Marilyn Dango and Comcare
[2013] AATA 597
[2013] AATA 597
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3438
Re
Marilyn Dango
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 23 August 2013 Place Melbourne The decision of Comcare, made 20 June 2012, denying liability to compensate Mrs Dango in respect of the condition of depression which was contributed to by her employment by the Department of Immigration and Citizenship, is affirmed.
.........................[sgd]...............................................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – depression – whether employment contributed to a significant degree – whether reasonable administrative action taken in a reasonable manner – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14
CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Wang and Comcare [2012] AATA 242
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Mrs Dango is employed by the Department of Immigration and Citizenship.
During 2011 Mrs Dango suffered from a psychological condition to which her employment contributed to a significant degree. She lodged a claim with Comcare seeking compensation for this condition. Such a claim may be made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Comcare has denied liability to pay compensation to Mrs Dango on the basis that her condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Under the Act compensation is not payable in these circumstances.
Mrs Dango has applied to this Tribunal to review Comcare’s decision. For the reasons which follow the decision will be affirmed.
EVIDENCE AND FINDINGS OF FACT
Unless stated otherwise the following findings of fact are based on the evidence of Mrs Dango. I am satisfied of the facts found on the balance of probabilities.
In 2009 Mrs Dango commenced employment in the role of Finance Officer in the Settlement and Multicultural Affairs Branch of the Department of Immigration and Citizenship. Her position was classified as APS4. She was the only Finance Officer in the Victorian office of the Branch.
Mrs Dango enjoyed her role and took on additional tasks from time to time at the request of her employer. Some of the additional tasks included administrative work for the Detention Review Management team. From July 2010 onwards these additional tasks engaged Mrs Dango for about one half of her time on a daily basis.
In October 2010 Ms del Rio, Mrs Dango’s supervisor, conducted Mrs Dango's mid-term appraisal. This was part of the Department’s normal process for reviewing the performance of staff. During this process Mrs Dango requested that she be considered for higher duties allowance to compensate her for the extra work she was doing. She repeated this request during an appraisal process in February 2011. Mrs Dango was not granted the allowance she sought.
On 30 March 2011 Mrs Dango received an email from her Manager, Ms El-Atrache, in the following terms:
I had a chat with Anna yesterday to update her on our recent discussions regarding the Finance role. The position description will be updated to reflect the removal of DRM work and inclusion of CCS invoices.
Anna advises that Paula [Ms del Rio] and I need to know, step by step, the procedures you perform for IHSS, SGP and CCS finances. Paula has completed the e-learning modules, but now we need to see it in practice.
I suggest that we use the session on Friday as the beginning of this process. You have suggested that we start with goods receipting. We can then work out a schedule for the other tasks.[1]
[1] Exhibit R1 p.119.
On receiving this email Mrs Dango became increasingly concerned that Ms del Rio and Ms El-Atrache were planning for Ms del Rio to take over her work. Mrs Dango had formed the opinion that they had become less communicative with her during the preceding three months and that at times Ms del Rio had taken away work which she (Mrs Dango) had intended to do.
Later on 30 March 2011 Ms El-Atrache emailed Mrs Dango as follows:
This is not intended to cause you to feel alarmed. I need to know what you do so that I can manage the team’s workload while you are away on leave, or if someone asks me questions about finances etc in your absence. As an example, when I first joined the team I sat with Hannah so she could show me exactly what she does, step by step so that when she went overseas I was able to cover her work. I did the same with Donna.
If there is a spike in our workload I need to know what capacity each person in our team has to share in the work.
I feel I have a handle on the rest of the team’s work, now I need to make sure I am reasonably confident with your side of the pie.
I hope this clarifies.[2]
[2] Exhibit R1 p.118.
In cross-examination Mrs Dango agreed that it was appropriate for her Supervisor and her Manager to learn how she performed her tasks so that members of the team would be able to undertake her work when she was on leave or there were increases in workload.
In April/May 2011 an assessment of Mrs Dango's position was conducted by the Workforce Planning section of the Department’s National Office. Before the assessment was carried out Mrs Dango was informed that she and Ms del Rio would be interviewed as part of this process.
Mrs Dango received an email advising her that the job assessment had been completed and that her job classification remained as APS4. Mrs Dango then requested that she be provided with a copy of Ms del Rio’s comments and a copy of the job assessment. After some delay these documents were provided to her on 9 June 2011.[3] A copy of the documents provided appear at pages 108-114 inclusive of exhibit R1.
