MARIA MARTINEZ and COMCARE
[2012] AATA 795
•14 November 2012
[2012] AATA 795
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3380
Re
MARIA MARTINEZ
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBERDate 14 November 2012 Place Canberra The decision under review is set aside and remitted to Comcare under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth).
............................[sgd]......................................
PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER
CATCHWORDS
COMPENSATION - Commonwealth Employees - adjustment disorder - date of injury - whether contributed to by employment to a significant degree - whether reasonable administrative action - whether taken in a reasonable manner in respect of employment - conduct of meetings - formal or informal performance appraisal - whether adequate consideration of personal circumstances
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 7(4), 14
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331
Comcare v Chenhall (1992) 37 FCR 75
Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181
Hart v Comcare (2005) 145 FCR 29
Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009)Re Lynch and Comcare (2010) 114 ALD 394
SECONDARY MATERIALS
Comcare, Bullying at Work: a guide for employees (December 2010)
Department of Education, Employment and Workplace Relations, Collective Agreement 2009 – 2011
Department of Education, Employment and Workplace Relations, Underperformance Procedures
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER
Ms Maria Martinez, born 1969, began working on 6 October 2005 at the Department of Education, Employment and Workplace Relations (agency) in the National Indigenous Cadet Project Program. She accepted permanent employment with the agency on 20 June 2006.
Ms Martinez sought compensation for a condition, adjustment reaction with depressive reaction. Comcare accepted that Ms Martinez suffered from an injury, and that the injury was significantly contributed to by her employment.
On 4 March 2011, Comcare denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) on the basis that the injury resulted from reasonable administrative action taken in a reasonable manner under section 5A of the Act, a decision affirmed on review on 25 July 2011.
On 18 August 2011, Ms Martinez sought further review by the Tribunal. The matter was heard in Canberra on 3-5 September 2012.
BACKGROUND
Ms Martinez moved to Canberra in 1982 and married in 1986. She subsequently had two children from that marriage; her first son was born in 1986 and the second was born in 1991. Ms Martinez was divorced in 1995 and there was a history of domestic violence. She separated from a subsequent partner in 2006. Her first son is now married and, since 2009, has lived in Brisbane. Her second son resented her separation in 2006 and generally lives with her former partner in Canberra, although for a period in 2010 he was living with Ms Martinez.
Ms Martinez’s employment history in the Australian Public Service commenced in 2005 when she was offered a contract with the agency on 8 May 2005 as a case manager, at the Australian Public Service level 3 (APS 3). She was then supervised by Ms Andrea Henson.
She successfully applied for a permanent position at the APS 3 level in June 2006 and subsequently acted at the APS 4 level as a project manager. In December 2007, she applied for a position as a contract manager (APS 5) in the National Indigenous Cadet Program (NICP) and was promoted into that position in February 2008.
Ms Martinez’s supervisor in NICP was Ms Andrea Henson who was appointed Assistant Director of the NICP in 2007. She was replaced by Mr Tobias Seldon in January 2009. The Director of NICP was Mr Tom Shiner, who had been appointed in April 2007.
Mr Rick Browne had commenced work as an APS 5 in NICP in April 2007. Ms Martinez claimed she first began to experience bullying by Mr Browne in about August 2008. In March 2009, Mr Browne moved to another branch of the agency, but he returned to the NICP in October 2009 just prior to Ms Martinez leaving the team in December of that year.
On 12 January 2009, Ms Martinez suffered an injury to her right elbow, iliac crest and lumbar spine when she fell down steps at work while retrieving her mobile phone which she had dropped when carrying tender documents. On 9 April 2009, Comcare accepted liability under section 14 for ‘contusion of elbow and forearm (right) and contusion of back (iliac crest and lumbar spine)’.
Following a flare-up of her lumbar spine symptoms in September 2009, Ms Martinez commenced an eight-week exercise program for her lumbar spine symptoms, three days per week from 3.30 until 5.00pm. She was given time off work to do so. Ms Martinez said in evidence that she experiences pain on the right side of her neck, and in her lower back. Most days the pain is manageable but some days ‘it really plays up’ and she experiences headaches and migraines.
Early in 2009, Ms Martinez applied for a transfer to the Brisbane office of the agency but learned in about August or September 2009, that she was unsuccessful. She said she had sought to move to Brisbane because of her unhappiness at work, and to be closer to her eldest son and his family.
Following this disappointment, Ms Martinez requested a move to the employment section of the agency in Canberra to familiarise herself with the type of work undertaken in the Brisbane office with a view to moving there in the future. On 7 December 2009, Ms Martinez moved to the employment team. Her supervisor was Ms Deborah Ward. Ms Martinez requested Ms Ward that she not be given too heavy an initial workload as she had NICP tasks to complete.
Ms Ward commenced weekly meetings with Ms Martinez in March 2010 with a view to improving her work performance. On 21 June 2010, Ms Ward implemented a more formal work improvement process. The two met in a spare office or meeting room and Ms Ward kept notes of the meetings and the outcomes expected. On 17 August 2010, Ms Ward discussed a Work Improvement Plan with Ms Martinez. Following this session, on 19 August 2010, Ms Martinez sought counselling from Mr John Cameron through the Employee Assistance Program (EAP). She continued seeing Mr Cameron for four more sessions, ending on 9 December 2010.
On 30 August 2010, Ms Ward again discussed the Work Improvement Plan with Ms Martinez. Afterwards, on that day, Ms Martinez saw her treating general practitioner, Dr Glenn Dillon. His certificate and clinical notes referred to an exacerbation of her lumbar spine injury, and noted ‘adjustment disorder with depressed mood’. Dr Dillon certified her fit for work from 26 February 2010 to 22 October 2010, but strongly recommended she have ‘ongoing access to a psychologist’. Ms Martinez said in evidence that Dr Dillon wanted to put her on an anti-depressant that day but she refused.
