Martin and Comcare (Compensation)
[2018] AATA 2870
•3 August 2018
Martin and Comcare (Compensation) [2018] AATA 2870 (3 August 2018)
Division:GENERAL DIVISION
File Number(s): 2013/0404
Re:Peta Martin
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:3 August 2018
Place:Sydney
1. The reviewable decision made by Comcare on 6 December 2012 denying liability to compensate Ms Martin for a depressive disorder is set aside.
2. In substitution it is decided that, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay compensation to Ms Martin in respect of an injury, being an Adjustment Disorder, suffered by her as an employee of the Australian Broadcasting Commission.
............................[sgd]............................................
J W Constance
Deputy President
Catchwords
COMPENSATION – whether Applicant suffered from an ailment or aggravation of such an ailment – whether the ailment or aggravation was contributed to by the Applicant’s employment – was the ailment or aggravation suffered as a result of administrative action taken in respect of the Applicant’s employment – whether administrative action was reasonable – whether administrative action was taken in a reasonable manner – reviewable decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21
Director-General of Education v Suttling (1987) 162 CLR 427Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
REASONS FOR DECISION
A: INTRODUCTION
Ms Martin commenced employment at the Australian Broadcasting Corporation as a Producer in its Renmark South Australia studios in 2010. The Corporation will be referred to as the “ABC” in these reasons.
In June 2012, Ms Martin lodged a claim for compensation[1] in respect of an injury described as “anxiety/depression” which she claimed was suffered by her as a result of “being subjected to repeated inappropriate behaviour”[2] in her workplace. Her claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
[1] Exhibit RR1 at 7.
[2] Exhibit RR1 at 10.
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Ms Martin requested this be reconsidered. On 6 December 2012, Comcare decided to affirm its earlier determination.[3] In January 2013, Ms Martin applied to the Tribunal to review Comcare’s decision.[4]
[3] Exhibit RR1 at 192.
[4] Exhibit RR1 at 13.
The Tribunal initially heard and determined Ms Martin's claim in 2014. Thereafter a series of appeals culminated in her application coming before the High Court of Australia.[5] The High Court ordered that the matter be remitted to the Tribunal to be heard and determined according to law. Comcare accepted that when the matter again came before the Tribunal Ms Martin would not be constrained by prior findings of fact made by the Tribunal.
[5] Comcare and Martin (2016) 258 CLR 467; [2016] HCA 43.
For the reasons which follow the decision under review will be set aside. In substitution it will be decided that, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay compensation to Ms Martin in respect of an injury, being an Adjustment Disorder, suffered by her as an employee of the Australian Broadcasting Commission.
The decision I have reached is based on a finding that Ms Martin suffered the Adjustment Disorder prior to a conversation that took place between herself and her supervisor on 16 March 2012. My reasons for reaching this decision are set out in Part 1 of these reasons.
Comcare has argued that Ms Martin suffered the Adjustment Disorder on or shortly after 16 March 2012. In view of the significant arguments addressed by Counsel for both parties, I have considered several further issues which would have arisen had I accepted Comcare’s argument in this regard. These considerations are set out in Part 2.
B: BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are made on the basis of the evidence of Ms Martin.
Ms Martin is 41 years old.
Between January 2010 and August 2011, in her role as an ABC Producer, Ms Martin was supervised by Mr Mellett, the Manager of the Renmark station. During that period Mr Mellett’s behaviour towards Ms Martin was inappropriate. He repeatedly engaged in behaviour such as criticising Ms Martin in front of colleagues, failing to intervene to prevent her being shouted at and unfairly criticised by colleagues, acting aggressively towards her, offering repeated negative feedback without offering advice as to means of improvement, and engaging in “passive-aggressive” behaviour. Ms Martin gave examples of the passive-aggressive behaviour. These included Mr Mellett refusing to acknowledge her on occasions, staring at her without speaking, and swearing at her in front of colleagues. Details of Mr Mellett’s behaviour towards Ms Martin are set out in a statement prepared by the Applicant in August 2012.[6]
[6] Exhibit RR1 at 40-53.
During this period Ms Martin suffered anxiety, nausea, sleep interference, tearfulness and diarrhoea.
Comcare denies that Mr Mellett acted inappropriately towards Ms Martin at any time. However, I accept the evidence of Ms Martin in this regard. It is supported by the statements of Ms Martin's colleague, Ms Rooney-Harding, made 26 August 2012[7] and 5 June 2014,[8] and the evidence Ms Rooney-Harding gave to the Tribunal in 2014.[9]
[7] Exhibit RR1 at 191.