[3] Exhibit R1 p.114.
In an email which attached the documents requested by Mrs Dango, Mr Yates (who conducted the assessment) advised Mrs Dango that:
I would like to reiterate again that these scores are an individuals [sic] perception of the requirements of the role (not of the individual performing that role).[4]
Mrs Dango told me that at the time the assessment was conducted she probably did not understand the process correctly.
[4] Exhibit R1 p.114.
Mrs Dango was upset by the contents of the documents received. In particular she formed the view that neither Ms del Rio nor Ms El-Atrache was qualified to comment upon her position in the manner in which they did.
In late May or early June 2011 it was announced at a Branch meeting that the Branch was to be restructured. Mrs Dango had left the meeting early, before the announcement was made. She learned of the proposed restructure from her colleagues later the same day.
Within a few days of the Branch meeting Mrs Dango attended a team meeting. At that meeting Ms El-Atrache advised those present that the need for a restructure was caused by budget cuts and that it was not known what positions would be affected. Mrs Dango's position was not mentioned specifically.
On 10 June 2011 Mrs Dango met with Ms Hughes, at the time the Acting Director of the Branch. During this meeting, which lasted approximately 45 minutes, Mrs Dango told Ms Hughes of the extra tasks she had been performing and why she believed her position should be reclassified. Ms Hughes told Mrs Dango that she should not have used words such as “deceitful” in an email she sent to Mr Yates on 10 June 2011.Mrs Dango also told Ms Hughes of her concern that Ms El-Atrache had not assisted her in obtaining two other positions for which she had applied and that she was becoming ill as a result of what was happening to her at work.
Mrs Dango was ill and unable to attend work for two days after the meeting with Ms Hughes. She was upset as a result of the comments which had been made by Ms El-Atrache and Ms del Rio in the job assessment process.
Mrs Dango’s last day at work prior to her taking planned leave was 21 June 2011. On that day Ms Hughes told Mrs Dango that there were going to be job restructures as a result of the budget position. Ms Hughes made no reference to Mrs Dango's position. At this time Mrs Dango was confident that she would retain her position in any restructure.
Mrs Dango returned to work after her leave on 29 July 2011. Early that day, Mrs Dango met with her Director, Mr De Vere, and Ms Hughes. Mr De Vere said to Mrs Dango words to the following effect:
Today is your last day, you won’t be required tomorrow. We have had a job restructure due to budget cuts.
Mr De Vere told Mrs Dango that they had found her a temporary position for three months in the Detention Review Management Team. Mrs Dango told Mr De Vere that she would accept the job offered as there was nothing else available for her. She also told him that she did not want to lose her career in finance. She asked that she be referred to the Australian Public Service Commission for redeployment so she could find another financial role. Mr De Vere said that he would “look into it”.
On 30 July 2011 Mrs Dango commenced work in the Detention Review Management team. This was the team for which she had been doing substantial work in her role in the Settlement and Multicultural Affairs Branch.
Following her transfer to the new position, Mrs Dango was concerned that her employment may be terminated. Every two to three days she contacted the Human Resources Department asking that she be transferred to a permanent position working in a finance area. On more than one occasion her temporary position in Detention Review Management was extended for a period of two weeks. Mrs Dango became distressed by this.
Mrs Dango gave evidence that she heard nothing in relation to her request that she be referred to the Australian Public Service Commission. I am satisfied that Mrs Dango's recollection in this regard is inaccurate. On the day of her meeting with Mr De Vere, Mrs Dango sent an email to him referring to their conversation that morning and again requesting that her file be referred to the Commission.[5] On the same day Mr De Vere responded acknowledging her request and advising that he would discuss her interest with Human Resources Victoria.
[5] Exhibit R1 pp.153-154.
On 3 August 2011 Mr De Vere again emailed Mrs Dango, informing her that he had referred her situation to Human Resources and had spoken to Ms Roberts who had raised her situation with the Public Service Commission. Mr De Vere asked Mrs Dango to contact Ms Roberts to be updated on the issue.[6]
[6] Exhibit R1 p.152.
On 17 August 2011 Ms Roberts advised Mrs Dango by email[7] that:
As I explained on Friday, although your position in SM&A has been identified as no longer required you are not considered excess to the Department. As part of normal process there are other APS4 vacancies for which you will be considered. As such you are not eligible to be placed on the APSC redeployment register. At the meeting I felt that you did not agree with this so I encourage you to contact the APSC for clarification.[8]
Mrs Dango agrees that this was discussed at the meeting referred to. She did not contact the Commission as suggested by Ms Roberts.