On 6 September 2010, Ms Ward informed Ms Martinez at a meeting that she had four weeks to respond and show improvement in her work. On Friday, 17 September 2010, Ms Martinez’s flex sheet was rejected for inaccuracy. Ms Martinez left work early to attend an appointment with Dr Dillon. She did not return to work that day, nor subsequently. She is still technically employed by the agency.
Dr Dillon initially certified Ms Martinez unfit to work between the time she left work on 17 September 2010 for one month, from 24 September 2010 to 15 October 2010. However, on 28 October 2010 on a Medical Certificate for Worker’s Compensation, Dr Dillon continued that certification indefinitely.
On 1 November 2010, Ms Martinez lodged a claim for workers compensation for ‘depression, anxiety’, claimed to be due to the events of 30 August 2010 and for ‘patronisation, bullying, being made to feel stupid, work colleagues speaking ill’.
On 17 December 2010, Ms Martinez made a claim for income protection for ‘stress, depression and anxiety’ for a date of injury of 30 August 2010. She was then on sickness benefit as her sole source of income. By then Ms Martinez was engaged in a horticulture course for which she has now completed about three quarters of the units and she says she may seek work in this field. In early 2011, she rented out her house so she can continue with the mortgage repayments and she has moved in with a friend.
Ms Cindy Badman of Advanced Personnel Management (APM) provided an Initial Return to Work Report on 12 November 2010 which recorded Ms Martinez as medically unfit for work. Follow up meetings occurred in December 2010, but by 14 January 2011, in the face of the continuing medical certification of Ms Martinez's unfitness for work, APM ceased its involvement.
MEDICAL EVIDENCE
Kingston Family Surgery
Ms Martinez has seen both Dr Glenn Dillon and Dr Audrey Clarke from the Surgery during the relevant period.
Dr Dillon’s clinical notes for 30 August 2010, note ‘Some issues relating to work – some performance matters/job in Qld has fallen through’ ... Has seen a counsellor about feeling depressed’. His entry for 17 September 2010 was ‘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 work place ‘deficiencies'. Has lost trust in the work place. “Thought of the family stops her doing something silly”. Counsellor recommended seeing us here’. On this occasion he diagnosed ‘Adjustment disorder with depressed mood’ and prescribed Lexapro tablet 10mg daily.
On 24 September 2010, Dr Clarke recorded Ms Martinez as ‘feeling a bit better already after 1 week’ … not suicidal, coping strategies in place, attending counselling, still a bit tearful’. On 15 October 2010, Dr Clark’s review of her depression noted her continued reluctance to return to work, but that she was ‘not suicidal, having counselling’ and ‘not keen to increase Lexapro at this point; … still tearful’. She also noted ‘No family here, has 2 sons, but younger son is making her life miserable – age 19; older son in Queensland supportive’.
On 22 October 2010, Ms Martinez saw Dr Dillon who recorded ‘Did end up taking double dose of Lexapro – steadily improving things. Still remains quite agitated with invasive thoughts. Work place remains “toxic”. Difficult to deal with nastiness at work and home. Seeing EAP next week. Lexapro 10mg ceased. Lexapro 20mg prescribed’. On 18 November 2010, Dr Dillon strongly recommended Ms Martinez changed agency and underwent psychotherapy.
Dr Dillon’s clinical notes for 12 January 2010, ‘recorded ‘significant anxiety attack with recent trip to Civic. Putting house up for rent to pay mortgage. Feels not ready to go back to her current dept. Bit of reconciliation with the boys'. Her Lexapro 20mg was increased from 1 per day to 1.5 per day.
Dr Dillon’s statement to Comcare dated 12 January 2011 said ‘Maria has an underlying predisposition to mood/anxiety disorders in direct relation to recurrent life stressors’. Nevertheless his report went on: ‘Despite this predisposition, I believe Maria has a condition directly arising from what seems to be quite significant work place incidents in the latter half of 2010’ attributed to her ‘adjustment disorder with depressed mood’, and to ‘significant social and workplace disability caused by protracted workplace harassment …prior to August 2010’. He listed 17 September 2010 as ‘the date that total disablement commenced and caused the patient to become unfit for work’, although he said he had first been consulted about the condition on 30 August 2010.
He noted that he had previously treated Ms Martinez for ‘reactive/circumstantial mood and anxiety disorder’ the last occasion being in 2007. These were for ‘significant personal and social stressors including physical injury/assault and family breakdown’. He recommended continuation of her anti-depressant medication; regular, preferably fortnightly, cognitive psychological therapy, and a transfer to a different work department. He noted that Ms Martinez:
…has quite incapacitating anxiety and panic symptoms when she is in close proximity to her 'current' workplace. I feel it would be difficult to convince her through the front doors let alone at her work station for any length of time.
He noted 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’ but went on ‘Other factors contributing include the ongoing hassles relating to her work place back injury and fluctuant interpersonal domestic matters’.
Dr Jungfer
On 23 November 2011, Ms Martinez was assessed by a consultant psychiatrist, Dr Patricia Jungfer. Dr Jungfer’s report, dated 2 December 2011, said in summary:
·Ms Martinez was suffering from ‘panic disorder’ and a ‘major depressive condition’ and that although Ms Martinez had previously suffered periods of ‘depressed mood and tearfulness associated with psychosocial difficulties’, she had not required anti-depressant medication until the events at work in 2010.
·Her conditions ‘appear to have been precipitated by her perception that her job was under threat by the criticisms and micromanagement by her employer, and the perceived harassment and bullying within the workplace’.
·Ms Martinez had been a victim of domestic violence and of an assault 10 years previously by males ‘which would indicate a particular vulnerability’ about her dealings with males and male supervisors.
·Her major depressive disorder was due to ‘the complications arising from her not being at work’, and in part to ‘issues to do with regards to the family environment’.
