and the likelihood that their memories may have faded with the passage of time. Ms Maric and Ms Duncan struck me as truthful witness, however, who recounted their evidence to the extent of their recollections.
Nevertheless, it appears that Ms Martinez formed a contrary perception and it may well have caused her embarrassment or humiliation. But Ms Martinez’s perception does not render Ms Ward’s actions from 21 June 2010 unreasonable.
It was reasonable for Ms Ward to conduct the weekly meetings privately in a room meeting room along the corridor from the ‘corral’ where she and Ms Martinez worked. The alternative of conducting the meetings at their desks, in effect publicly was reasonably rejected. The option of conducting the meetings in a meeting room in another part of the building where they worked was open, but the meeting room along the corridor from where they worked could be accessed and exited through a door that was removed from their work area. To my mind, this was a reasonable arrangement that balanced convenience with privacy considerations.
Ms Martinez says that she was surprised and upset by the meeting on 21 June 2010, and that she was not given notice of the performance issues Ms Ward intended to raise. This, she asserts, was not fair and it was not reasonable in the circumstances.
I accept that it may have been desirable for Ms Ward to have placed Ms Martinez on notice that she intended to raise performance issues before doing so, in order to allow her to prepare. This would have been consistent with the Department’s ‘no surprises’ policy. But, as the process was informal and it gave Ms Martinez real opportunities to respond and to address the issues raised without direct consequences, it was reasonable for Ms Ward to undertake the action without formal notice in the context of events and circumstances at the time.
The meeting on 21 June 2010 was a continuation of the weekly meetings between Ms Ward and Ms Martinez that had been ongoing from March 2010, albeit with more formality. The occurrence of the weekly meeting would have not been a surprise to Ms Martinez, albeit that it was conducted in a meeting room. The content of the preceding meetings addressed task-related issues and requirements. Performance issues of that kind would have been no surprise to Ms Martinez. The issue of Ms Martinez’s surprise and Ms Ward’s action to escalate the weekly meetings into a more structured, but still informal, performance improvement process, must be viewed in this context. Ms Ward’s action on 21 June 2010 was not a bolt from the blue – she and Ms Martinez had been meeting weekly from March 2010 to discuss work issues. Even if Ms Martinez was not given advance notice of the performance issues Ms Ward intended to raise informally on 21 June 2010, the manner in which the meeting was arranged and conducted was, I am satisfied, reasonable in the circumstances.
The fact that Ms Martinez was upset during the meeting when informed of concerns about her performance does not render it unreasonable – as I have said, these are often difficult and potentially upsetting matters. I am satisfied that Ms Ward considered the likely effect on Ms Martinez of commencing more formal performance improvement actions before, squarely and for the first time, placing her on notice of concerns about her performance. Once again, there may be different ways of communicating information that may be upsetting or unpalatable to an employee whose performance has slipped, but this is not to the point. I am satisfied that Ms Ward explained the objects of the informal process, to support improvement in Ms Martinez’s performance, and the manner in which it would be conducted. To my mind, the degree of informality was such that Ms Martinez was provided with opportunity to respond or to suggest changes. In all of the circumstances, Ms Ward’s actions in respect of the 21 June 2010 meeting were reasonable.
I note in passing that there is no reference to Ms Martinez complaining of any upset at work when she consulted Dr Dillon on 25 June 2010.
I accept that Ms Martinez lost confidence and trust in Ms Ward and perceived that she was being patronised and micro-managed. These perceptions may have rendered it more difficult for her to raise or discuss difficult issues. That notwithstanding, I do not accept that the power imbalance in the meetings on and after 21 June 2010 was such that Ms Martinez was unable to raise issues or to respond to matters put for discussion. On the contemporaneous records set out in T27.3, it appears that she did. Ms Martinez’s perceptions do not render the performance management process that commenced on 21 June 2010, or the manner in which it was undertaken up to 17 September 2010, unreasonable.
Weighing the evidence, on balance, I am satisfied that it was reasonable for Ms Ward to take the action she implemented on and after 21 June 2010. The informal meeting processes were responsive to Ms Martinez’s personal circumstances, and they provided her with adequate notice of what was required and substantial time in which to address the performance concerns identified. Strategies for improvement included undertaking training courses, seeking guidance from Ms Ward, reading and applying Departmental guidelines and consulting the Department’s Employee Assistance Program counsellor (or, as appears, Ms Martinez’s treating doctor).
The period of informal but structured weekly meetings from 21 June to 9 September 2010 was not so long that it was unreasonable, and the notice given on 9 September 2010 that the formality of the process would be escalated to a Performance Improvement Plan of four weeks duration was reasonable in circumstances where Ms Ward clearly identified persisting performance issues.