[8] Exhibit AA9.
[9] Exhibit RR2 11/06/2014 at 73-90.
I have read the statement of Mr Mellett dated 10 July 2013[10] and the transcript of the evidence he gave before the Tribunal in 2014.[11] He denies having acted inappropriately. However, I did not have the opportunity to assess the credibility of Mr Mellett in person.
[10] Exhibit RR4.
[11] Exhibit RR2 11/06/2014 at 92-145.
In August 2011, Ms Martin was appointed to act in the position of a cross-media reporter. Although she continued to work in the Renmark office she was no longer supervised by Mr Mellett. Ms Raabus became her supervisor.
Following Ms Martin’s appointment to act in the position, the ABC conducted a competitive selection process to fill the position on a permanent basis. Ms Martin applied for the permanent position.
The selection process involved some candidates, including Ms Martin, taking part in telephone interviews by a selection panel, of which Mr Mellett was a member.
On 16 March 2012, Ms Raabus informed Ms Martin that she had been unsuccessful in her application for the permanent position and that another candidate would be appointed. During this conversation Ms Martin became distressed. During the next two days she suffered what she describes as a “breakdown”.[12] She has been absent from work since 19 March 2012.[13] I will set out in detail the circumstances of this conversation later in these reasons.
[12] Exhibit RR1 at 54.
[13] Exhibit RR1 at 17.
Ms Martin claims that Comcare is liable to pay her compensation in respect of an Adjustment Disorder suffered by her on an unspecified date no later than 16 March 2012. In the Applicant’s Second Further Amended Statement of Facts, Issues & Contentions dated 14 September 2017 it is contended on her behalf that:
The condition was contributed to, to a significant degree, by the following factors arising out of, or in the course of, her employment with the ABC.
(a) bullying, harassment and inappropriate behaviour by Mr Bruce Mellett between January 2010 and at least August 2011;
(b) being informed that she would be required to return to supervision by Mr Mellett, having failed to secure promotion to the permanent position of cross-media reporter.[14]
C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
[14] Applicant’s Second Further Amended Statement of Facts, Issues & Contentions dated 14 September 2017 at [33].
Subsection 14(1) of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
(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.
Subsection 5A(2) provides:
(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.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant” degree means a degree that is substantially more than material.
“Ailment” is also defined in subsection 4(1):
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
D: THE ISSUES
The following issues require determination:
(1)Did Ms Martin suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If so, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the ABC?
(3)If so, was the ailment or the aggravation suffered “as a result…of administrative action…taken…in respect of [Ms Martin’s] employment”?
(4)If so, was the administrative action “reasonable”?
(5)If so, was the action “taken in a reasonable manner”?
E: ISSUE 1: DID MS MARTIN SUFFER AN “AILMENT” OR “AN AGGRAVATION OF SUCH AN AILMENT” WITHIN THE MEANING OF THE ACT?
Comcare concedes that Ms Martin suffers from an ailment for the purposes of the Act.[15]
[15] Respondents Revised Statement of Facts, Issues and Contentions dated 8 May 2017 at [4.2].
The ailment has been variously described as “Depression” and an “Adjustment Disorder”. Nothing turns on the description of the ailment in this application and I will refer to the condition as an Adjustment Disorder. This is consistent with the opinion of Dr Clarke, Psychiatrist, who assessed Ms Martin in March 2013. This assessment was carried out at the request of her Solicitors for the purposes of these proceedings. In his report of 28 March 2013[16] Dr Clarke diagnosed Ms Martin as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
F: ISSUE 2: WAS MS MARTIN’S ADJUSTMENT DISORDER “CONTRIBUTED TO, TO A SIGNIFICANT DEGREE” BY MS MARTIN’S EMPLOYMENT BY THE ABC?
[16] Exhibit AA10.
Comcare accepts that Ms Martin’s ailment was “significantly contributed to by her employment with the ABC”. [17] On the basis of the evidence before me I am satisfied that this is an appropriate concession.
PART 1
ISSUE 3: WAS MS MARTIN’S ADJUSTMENT DISORDER “SUFFERED AS A RESULT OF” ADMINISTRATIVE ACTION?
[17] Respondents Revised Statement of Facts, Issues and Contentions dated 8 May 2017 at [4.4].
Comcare’s argument
Comcare argues that the relevant “administrative action” was the selection process for the permanent Cross-Media Reporter position for which Ms Martin unsuccessfully applied and which culminated in her being told that she was unsuccessful and that she would be returning to her substantive position of Producer.