Dr Sheehan
On 16 December 2011, at the request of Comcare, Ms Martinez was assessed by Dr Anthony Sheehan, another consultant psychiatrist,. Dr Sheehan diagnosed ‘chronic major depressive disorder with associated panic anxiety and some features of traumatisation’, and that the condition was ‘moderately severe’. In his view, ‘Ms Martinez was experiencing some symptoms prior to 30 August 2010, but on the available history it appears that the condition became clinically significant in late August 2010’. He said in his supplementary report of 29 December 2011:
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.
He recorded Ms Martinez as acknowledging that her ‘back and neck pain … do contribute to her current psychological symptoms’ and noted that although her relationship with her younger son had improved, ‘her relationship with her ex-partner remained problematic and possibly was contributing to her symptoms’.
OTHER EVIDENCE
Ms Martinez
Ms Martinez said when Mr Browne arrived she trained him and at first their relationship was fine. However, when he became her supervisor and began to find faults in her work she said this made her feel stupid and undermined her self-confidence. When this occurred she started to make silly mistakes which compounded the problem. On occasions she said she would take the work which had been criticised to Ms Henson who confirmed there were no faults. She had previously loved the work she was doing, but after the criticisms she began to be nervous. She said Mr Seldon had also criticised her work and made her feel stupid. But she denied the accuracy of his assessment of her performance in his attachment to the agency's response to the workers' compensation claim, and said he had never raised these issues with her or warned her that her ratings might be downgraded.
When she moved to the employment team and was to be supervised by Ms Ward, she said by then she was uncomfortable, given the criticisms. However, she also found the initial work she was given to do boring. Hence she found she was also making mistakes. Then she said she was affected by an incident between her son and her ex-husband which occurred in the early part of 2010 ending with a court hearing in June 2010. She said Ms Ward had mentioned concerns about her hours in March 2010 and suggested she take some time off till her personal issues were sorted out, but she rejected this because she said 'work was the only thing keeping her sane'.
By June she said she was having trouble coming to work and would often miss the earlier bus and arrive an hour later. She said on three days a week she had to leave early for her physiotherapy and that meant her hours were getting shorter and for a while she was struggling to make up the time. In response to the criticisms of the volume of personal phone calls she was involved in, she acknowledged that her younger son would call her at work from time to time and annoy her and she said she would ask him to call her later. She rejected the comment of Ms Ward that she was 'not a self-starter'. As she said she was always looking for courses to update her skills, for self-management, and to improve her self-confidence. She said she has certificates to show this. She also said as she was having regular physiotherapy she would wait until the end of the week before putting in her leave forms which explained her delays in submitting her time sheets. She denied that there were problems with her flex sheets and that any discrepancies were only 10-15 minutes at most. She also said when she asked for help from Ms Ward she was always too busy.
From the commencement on 21 June 2010 of more formal meetings she said she felt humiliated. She was the only one being managed this way and everyone knew when she had these sessions with Ms Ward since she had to leave her workstation for the meeting. She said 'everyone kept asking me what trouble I was in'. She said 'it was toxic'.
Ms Ward
Ms Deborah Ward was Ms Martinez’s direct supervisor from 7 December, 2009. Ms Martinez was initially the only person she was supervising, but later Ms Ward was co-supervising another employee. In her statement dated 31 January 2012 Ms Ward said the initial task given to Ms Martinez, to research and update the profiles of the panel members in the Indigenous Employment Panel, was to familiarise her with the new work area. Ms Martinez had taken over six months to complete the task, which should have been done in less time, and her results contained errors. Ms Ward did acknowledge in mitigation that Ms Martinez had been told she would have time to finish carry-over work from her last position. Ms Ward also identified that Ms Martinez had difficulty with managing the spreadsheet which recorded the information. However, Ms Ward said it took her some time to realise Ms Martinez had a significant performance problem.
Ms Ward described Ms Martinez’s difficulties as ‘staying focussed on the task, attention to detail and … in working in Microsoft Excel’. She also recalled ‘Maria was receiving a lot of personal phone calls during this time and these would often result in her getting visibly upset and leaving work early to deal with issues’. The issue of personal phone calls and its distracting effect on others was raised by Ms Ward with Ms Martinez in February/March 2010, following Ms Ward’s discussion of the issue with her own supervisor. Ms Martinez was recorded as saying in response ‘she was trying to deal with family problems’. At the hearing, Ms Ward said only that Ms Martinez was receiving one to two personal calls a day, and it was only on occasions that she got upset or had to leave to assist her family.
In her statement Ms Ward detailed the management program she had instituted in order to assist Ms Martinez. Initially she said she had offered an hour a week for any assistance Ms Martinez might need, but this offer was only accepted once. As she became aware that Ms Martinez was having some difficulties she instituted what she described in her statement as a ‘more formal weekly meeting’ from March 2010, which was further escalated with a ‘new level of formality’ from 21 June 2010. Ms Ward said that Ms Martinez would not have been surprised at the more formal discussions from 21 June 2010 since, with the exception of the time-sheets, she had earlier indicated her concerns about work performance to Ms Martinez.
For the more formal meetings which commenced on 21 June 2010 Ms Ward wrote minutes of the meetings and sent a copy to Ms Martinez for comment. The performance concerns listed in the record of the meeting on 21 June 2010 noted: 'Time spent at work is getting shorter'; work generally being done 'to a low standard, being partially finished or not being done at all'; and failure to register personal leave 'in a timely manner'. At the meeting Ms Martinez became upset and burst into tears. Ms Ward described the meetings as ‘not formal work performance procedures’ but ‘informal weekly work performance meetings’.
On 2 August 2010, Ms Ward completed her performance appraisal of Ms Martinez for the period 7 December 2009 to 30 June 2010. Ms Martinez overall was rated ‘good’, the same rating as her previous appraisal for the mid-cycle, a default rating, she said, given the shortness of time for assessment, and ‘satisfactory’ for the Key Deliverable Rating for the end of cycle in June 2010. In oral evidence, however, Ms Ward said Ms Martinez was working closer to a 'satisfactory' level rather than 'good'. However, she said she had been happy with the rating as, at that time of the initial assessment in April 2010, Ms Martinez was still finding her way in the team and finalising work from her previous team.