[7] Exhibit R1 pp.178-179.
[8] Exhibit R1 p.179.
By email of 5 September 2011[9] Ms Roberts again advised Mrs Dango that she was not considered excess to the needs of the Department as there were vacancies within the Department at her level. Ms Roberts also provided additional information requested by Mrs Dango, including information that an Agency Head has the power to determine the duties of an employee in the agency and the places at which those duties are to be performed.
[9] Exhibit R1 p.175-176.
Ms Roberts again advised Mrs Dango that she was not considered excess to the Department by email of 6 September 2011.[10] Ms Roberts advised also that for this reason Mrs Dango could not access the redeployment and redundancy provisions of the Enterprise Agreement.
[10] Exhibit R1 p.174.
Mrs Dango gave evidence that she wanted a referral to the Commission and was upset because she did not obtain what she requested. I accept this evidence.
On 26 October 2011 Mrs Dango attended her General Practitioner, Dr Bangoy. His clinical notes of that attendance[11] include the following:
Stress
Having work issues.
3/12 transferred to another department after coming back from holidays in America and Canada.
Has been having a lot of stress.
The notes also record that Mrs Dango was provided counselling.
[11] Exhibit R1 p.69.
On 16 November 2011 Mrs Dango was offered a new position in the Citizenship Services Section of the Department. The position was administrative, not financial. Mrs Dango accepted this position.
Mrs Dango was to commence working in the new position on 21 November 2011. However on 16 November 2011 she felt ill and left work early. She consulted a general practitioner in the medical practice she usually attended.
Mrs Dango did not return to work until March 2012.
LEGISLATION
Under s14(1) of the Safety, Rehabilitation and Compensation Act (Cth) Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.
“Injury” is defined in section 5A in part as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee;
…
but does not include a disease … 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.
“Disease” is defined in section 5B:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
(3)In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Subsection 7(4) makes special provision for determining the date on which an “injury”, being a “disease”, is suffered:
(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.
ISSUES FOR DETERMINATION
Comcare concedes that Mrs Dango has suffered a “disease” within the meaning of the Act as her claimed condition is an “ailment” that was contributed to, to a significant degree, by her employment with the Commonwealth. On the basis of the report of Dr Arulanantham[12], Mrs Dango's treating psychiatrist, to which I shall refer in more detail later, I am satisfied that this is a proper concession.
[12] Exhibit R1 p.131.
In view of these concessions it remains necessary to decide whether Mrs Dango has suffered an “injury” as defined by section 5A of the Act. Comcare argued that the disease suffered by Mrs Dango is not included in the definition of “injury” as it was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Mrs Dango's] employment.”
The following issues arise for determination:
(1)What is the nature of the disease suffered by Mrs Dango?
(2)Was the disease suffered as a result of “reasonable administrative action”?
(3)If so, was the administrative action “taken in a reasonable manner”?
(4)If so, was the administrative action taken “in respect of [Mrs Dango's] employment?
(5)If so, did the administrative action contribute to Mrs Dango's condition to a “significant degree”?
CONSIDERATION OF THE ISSUES
Issue 1: What is the nature of the disease suffered by Mrs Dango?
In his report dated 13 December 2011,[13] Dr Arulanantham stated that he was Mrs Dango's treating doctor and that he had seen her on two occasions. In the opinion of Dr Arulanantham, Mrs Dango presented with symptoms of depression which were directly related to work stress.
[13] Exhibit R1 p.131.
Dr Bangoy supports the diagnosis of depression[14], although he also diagnosed Mrs Dango as suffering from Post Traumatic Stress Disorder. Ms Singh, a Mental Health Clinician/Nurse to whom Mrs Dango was referred by Dr Bangoy, reported that Mrs Dango presented suffering from depression and anxiety.[15]
[14] Undated report, exhibit R1 p.59.
[15] Report dated 30 November 2011, exhibit R1 p.60.
On the basis of the above evidence I am satisfied that the proper description of the disease suffered by Mrs Dango is depression. All of Mrs Dango's treating health professionals agree on this diagnosis. Comcare does not dispute this diagnosis.
Issue 2: Was the disease suffered as a result of “reasonable administrative action”?