Comcare contends that Ms Martin’s ailment:
was suffered as a result of her failure to obtain the permanent position of Cross-Media Reporter. Specifically, [Comcare] says that the Applicant’s ailment would not have occurred had she not failed to obtain the permanent position of Cross-Media Reporter.
[Comcare] contends the ailment was therefore suffered as a result of ‘administrative action’, within the meaning of both s 5A(1) and 5A(2)(f) (‘anything reasonable done in connection with the employee’s failure to obtain a promotion, transfer or benefit’) (administrative action).[18]
[18] Respondents Revised Statement of Facts, Issues and Contentions dated 8 May 2017 at [4.5], [4.5A].
When did Ms Martin suffer the Adjustment Disorder?
The first step is to decide when Ms Martin suffered the Adjustment Disorder. A particular action cannot be said to have contributed to the disorder if the suffering of the disorder preceded the action relied on.
Report of Dr Begg, Consultant Psychiatrist, 28 August 2012 [19]
[19] Exhibit RR1 at 119.
Ms Martin was assessed by Dr Begg on 24 August 2012 at the request of Comcare.
Dr Begg diagnosed Ms Martin as suffering a Major Depressive Disorder “on the basis of persistence of depressed mood, guilt, shame, poor concentration, poor sleep, tearfulness, emotional instability, anger symptoms and social withdrawal.”[20]
[20] Exhibit RR1 at 121.
In his report Dr Begg set out two questions he had been asked and responded as follows:
Provide the known causation factors for this diagnosis including the progression of the condition (include clinical signs and symptoms that support your diagnosis)
Repeated episodes of workplace bullying and the realisation that she was powerless to get out of the situation, such arising when she was unsuccessful in her job application. Whilst this job would still see her working in the same office, there will be less opportunity for bullying by the alleged perpetrator.
In your opinion, when did Ms Martin suffer from clinically identifiable symptoms of a psychological condition? Please provide details in respect of clinical signs and symptoms which support your opinion.
There was a gradual onset of symptoms throughout 2011, as the year progressed, they become [sic] worse. It is reasonable to say that identifiable symptoms were present from May 2011 onwards and was subsequently started with the Employee Assistance Program, on the other hand, she did continue to work, which suggests that the symptoms were not so severe and is only with the failure of her job application that symptoms have become more severe. I appreciate that it is tempting to look at the failure of the job application as the cause for her disorder, but the meaning must be understood that this job application was her way of starting to get away from the alleged perpetrator.[21]
Report of Dr Clarke, Psychiatrist, 28 March 2013[22]
[21] Exhibit RR1 at 122.
[22] Exhibit AA10.
Ms Martin was assessed by Dr Clarke on 18 March 2013 at the request of her Solicitors.
Dr Clarke’s diagnosis was that Ms Martin was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood.[23] He reported that, in his opinion:
Ms Martin’s history clearly indicates that she was suffering from an Adjustment Disorder prior to the meeting in question in March 2012.
The conversation regarding Ms Martin’s failed application for the position only had meaning because of the previous problems she had in her employment. Her not being awarded the position or being provided feedback about the reason for her lack of success has not been a focus of her distress and I do not consider that these factors could be seen as a cause of her psychiatric injury which was well established prior to that event.[24]
[23] Exhibit AA10 at 7.
[24] Exhibit AA10 at 8.
Dr Clarke later considered the statement made by Ms Martin in these proceedings and the evidence she gave in 2014. He reported that the history he had been given by Ms Martin was generally consistent with her evidence.[25]
The concurrent evidence of Dr Begg and Dr Clarke before the Tribunal on 12 June 2014 [26]
[25] Exhibit AA13.
[26] Exhibit RR2 12/06/2014 at 22-46.
When he gave evidence concurrently with Dr Begg, Dr Clarke maintained his opinion that Ms Martin suffered significant psychiatric symptoms prior to March 2012. This led him to diagnose Ms Martin as suffering a psychiatric condition prior to the meeting of 16 March 2012.[27]
[27] Exhibit RR2 12/06/2014 at 25.