Ms Henson
Ms Andrea Henson has been employed by the agency since 2004 and was supervisor of Ms Martinez in NICP from 2006 until she left the team in July 2009 and the branch in June 2010. Ms Henson became the manager (EL1) of the team from 2007. Her focus as manager was to improve the self-confidence of the team, including Ms Martinez. She said Ms Martinez's performance improved from 'Satisfactory' to 'Outstanding' while she was her supervisor. In her view, Ms Martinez's strengths were in contract administration and process work and she also relied on Ms Martinez to train others.
She acknowledged that she and Ms Martinez developed a friendship but said this did not result in her favouring Ms Martinez at work. She acknowledged there was some gossiping and harassment of Ms Martinez, but put this down to resentment of Ms Martinez's promotion to an APS5. Mr Henson disagreed with a number of the criticisms that Mr Seldon made of Ms Martinez's abilities. She said of his statement that 'some of the things he says are unfounded, untrue and cruel'. She acknowledged that Ms Martinez's writing skills needed development but said she had strong numerical skills. She also acknowledged that 'there was a lot of backstabbing going on' in Ms Ward's area while Ms Martinez was there.
Mr Levi
Mr Monwell Levi had worked in the NICP team in April 2007, the time when Mr Browne also arrived. The pair were trained by Ms Martinez. He left the agency in early 2012. He also acknowledged that for a time from August 2009 he rented a room in Ms Martinez's house. He noted that the team was working under pressure in 2009. In his view the gossip in the team was bad in 2009 when there was tension between Ms Henson, and Mr Sheldon and Mr Browne. The consequence he said was that 'Our area was very tense'. He though the problems between Mr Browne and Ms Martinez occurred because Ms Martinez and Ms Henson were friends. He said he noticed that if he did not like them Mr Browne using the same kind of intimidating tactics he had used with Ms Martinez against others. He said that included 'unnecessarily highlighting minor errors and making a big deal of them in front of other people'.
Mr Seldon
Mr Tobias Seldon joined the agency as a mature age graduate trainee in 2007 having previously worked in the private sector for over ten years. In April 2008 he was promoted to an APS 6 position, and in January 2009, he became an Assistant Director (EL1) in NICP. He was Ms Martinez’s supervisor for 11 months until she moved to the employment team.
His view, repeated in oral evidence to the Tribunal, was that Ms Martinez was promoted above her level of competence. In his undated statement for the purposes of the worker's compensation claim, he identified her deficiencies as relating to: writing skills; below average numerical and conceptual abilities; poor interpersonal communication faculties; poor attention to detail; being generally disruptive; unable to follow directions; and being reluctant to develop new skills or learn new procedures. He said her 'short-fallings were widely recognised across the Branch'. In part he blamed this behaviour on Ms Henson with whom he stated Ms Martinez had ‘formed a personally intimate relationship’. In cross-examination he claimed that he picked up these criticisms of Ms Martinez from members of other teams, but denied that this was gossip, although he had never checked the accuracy of the information.
Mr Seldon stated that during his eleven months as Ms Martinez's supervisor, he had discussed with Mr Shiner, the Director, the need to implement performance management of Ms Martinez, but Mr Shiner had not accepted the suggestion in part because of her contribution to the team and because Ms Martinez was moving to another area. He said his rating of ‘good’ for key deliverables in Ms Martinez's mid-year assessment in 2009/2010 was accompanied by comments indicating her performance was borderline at that level and was designed to avoid demoralising her while giving her a warning. He referred in that context to an error allegedly made by Ms Martinez in relation to a contract which he had identified and the agency had to mitigate. He also noted her poor attendance and that she ‘was slack with timesheets’ but commented ‘this was common to the team’. He said Ms Martinez ‘spent an inordinate amount of time on personal matters at work’. In relation to the claim by Ms Martinez that Mr Seldon ‘patronised her’ and ‘made her feel stupid’, he said he could only explain this as being due to his correction of her mistakes, and suggestion she amended her work, which he regarded ‘as a normal business request’.
Ms Stevenson
Ms Lynne Stevenson, the Branch Manager (Senior Executive Service Band 1) in charge of NICP, denied that Ms Martinez had ever raised with her that she was being bullied or harassed by Mr Seldon or Mr Browne. However, she conceded that ‘there was conflict and tension between staff members in Mr Shiner’s team at the time’. She also denied that she had breached her confidence when Ms Martinez had disclosed to her an assault that occurred between her ex-husband and younger son, information which according to Ms Martinez was known within the agency next day.
She said that while Ms Martinez was working to Ms Ward, there were concerns about her performance and ‘performance management procedures were commenced 'informal at first, with a view to progressing to more formal procedures’. She said she understood the situation was handled in accordance with the Department’s underperformance procedures. In the hearing she confirmed that no formal underperformance processes had been instituted. She said she had found Ms Ward to be ‘a very competent and caring manager’ and said she would not characterise her treatment of Ms Martinez as ‘bullying or harassment’.
She acknowledged that it could be difficult for relatively junior or inexperienced ASO5/6 supervisors effectively to carry the responsibility of discovering something more is amiss than incompetence when performance assessing an employee, particularly where depression was involved, given the stigma attached to that condition. As she said supervisors are not trained psychologists or psychiatrists. However, they are expected to be sensitive to personnel matters and to refer to appropriate assistance. The preferable approach was for them to refer the person to trained personnel such as those involved in the Employee Assistance Program (EAP). However, she also noted that EAP counsellors are prohibited, without the consent of the employee, from disclosing information obtained in an EAP session. In those circumstances, personal problems would not become known to supervisors.