The incidents relied upon by Comcare
Comcare has identified the following incidents as the administrative actions which it claims come within the exclusionary provision of the definition of “injury” in section 5A:
(1)the refusal of Mrs Dango's request for an upgrade of her position;
(2)the transfer of Mrs Dango out of her APS4 position in the Settlement and Multicultural Affairs Branch;
(3)the failure of the Department to refer Mrs Dango to the Australian Public Service Commission for inclusion of her details in the redeployment register.
As it is not in dispute that Mrs Dango's employment has contributed to her condition to a significant degree I need only consider the effect of these incidents.
The administrative action relied upon must have occurred before Mrs Dango suffered the disease
In considering whether particular administrative action contributed to a disease it is necessary to determine when Mrs Dango first suffered the disease. It cannot be said that the disease resulted from administrative action which occurred after that time.
In accordance with subsection 7(4), if I find that Mrs Dango suffered an injury, the date of the injury would be 26 October 2011, being the date on which she first sought medical treatment for the “disease”. This is not in dispute. I have found that each of the incidents relied upon by Comcare occurred before 26 October 2011.
Causation
When she gave evidence Mrs Dango identified each of these three incidents as being upsetting to her. She also referred to them in her letter to Comcare dated 9 December 2011.[16]
[16] Exhibit R1, pp.85-89.
Report of Dr Bangoy, General Practitioner
Dr Bangoy reported that Mrs Dango's symptoms of depression started “when she was transferred to another department.”[17] He also referred to the effect of the transfer in his clinical notes of 26 October 2011 to which I have already referred.
[17] Exhibit R1 p.59.
Report of Dr Arulanantham, Consultant Psychiatrist
Mrs Dango was treated by Dr Arulanantham on referral by her general practitioner, Dr Bangoy.
In his report dated 13 December 2011,[18] Dr Arulanantham referred to the effect of the refusal of higher duty payment and her transfer to other positions and that she had become depressed as a result of these problems. As each of the incidents relied on occurred before that date it follows that Mrs Dango's disease was suffered “as a result of” the various administrative actions.
[18] Exhibit R3.
Report of Dr Murphy, Consultant Psychiatrist
Mrs Dango was also treated by Dr Murphy. His report dated 13 November 2012 [19] refers to the effect of the refusal of Mrs Dango's request for payment for higher duties, her transfer to another position and her request for referral to the Australian Public Service Commission. He stated that:
She had identified strongly with the position of herself being a finance officer. She was greatly shocked and upset by the changes.
…
On 14/3/2012, I made the diagnosis of Major Depressive Disorder. Presuming what Mrs. Dango had told me was true about the changes and circumstances at her work place, I formed the view that her work place has had a significant and causative role in the aetiology of her psychiatric condition.
[19] Exhibit R5
Conclusion
On the basis of the evidence of Mrs Dango and the medical practitioners to which I have referred, I am satisfied that Mrs Dango's depression was suffered, at least in part, as a result of each of the three instances of administrative action relied upon by Comcare.
I am satisfied also that each of the instances of administrative action was reasonable. My reasons for this conclusion follow.
Mrs Dango made a request for recognition of her efforts in the position held by her. Her employer responded appropriately by assessing her position in the manner normally undertaken in the Department. Mrs Dango was informed of the outcome of this assessment and provided with the further information she sought in relation to the assessment.
Further I find that the action taken in relation to Mrs Dango's request was reasonable action in connection with her failure to obtain a reclassification and a benefit and is therefore classed as “reasonable administrative action” in accordance with subsection 5A(2).
I am satisfied that the action to transfer Mrs Dango out of the Settlement and Multicultural Affairs Branch was reasonable in view of the stated need for a restructure by reason of budgetary requirements. Mrs Dango is of the opinion that this was not the actual reason for her transfer. However her evidence was based on no more than her suspicion and I am satisfied that the action taken was taken for the reason stated by her employer.
On the basis of the findings I have made, I am satisfied that at all times Mrs Dango was not excess to the requirements of the Department and that she was not eligible to be referred to the Australian Public Service Commission. Mrs Dango was tendered this advice on several occasions.
Issue 3: Was the administrative action “taken in a reasonable manner”?
On the evidence before me I am satisfied that the manner in which the refusal to upgrade Mrs Dango's position was carried out, was reasonable. For the reasons I have set out in considering the preceding issue, I am satisfied that an appropriate manner of dealing with Mrs Dango's request was undertaken and that she was dealt with fairly. I accept Mrs Dango's evidence that she may have misunderstood the assessment process and I am satisfied that it is likely that there was some misunderstanding on her part as to exactly what was being assessed. However I am satisfied that there was nothing in the manner in which her employer carried out this administrative action which contributed to her misunderstanding.