Dr Begg changed the opinion he expressed in his report of 24 August 2012. When he gave evidence in 2014 he was of the opinion that prior to 16 March 2012 Ms Martin had “intermittent episodes of distress where she had sought out assistance, including the Employee Assistance Program.”[28] In reaching this conclusion he had considered case notes from the Program which showed an improvement in Ms Martin’s condition by June 2011. He also took into account a summary of the clinical notes of Dr Kulatunga, Ms Martin’s General Practitioner, in relation to a consultation on 25 June 2011.[29] The summary of those notes by the Comcare review officer read:
… noted that you seemed to be under stress, but he did not diagnose you with a psychological condition, certify you unfit for work, prescribe any medication, or refer you to a psychologist.[30]
[28] Exhibit RR2 12/06/2014 at 27.
[29] Exhibit RR2 12/06/2014 at 27.
[30] Exhibit RR1 at 198.
Based on this evidence, Dr Begg did not think that Ms Martin “had reached the criteria of excessive distress and particularly not of a persistent nature, nor of an impact on her work performance.”[31] He felt that these factors “were not consistent with a disorder being diagnosed at that point in time, but rather subsequently when she presented to the general practitioner distressed in March [2012].”[32]
[31] Exhibit RR2 12/06/2014 at 27.
[32] Exhibit RR2 12/06/2014 at 27.
Discussion
Having considered the evidence of both Dr Clarke and Dr Begg, I prefer the opinion of Dr Clarke, with whom Dr Begg at first agreed. I have taken into account the fact that Dr Begg formed his initial opinion after he assessed Ms Martin in August 2012, five months after the conversation between Ms Martin and Ms Raabus on 16 March 2012. At the time of that assessment he diagnosed a pre-existing psychiatric condition and was firm in his diagnosis (see paragraph 32 of these reasons).
I do not find Dr Begg’s reasoning based on the review officer’s summary of Dr Kulatunga’s notes convincing. Dr Begg did not have the benefit of reading the General Practitioner’s notes prior to changing his opinion and neither he nor I have had the opportunity to have evidence directly from Dr Kulatunga. In my view there is a substantial risk that the review officer has not accurately reflected the Doctor’s opinion as to the condition suffered by Ms Martin at the time of the consultation.
Further, when, in 2014, the Tribunal Senior Member informed Dr Begg of the evidence as to the symptoms suffered by Ms Martin prior to March 2012, he agreed that the symptoms described were consistent with a diagnosis of Adjustment Disorder.[33]
[33] Exhibit RR2 12/06/2014 at 28-30.
PART 1 CONCLUSION
On the basis of the opinions expressed by Dr Begg and Dr Clarke in their respective reports of 28 August 2012 and 28 March 2013, I am satisfied that Ms Martin suffered an Adjustment Disorder sometime prior to August 2011, at which time she ceased to be supervised by Mr Mellett and came under the supervision of Ms Raabus.
In reaching this conclusion I have taken into account the following history taken by Dr Begg from Ms Martin in August 2012 and upon which he initially based the opinion he expressed in his report of 28 August 2012:
She now has a deep sense of shame, she is isolating herself and does not want to talk to people about what has happened. She is frightened how she will be judged.
The symptoms have been going on for a prolonged period of time, probably from at least September 2010 onwards have they been persistent. She has sought assistance from the Employee Assistance Program in May 2011 and this was when she began to document what was happening. It therefore appeared that around mid 2011, the symptoms were of sufficient severity that they were affecting her behaviour in so much that she needed external assistance and was sufficiently concerned to document the interactions.[34]
This history is consistent with the evidence given to the Tribunal by Ms Martin in 2014 and again in 2017.
[34] Exhibit RR1 at 120.
As Ms Martin suffered the Adjustment Disorder no later than August 2011, it follows that the action relating to her failure to obtain the position of Cross-media Reporter made no contribution to her suffering that ailment. As I have noted earlier in these reasons, Comcare concedes that the ailment “was significantly contributed to by her employment with the ABC.” [35]
[35] Respondents Revised Statement of Facts, Issues and Contentions dated 8 May 2017 at [4.4].
For the reasons stated, the reviewable decision made by Comcare on 6 December 2012 denying liability to compensate Ms Martin for a depressive disorder will be set aside.
In substitution it will be decided that, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay compensation to Ms Martin in respect of an injury, being an Adjustment Disorder, suffered by her as an employee of the Australian Broadcasting Commission.
Note
On this basis, the remaining issues set out in paragraph 24 of these reasons do not arise for consideration. However, in case I am wrong in my conclusion as to the date of the injury and in view of the significant arguments addressed by Counsel, I will consider the remaining issues on the assumption that the Adjustment Disorder was suffered by Ms Martin on, or shortly after, 16 March 2012.