Mr Browne
Mr Rick Browne worked in NICP from April 2007 until March 2009 when he said he requested a transfer as he felt isolated in that area. Initially he was an APS5, but then acted for a while at the APS6 level and was confirmed in that position in December 2007. As supervisor of Ms Martinez he noted that she complained about his bullying behaviour from the end of 2008 and beginning of 2009. He said this was about the time he began raising concerns with Ms Henson about errors made by Ms Martinez in her work.
His principal complaint was with Ms Henson. In his view she was a personal friend of Ms Martinez and did not support him in dealing with Ms Martinez's work errors nor prevent Ms Martinez bypassing Mr Browne and going straight to her. In his view, this was unprofessional of them both. He denied Ms Martinez's claim that he bullied and harassed her and noted that she had made no complaints of this nature to anyone prior to the lodgement of the workers' compensation claim. He also denied discussing Ms Martinez's personal issues other than as they affected her work. In his view the team was 'very dysfunctional'.
Mr Shiner
Mr Tom Shiner was appointed as the Director (EL2) in charge of NICP in April 2007. Ms Henson was then his EL1 with both Ms Martinez and Mr Monwell Levi as APS4s. Ms Martinez was promoted shortly after his arrival to an APS5. In early 2009, Mr Seldon replaced Ms Henson as the EL1. Mr Rick Browne was Ms Martinez's immediate supervisor.
Mr Shiner said when he first arrived he noticed that the reporting arrangements needed clarification and he implemented changes which resulted in each level reporting directly to the person immediately senior to them. He said he recalled vaguely Mr Browne complaining that junior staff were not reporting directly to him. He did not recall Ms Martinez specifically being mentioned.
He did not recall Ms Martinez's level of absenteeism being notable. That was in a context in which he said he could remember only 'two or three work days during his time with NICP when the full staff complement were all present at work'. Nor did he see her volume of personal phone calls as untoward given the general practices in the team. In his statement he said 'the team functioned harmoniously, professionally and collegiately'. In oral evidence, however, he modified that to saying 'it was a fairly effective and efficient workplace'.
He understood that Ms Martinez had some personal problems but said in his view the team were all supportive of her and he did not recall it being said that these issues were impacting negatively on her work. Nor did he recall anyone complaining about being bullied by Ms Martinez. Equally Ms Martinez had never complained to him she had herself been bullied.
He also said he found her work to be 'of an acceptable standard' and when Mr Seldon wanted to reduce her performance rating for the end of year round in 2009/2010, he rejected his advice, partly because of her good work with the team over several years, the absence of any formal complaints about her work, in order to give her a new start in the area she was moving to. and because she had not been formally advised that her work was below standard. He acknowledged a problem with the contract for the cadetship program and the inappropriateness of Ms Martinez's advice to the cadets to resign but said the issue should have been identified by her supervisor, and it was not her wrongdoing.
ISSUES
The specific issues in relation to the decision are:
·What was the date of Ms Martinez’s injury;
·Whether Ms Martinez’s condition was contributed to, to a significant degree, by her employment; and
·If so, whether her condition was the result of reasonable administrative action taken in a reasonable manner in respect of her employment.
LEGISLATION
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides that Comcare is liable to pay compensation under the Act for an injury suffered by an employee which results in incapacity for work. ‘Injury’ is defined in section 4(1), and section 5A(1), and includes a ‘disease’. If the injury is a ‘disease’ it is further defined in section 5B(1).[1] A psychological injury such as an adjustment disorder, provided it is ‘outside the boundaries of normal mental functioning and behaviour’,[2] is classifiable as a disease. Liability for a disease is excluded, however, if the injury has been suffered ‘as a result of reasonable administrative action taken in a reasonable manner’ (section 5A(2)). The date of injury is found in section 7(4) of the Act.
[1] Act section 5A(1).
[2] Comcare v Mooi (1996) 169 FCR 437 at 444.
Although not legislative, attention is needed to the agency's underperformance procedures and policies contained in the DEEWR Collective Agreement 2009-2011 (Agreement) and the agency's Underperformance Procedures. The Agreement provides that: Clause '270. Underperformance is identified when a manager makes an assessment that an employee's performance in unsatisfactory'. Clause 271 provides that 'Further information is contained in the Underperformance Procedures'. 'Unsatisfactory' is the lowest performance level in the DEEWR performance appraisal system (clause 267 of the Agreement).
The Underperformance Procedures contain 'procedures for supervisors to follow when managing underperformance of an employee' , and provide in clause 3:
Underperformance arises when a manager makes an assessment that an employee's performance is unsatisfactory and advises the employee. Once an employee's performance has been rated as 'unsatisfactory' on either key deliverables or observable work behaviours the Underperformance Procedures must apply.
Comcare's Bullying at Work: a guide for employees was also relevant. What is 'bullying' was described in the guide as:
Bullying is repeated unreasonable behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to a person, or group of person which creates a risk to health and safety.
Workplace bullying can be:
·Intended - where actions are intended to humiliate, offend, intimidate or disress, whether or not the behaviour did in fact have that effect;
·Unintended - which although not intended to humiliate, offend, intimidate or distress, did cause and should reasonably have been expected to cause that effect.
CONSIDERATION
Date of injury
Comcare’s view was that the date of injury was 30 August 2010, that is, the date Ms Martinez visited Dr Dillon and he first diagnosed ‘Adjustment disorder with depressed mood’. Counsel for Ms Martinez suggested that the choice of date was 'quite complicated'. Ms Martinez stated in her claim for workers’ compensation that she was first injured on 31 August 2010. Ms Stevenson who completed Part 2 of the claim form, based on the medical certificate noted that the date was 30 August 2010.
Section 7(4) of the Act fixing the date of injury, states:
7 (4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
On 30 August 2010 Dr Dillon first diagnosed Ms Martinez’s adjustment disorder. Although he certified Ms Martinez as able to work and did not prescribe any medication for the condition, according to Ms Martinez he had wanted to do so, and he had strongly recommended she see a psychologist.
Dr Sheehan’s report noted, based on the history, that in his opinion Ms Martinez’s psychological condition ‘became clinically significant in late August 2010’.