In May or June 2011 Mrs Dango learned that it was intended to restructure the Branch in which she was employed. This intention was announced to staff at a meeting attended by Mrs Dango but which she chose to leave early before the announcement was made. However she learned of the announcement on the day it was made. A few days later Mrs Dango and others were advised at a team meeting that it was not known which positions would be affected. Mrs Dango was again advised of this by Ms Hughes prior to Mrs Dango taking recreational leave. Immediately upon returning to work Mrs Dango was advised that she was to be transferred to another position. I am satisfied that this manner of taking the action to transfer Mrs Dango was reasonable in the circumstances which existed at the time.
Mrs Dango referred me to the provisions of The Department of Immigration and Citizenship Enterprise Agreement 2010-2011,[20] and in particular the provisions relating to consultation with employees in Part 9.
[20] Exhibit A1.
Clause 9.2(1) provides:
These procedures apply if:
(a) the department has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise, and
(b) the change is likely to have a significant effect on employees of the enterprise.
It is further provided that, for the purposes of discussion with relevant employees, the Department must provide information in writing about the change. I am satisfied on the evidence of Mrs Dango that the Department did not give her information about the change in her position in writing. However these provisions apply only to “major change.” On the evidence of Mrs Dango I am satisfied that the change in her employment involved her being moved from one position in the Department to another, without affecting the level at which she was employed or her remuneration. I am satisfied that a change of this nature is not “major change” within the meaning of the Agreement.
In relation to the refusal to put Mrs Dango's name forward to the Commission for inclusion on the excess to requirements list, I am satisfied that Mrs Dango's managers were patient and considerate in dealing with her repeated requests to be dealt with in a manner which was not permissible in the circumstances. I am satisfied that the manner in which this administrative action was carried out was reasonable.
Issue 4: Was the administrative action taken “in respect of [Mrs Dango's] employment”?
In Commonwealth Bank of Australia v Reeve [21]the Full Court of the Federal Court said:
… in contrast to a disease that was contributed to by, or an injury or aggravation that arose out of, or in the course of, the employee’s employment, the exclusion in s 5A(1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.[22] (original emphasis)
[21] [2012] FCAFC 21.
[22] [2012] FCAFC 21 [57].
Each of the incidents relied upon by Comcare related directly to Mrs Dango's performance in her APS4 role or her transfer from one position to another and were directed specifically to her. The actions were not ordinary features of her work, workplace or environment. I am satisfied that each of the actions taken by the Department was in respect of Mrs Dango's employment.
Issue 5: Did any or all of the administrative actions contribute to Mrs Dango's condition to a “significant degree”?
If a particular administrative action is relied upon to exclude a disease from being an injury which would otherwise be compensable under the Act, it is necessary that I be satisfied that the particular administrative action contributed to the disease to a significant degree.[23]
[23] Wang and Comcare [2012] AATA 242.
Based on her evidence I am satisfied that each of the incidents were particularly distressing to Mrs Dango. Having considered the reports of Dr Bangoy, Dr Arulanantham and Dr Murphy, to which I have referred, I am satisfied that each of the incidents did contribute to the depression suffered by Mrs Dango to a significant degree.
The conclusion I have reached is supported by the report of Dr Kornan, Consultant Psychiatrist.[24] Dr Kornan assessed Mrs Dango in June 2012 at the request of the Department. In the history taken by Dr Kornan, Mrs Dango complained of her treatment when the job assessment was done and when she was transferred from her finance role.[25]
[24] Exhibit R6.
[25] Exhibit R6 pp.1-2.
CONCLUSION
For the reasons stated I am satisfied that the disease suffered by Mrs Dango was suffered as a result of reasonable administrative actions, each of which was taken in a reasonable manner in respect of Mrs Dango's employment by the Department. It follows that Mrs Dango has not suffered an “injury” within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and is not entitled to be paid compensation under that Act.
The decision of Comcare, made 20 June 2012, denying liability to compensate Mrs Dango in respect of the condition of depression which was contributed to by her employment by the Department of Immigration and Citizenship, will be affirmed.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance .
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Associate
Dated 23 August 2013
Date(s) of hearing 20 and 27 June 2013 Applicant In person Counsel for the Respondent Ms C Dowsett Solicitors for the Respondent Australian Government Solicitor