In sum on this point, I am satisfied that the performance improvement actions Ms Ward undertook from 21 June to 17 September 2010 were reasonable administrative actions undertaken in a reasonable manner in respect of Ms Martinez’s employment.
These actions are within the terms of the exclusionary proviso of s 5A(1). As Ms Martinez’s disease was suffered as a result of these actions, among other causes, it is not an injury for the purposes of the Act.
That being so, it is not strictly necessary to proceed further to consider whether other actions that significantly contributed to her disease are also within the exclusionary terms of s 5A. But for completeness, and in order to address the submissions made, I will do so.
The flex sheet actions
The third group of actions relates to actions taken in respect of Ms Martinez’s flex sheets and her leave records.
The evidence clearly establishes that Ms Ward raised concerns about Ms Martinez’s attendance times and the way in which these were recorded on and after 21 June 2010.
Ms Ward’s action to reject Ms Martinez’s flex sheets on grounds of inaccuracy was a matter that was open for her as Ms Martinez’s supervisor, monitoring her attendance. In that role, she was required to authorise Ms Martinez’s flex sheets. It was reasonable for her to verify the content of each flex sheet before accepting it.
As regards the carrying forward of negative flex hours (where an employee does not work the minimum number of hours required in a period), this does not simply operate at the maximum permissible level of carry-over. It is necessary for a supervisor, such as Ms Ward, to consider all of the relevant circumstances. So, too, this Tribunal when assessing the reasonableness of the actions taken. Where an employee’s performance has slipped and there are concerns about the accuracy of flex records, to my mind, weighing the interests of the employee and the employer to strike an appropriate work life balance, it may be appropriate to ask the employee to reduce the negative flex carry-over in order to assist performance improvement or in anticipation of future demand for flexible working hours. I am satisfied that this is what Ms Ward did.
I do not accept that Ms Ward acted unfairly by raising Ms Martinez’s flex times in the way she did from 21 June 2010. I am not persuaded that she acted unreasonably in respect of the 20 August 2010 email from Ms Sexton-Bock, although it may have been better if she put Ms Sexton-Bock’s email squarely to Ms Martinez and permitted her to respond – that would have been fair and appropriate in my opinion, but failing to do so in the circumstances does not render her related actions unreasonable.
It appears that Ms Martinez perceived that she was patronised, micro-managed, treated unfairly and bullied by Ms Ward. If that was true at the time, it was open for Ms Martinez to raise the matter with one of the Departmental officers with responsibilities to identify harassment or bullying, and to assist affected employees. The present evidence does not establish that Ms Martinez raised any such issue or that she availed herself of relevant Departmental processes.
I accept that Ms Martinez lost confidence at work as a result of perceptions she formed, rightly or wrongly, about bullying while she was employed in the NICP section and later in the Panel Employment section. This may have rendered it more difficult for her to raise concerns about Mr Seldon or Mr Browne and the actions Ms Ward took when managing Ms Martinez’s performance following her transfer to the Panel Employment Team. There is evidence from Ms Martinez’s past that supports this conclusion. Ms Martinez’s loss of confidence and trust at work may also have increased her sensitivity to critical assessment. Ms Ward’s approach, providing extensive informal opportunities for performance improvement was a reasonable response to these circumstances.
I was taken to a number of previous decisions of the Tribunal. It is not necessary to address these in any detail. These are matters of fact and degree in the particular circumstances.
I am satisfied and find that Ms Ward’s action in respect of Ms Martinez’s flex sheets and her leave records is within the meaning of reasonable administrative action undertaken in a reasonable manner in respect of her employment.
Date of Injury
As Ms Martinez’s disease is not an injury for the purposes of the Act, it is not necessary to consider the date of the injury under s 7(4).
Conclusion
Ms Martinez suffers from a disease, being an ailment to which her employment contributed to a significant degree.
Her disease resulted, in part at least, from actions Ms Ward took from 21 June 2010 to 17 September 2010 in respect of Ms Martinez’s performance, including her flex sheets.
The particular actions Ms Ward took are within the meaning of reasonable administrative actions undertaken in a reasonable manner in respect of her employment for the purposes of s 5A(1) of the Act.
It follows that Ms Martinez’s disease is not within the meaning of an injury for the purposes of the Act, and she is not entitled to compensation pursuant to the claim she made on 1 November 2010.
The decision under review, being Comcare’s reconsideration decision on 25 July 2011, is affirmed.
I certify that the preceding 143 (one hundred and forty -three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .............................[sgd]...........................................
Associate
Dated 24 December 2013
Dates of hearing 11 and 12 December 2013 Date final submissions received 12 December 2013 Counsel for the Applicant Leo Grey Solicitors for the Applicant Jamie Ronald, Colquhoun Murphy Counsel for the Respondent Andrew Berger Solicitors for the Respondent Bradley Dean, Australian Government Solicitor
[19] T27.3 folio 82
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