This evidence satisfies the Tribunal that Ms Martinez first sought medical treatment for her adjustment disorder on 30 August 2010. Accordingly that is the date of injury for the purposes of this application. That condition had progressively been developing for some time and it is in that context that the next question must be considered.
Was condition contributed to, to a significant degree by employment
Counsel for Comcare contended that personal issues Ms Martinez was facing were more significant than the events in the workplace leading up to 30 August 2010 in her development of the condition. Counsel argued that Ms Martinez had been the victim of domestic violence; she imagined her confidence to Ms Stevenson had been betrayed which caused her to lose trust in the public service; she had ongoing problems with her partner from whom she had separated in 2006, with her ex-husband, and she had a difficult relationship with her younger son. In addition, she had been disappointed when she was not redeployed to Brisbane; she had an accepted injury from 2009 which required ongoing treatment particularly after the condition in her elbow, forearm and lumber spine flared up in 2010; and, in the first half of 2010 she had to deal with the legal proceedings for an assault involving her younger son and her ex-husband.
Against that, the Tribunal notes that the contemporaneous clinical notes of Dr Dillon for 30 August 2010 and 17 September 2010 focus heavily on her reporting of work, not other, issues. Equally, the principal focus of Dr Clarke's notes for 24 September 2010, although after the date of injury, was that Ms Martinez was no longer suicidal and was attending counselling. Although they note 'her younger son is making her life miserable' that comment came at the end of the notes. Dr Dillon's report of 22 October 2010 again referred to 'work place remains "toxic", difficult to deal with nastiness at work' and strongly suggested she changed agency, although he also mentioned nastiness also 'at home'. The tenor of his notes, however, indicates his view that it was the workplace which was a major source of her health problems.
Dr Jungfer referred to her condition 'being precipitated by her perception that her job was under threat' and the conditions in the workplace, although she did also mention her family environment. Dr Sheehan noted that her 'acute agitation' was due to Ms Martinez being queried about her flex-sheet and her being certified as unfit for work. He also noted that Ms Martinez recognised that her accepted back and neck also made a contribution and possibly also her relationship with her ex-partner.
The Tribunal, while acknowledging that there were other, family-related issues and her accepted neck and back pain which made a contribution to her symptoms, is nonetheless satisfied that the medical evidence predominantly identified events in the workplace as the triggers for Ms Martinez's psychological condition. The Tribunal notes too that Comcare's reviewable decision concluded that Ms Martinez's employment made a significant contribution to the development of her condition and on the evidence the Tribunal agrees with that finding. That leaves for discussion whether liability under 14 is denied because those events can be characterised as reasonable administrative action taken in a reasonable manner (section 5A of the Act).
Reasonable administrative action
‘Administrative action’ is ‘action with respect to the employee as employee and his or her employment relationship with the employer’.[3] The events in the workplace that contributed significantly to Ms Martinez's condition up to and including 30 August 2010 are:
·events in NICP prior to Ms Martinez moving to the employment team;
·management by Ms Ward as supervisor, including meetings beginning 21 June 2010; and
·claims of bullying and harassment of Ms Martinez by Ms Ward.
In relation to the first point, the evidence has indicated that the actions of her NICP supervisors related to the performance of Ms Martinez as an employee are administrative actions. The Tribunal is satisfied on the evidence that the actions made a contribution to Ms Martinez's adjustment disorder even though her psychological condition was not manifested until some eight months later.[4] To the extent that these actions were directed at Ms Martinez, and not to the team as a whole, they were administrative actions. The second dotpointed administrative action can be characterised as action with respect to Ms Martinez as an employee in relation to her employment relationship with the agency. These actions would also have fallen within the informal counselling referred to in the non-exhaustive examples of administrative actions in section 5A(2)(a), (e) of the Act. The claims of bullying and harassment would not be covered by the exclusion in section 5A. Such action could not meet the objectively reasonable requirement in that provision.
[3] Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181, per Gray J at [30]; agreed to by Rares & Tracey JJ at [57].
[4] Hart v Comcare (2005) 145 FCR 29.
Were the administrative actions reasonable?
What is ‘reasonable’ is a question of fact.[5] Reasonableness is a chameleon-like concept, tailored to the specific circumstances, including in this matter, the criteria relating to Mr Thompson’s employment in the Australian Public Service.[6] As a minimum, to be reasonable the action must be lawful.[7] The test is objective[8] and requires an examination of whether the administrative action is ‘sensible, moderate, … tolerable [and] fair’.[9] The administrative action may be ‘not greatly less nor more than might be expected’[10] in the circumstances.[11] This requires an exercise of judgment about which, in borderline or difficult cases, minds may differ.[12] The principal contention by counsel for Ms Martinez was that the actions by Ms Ward in instituting meetings, particularly those from 21 June 2010 onwards, and her discussion of a Work Improvement Plan, were actually underperformance processes. He contended her actions were not reasonable as Ms Martinez had not been rated 'unsatisfactory', a pre-requisite to such processes under the Agreement and the Underperformance Procedures.
[5] Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [76].
[6] Re Lynch and Comcare (2010) 114 ALD 394 at [106].
[7] Comcare v Chenhall (1992) 37 FCR 75; Re Lynch and Comcare (2010) 114 ALD 394 at [105].
[8] Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [66].
[9] Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009) at [22].
[10] Ibid.
[11] Ibid.
[12] Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [76].
Counsel for Comcare contended that informal processes of the kind implemented by Ms Ward were in fact required as a pre-requisite to underperformance procedures. Ms Stevenson and Mr Shiner stressed that an unsatisfactory rating should never be a surprise to an employee and that there must be fair warning and a fair opportunity to improve performance. Counsel contended that Ms Ward's actions in implementing these work performance meetings fell within this category and were reasonable.
Events in NICP prior to Ms Martinez moving to the employment team
Dr Dillons’s report referred to the cause of her condition being ‘protracted workplace harassment … prior to August 2010’; Dr Jungfer to ‘perceived harassment and bullying within the workplace’; and Dr Sheehan’s report noted that Ms Martinez ‘was experiencing some symptoms prior to 30 August 2010’. It was apparent from the evidence of Ms Martinez, Ms Henson, Mr Levi, Mr Seldon, Ms Stevenson and Mr Browne, that there was disharmony, tension and unhappiness in the NICP team while Ms Martinez was working there. That environment was the context for Ms Martinez's complaints of bullying and harassment and was pertinent to Ms Martinez’s reaction to her treatment by Mr Seldon and Mr Browne, and to Ms Ward’s treatment of her.
The Tribunal accepts that Mr Seldon’s and to an extent, Mr Browne’s management of Ms Martinez led to her feeling patronised and stupid. The Tribunal accepts that Mr Seldon’s criticisms made her feeing nervous, and she sought to move to the Brisbane office because of her unhappiness at work. Mr Seldon had clearly decided that Ms Martinez was incompetent and did not hide this from her and there was evidence that Mr Browne was inclined to highlight minor errors, including those of Ms Martinez, and make a ‘big deal’ of them, as Mr Levi noted, in front of other people.
Ms Henson left the NICP in July 2009 and the branch about twelve months later. The removal of that support by Ms Henson and the substitution of Mr Browne and Mr Seldon as her supervisors in the latter half of 2009, meant that by the time Ms Martinez was redeployed to the employment team, the work Ms Henson had done in improving Ms Martinez’s self-confidence, had been undermined. Ms Martinez's perceptions of physical harassment, the correction of her work, and critical emails to the team, or comments on files on which she had worked, had led to her feeling patronised and inadequate and to a loss of her confidence and self-esteem. These perceptions were relevant to Ms Martinez's reactions to Ms Ward's interventions in 2010 and are the background to the following discussion.
The administrative actions by Mr Seldon and Mr Browne were administrative actions which were at the least insensitive, and were bordering on the unreasonable. It was significant that Mr Shiner, who had been in NICP longer than Mr Seldon, did not accede to Mr Seldon’s request that he commence underperformance with Ms Martinez because of her valued contribution to the NICP team; and that Ms Henson, when shown Mr Seldon’s remarks concerning Ms Martinez in his attachment to the agency’s response to the worker’s compensation application, said they were unfounded, untrue and cruel. The Tribunal makes no findings of unreasonableness on these administrative actions but they are the context in which the following discussion occurs.
Management by Ms Ward as supervisor, including meetings beginning 21 June 2010
The evidence about Ms Martinez's performance at work is variable. In the period to the mid-cycle of the 2009/2010 year, Ms Martinez had not been rated below 'good'. It was not until the end of that year's cycle, that her rating on key deliverables was reduced to 'satisfactory'. She had never been rated 'unsatisfactory’.
Nonetheless, it was clear, on her own admission, that initially she had difficulties assimilating the type of work and adjusting to the work practices in the employment team. She said by March/April 2010, she began to understand what was required. Nonetheless, there was evidence from Mr Seldon, and Mr Browne about her deficiencies in performance while in NICP, and from Ms Ward in 2010 that her work was slow, lacked attention to detail, and she had problems with some IT programs. Ms Martinez admitted that after she moved, she realised she was making silly errors in her work. She attributed these to her confidence having been undermined by her previous period under Mr Seldon and Mr Browne.
Despite the ratings, and the comments by Mr Shiner that he had found her work to be of 'an acceptable standard' and of Ms Henson, that Ms Martinez's strengths were in contract administration and process work, both being skill-sets required in the employment team, the Tribunal accepts that Ms Martinez did need to improve her performance before she became an effective team member in the new area.
In those circumstances, it was reasonable for Ms Ward, being her immediate supervisor, to institute a program of education and assistance for Ms Martinez. That was good management practice. Nor is the Tribunal satisfied that Ms Ward’s introduction in March of informal meetings with Ms Martinez were an inappropriate means of doing so. Ms Ward initially offered Ms Martinez an hour a week for any assistance, but this was only availed of once. When Ms Ward’s concerns were heightened in March 2010 because Ms Martinez was not completing work in a timely fashion, she instituted a weekly meeting at their desk stations. This was reasonable administrative action. The real issue is whether, when that process had not resulted in sufficient improvement, Ms Ward’s implementation in June 2010 of the more formal process of a weekly meeting in a separate room was reasonable.
The introduction of some different approach was not unreasonable in the context of the history of the attempts by Ms Ward to institute work improvement processes for Ms Martinez. A question relating to reasonableness, however, is whether the more formal meetings were a form of disguised Underperformance Procedures process.
The role of the supervisor in the Underperformance Procedures, as set out in the Underperformance Procedures and as relevant to the feedback processes are to:
·Ensure all employees have an Individual Performance and Development Plan (IPAD) in place;
·Provide objective and constructive feedback about any areas where an employee’s performance is not meeting required standards as set out in their IPAD;
·Discuss possible reasons for the underperformance with the employee.
Ms Martinez had an IPAD in place, dated 7 December 2009, which applied to her work in the employment team. It was signed by Ms Martinez in April 2010. However, it was not completed until comments were provided by Ms Ward on 2 August 2010. That raises a question of whether it was ‘in place’ in June 2010. Nonetheless, Ms Martinez would have been aware of its content as she had signed it in April. Key deliverables included 'working with the IEP Employment panel profiles assuring all information is available in desired time frames', and development of her writing skills. There was an Observable Work Behaviours field, including 'being accountable and responsible for our work'.
The concerns expressed by Ms Ward in her documented meetings with Ms Martinez commencing on 21 June 2010 were reflected in the IPAD (tardy and inaccurate completion of the updating of the IEP Employment panel information), and work behaviours (including failure to update Work Plan, issues with attendance, tardy entry of leave applications). These are matters taken into account in the performance appraisal of Ms Martinez according to her IPAD. Any discussion by a supervisor of work behaviours, or deficiencies in output, is necessarily a matter which would be discussed at a meeting between a supervisor and an employee and issues such as these also come up in a performance appraisal.
The Tribunal is satisfied that the processes adopted by Ms Ward in June 2010 were akin, in their purposes, to those involved in underperformance procedures as set out in that document. Ms Ward was focusing on concerns about Ms Martinez’s performance in nominated areas of performance and was taking steps to assist her to improve in these areas, means of improvement were identified, and the meetings were minuted and a timetable for outcomes implemented. It is noteworthy, although she denied the correctness of her understanding at the hearing, that Ms Stevenson’s statement said that Ms Ward had commenced underperformance of Ms Martinez.
The Tribunal is aware, however, that processes of this kind would not be uncommon for managers who are assisting junior staff, and to designate these procedures as unreasonable because they appear to be disguised underperformance processes, without more, would not be justified. The steps taken, however, should be seen in the light of the approach taken to their implementation.
Administrative action taken in a reasonable manner
The final issue is whether the actions taken, principally by Ms Ward, were undertaken in a reasonable manner. In Re Georges and Telstra Corporation Ltd Dr Campbell addressed the issue of what it means to take action ‘in a reasonable manner’. As he put it:
[T]he fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry should be considered. ...[W]hile the assessment of ‘in a reasonable manner’ relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instruction that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action ... taken.[13]
[13] Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009) at [69]
Counsel for Ms Martinez claimed that Ms Ward breached the 'reasonable manner' requirement on two counts: she humiliated Ms Martinez by instituting meetings in a separate room when others could see that the process was being undertaken; and did not enquire further into the personal circumstances of Ms Martinez and so failed to exercise her supervision and improvement function in a reasonable manner. The Tribunal also considers whether adequate consideration was given to the particular circumstances of Ms Martinez by Ms Ward.
The Tribunal notes that use of a separate room for the meetings from 24 June onwards attracted a degree of notoriety attending the arrangement. Ms Martinez said others in the team noticed the interactions and used to quiz her afterwards and ask her what she had done wrong. So although the seriousness of Ms Martinez’s performance deficiencies justified Ms Ward changing her approach, there is a need to consider whether the approach adopted was reasonable.
That conclusion is reinforced by, the guideline on bullying. The guideline indicates that whether intended or not if, objectively, the effect of action by a supervisor is to humiliate, offend, or distress an employee and that this 'should reasonably have been expected', it amounts to bullying. Ms Martinez said as she was the only one being managed this way and everyone knew when she had these sessions with Ms Ward, 'it was toxic'. In those circumstances, the approach adopted of having one on one meetings with Ms Martinez in a separate room, was insensitive. Ms Ward should have anticipated the reactions of others and its impact on the employee in a small team and that feelings of humiliation 'should reasonably have been expected'. The Tribunal is, accordingly, satisfied that in accordance with the agency’s guidelines, this was bullying. To bully someone is not to conduct administrative action in a reasonable manner.
These findings also raise the issue of whether Ms Ward took into consideration 'the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action', as well as 'the circumstances of the individual that could have become known by simple enquiry'. Ms Ward, along with others in the team, was clearly aware that Ms Martinez was having problems in her personal life. Ms Martinez had told her so, and it was common knowledge in the teams in which she worked, not least through Ms Martinez's telephone conversations, and her discussion of the issues with colleagues. Ms Ward's awareness was indicated by her suggestion to Ms Martinez that she should consider taking leave to sort out her personal issues, a suggestion Ms Martinez rejected, and by her recommendation that she see an EAP counsellor. On balance the Tribunal finds that Ms Ward did not fail to make sufficient inquiries of Ms Martinez about her circumstances. In other words, her actions in this regard were not taken in an unreasonable manner.
However, although aware, the issue is whether Ms Ward gave adequate consideration to these personal circumstances in her management of Ms Martinez. Ms Stevenson said it was not appropriate for an untrained supervisor to deal with psychological issues or serious personal problems. So much can be accepted. However, the ‘reasonable manner’ test does not require ‘dealing with’ the issue. Rather it only requires taking it into consideration and modifying proposed administrative action if necessary. So although Ms Ward was sufficiently sensitive to identify that Ms Martinez had a need for such assistance and to recommend she take leave and seek counselling with the EAP service, that was not sufficient to show she had given consideration to Ms Martinez’s circumstances in her choice of administrative action in relation to Ms Martinez.
The particular administrative issue is whether there were other actions she could have taken to address Ms Martinez’s performance needs without humiliating her by the more formal meetings in a separate room, given her knowledge that Ms Martinez had personal and professional issues, that she had poor self-esteem, and that the management she had instituted hitherto had not been sufficiently effective. The Tribunal considers there were alternative options. She could have sought advice from her superiors or from the human resources team about an alternative approach. Neither of these steps was beyond her personal or professional competence. She did not take them. Instead, to have implemented what could be characterised as an underperformance procedure without the protections for the employee built into that procedure and without going through the formal step of a finding of ‘unsatisfactory’ at a performance appraisal, and to do so in a manner which could reasonably be anticipated would result in the humiliation of the employee, was not tolerable or fair in the circumstances and meant she did not undertake her management action in a reasonable manner.
In these circumstances, the Tribunal sets aside the decision under review and remits the matter to Comcare with a direction that liability for Ms Martinez’s adjustment disorder is not excluded by administrative actions which were not taken in a reasonable manner.
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of PROFESSOR RM CREYKE, SENIOR MEMBER
.........................[sgd].....................................
Associate
Dated 14 November 2012
Dates of hearing 3 - 5 September 2012 Counsel for the Applicant Leo Grey Advocate for the Applicant Jamie Ronald Solicitors for the Applicant Colquhoun Murphy Counsel for the Respondent Rhonda Henderson Advocate for the Respondent Bradley Dean Solicitors for the Respondent Australian Government Solicitor
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