PART 2
ON THE ASSUMPTION THAT MS MARTIN SUFFERED AN ADJUSTMENT DISORDER ON OR AFTER 16 MARCH 2012, WAS THE AILMENT “SUFFERED AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION …… IN RESPECT OF [MS MARTIN'S] EMPLOYMENT”?
What is the relevant “reasonable administrative action”?
Comcare’s argument
Comcare argued that the “reasonable administrative action” in Ms Martin’s case was “anything reasonable done in connection with [her] … failure to obtain a promotion, … transfer or benefit … in connection with … her employment.”[36] It was argued that the action of Ms Raabus of telling Ms Martin that she had not been successful in her application to be appointed to the Cross-Media Reporter role was part of this administrative action.
[36] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(2)(f).
Ms Martin's argument
It was argued on behalf of Ms Martin that the conversation between her and Ms Raabus had two aspects:
(i)the advice to Ms Martin that she had been unsuccessful in her application for the cross-media reporter position;
(ii)Ms Martin being informed that “she would be required to return to supervision by Mr Mellett, having failed to secure promotion to the permanent position of cross-media reporter.”[37]
[37] Applicant’s Second Further Amended Statement of facts, Issues and Contentions dated 14 September 2017 at [33].
Counsel for Ms Martin argued that the second aspect should be “uncoupled” from the first. If this is done, the latter action should be seen as “operational” rather than “administrative”.
Discussion
In Commonwealth Bank of Australia v Reeve and Another,[38] the Full Court of the Federal Court said:
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… 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.
…
Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1).[39]
[38] [2012] FCAFC 21.
[39] Ibid at [60], [62].
Applying what was said by the Full Court I am satisfied that each of the following actions was administrative action in respect of Ms Martin’s employment:
(1)the selection process by which Ms Martin was ranked as second of the suitable applicants for the position of cross-media reporter;
(2)informing Ms Martin that she had been unsuccessful in her application to be appointed to the permanent position;
(3)informing Ms Martin that as she had been unsuccessful in her application she would be returning to a position under the supervision of Mr Mellett.
In addition to reaching this conclusion by applying the provisions of subsection 5A(1), I am satisfied that each of the above actions is taken to be “reasonable administrative action” in accordance with subsection 5A(2)(f). This subsection applies to action “in connection with” an employee’s failure to obtain a promotion, reclassification, transfer or benefit.
“Connection” is defined in the Oxford English Dictionary to include:
The condition of being related to something else by a bond of interdependence, causality, logical sequence, coherence, or the like; relation between things one of which is bound up with, or involved in, another.
Taking into account the ordinary meaning of the words “in connection with”, I am satisfied that each of the actions referred to above was bound up with, and involved in, Ms Martin’s failure to obtain the promotion or transfer to the cross-media reporter position. The evidence is not clear whether it would have been a promotion or a transfer, however, nothing turns on this.
Counsel for both parties spent considerable time and effort addressing the issue of whether what was said by Ms Raabus, after she told Ms Martin that she was not to be appointed to the cross-media reporter position, should be determined to be operational action, separate from the action of advising her she was not successful in obtaining the position.
It is clear that there can be several separate administrative actions disclosed in a particular factual matrix that contribute to an employee suffering a particular condition.[40]
[40] Comcare v Drinkwater [2018] FCAFC 62 at [72].
I accept the argument of Counsel for Ms Martin that the action of telling her that she would be required to return to the supervision of Mr Mellett, should be regarded as a separate action to that of advising her that she had been unsuccessful in obtaining the appointment she sought. However I do not agree that the former is properly classified as “operational” rather than “administrative”.
In Comcare v Drinkwater, the Full Court of the Federal Court said:
The present case is not about Departmental directions as to how Mr Drinkwater was to do his job in his then position or about his duties in that job; and it did not, for this reason, involve operational action falling outside the exclusion.
In the present case, the relevant action was about transferring Mr Drinkwater to a different post or position from that which he then held in his employer’s employ… This was administrative action taken with respect to Mr Drinkwater under s 25 of the PS Act: see further Director-General of Education v Suttling (1987) 162 CLR 427 at 437-438 (Brennan J, with whom Mason ACJ and Deane J agreed). It was action that took Mr Drinkwater’s employment “as a factum”, to use the language of Rares and Trace JJ in CBA v Reeve at [60]. …This action was plainly taken “in respect of” Mr Drinkwater’s employment because it was action directed specifically to his employment and taken in respect of his employment. A determination by the employer that the employee will move from his or her existing post to a new post in the employer’s employ involves administrative action specifically directed to that employee and specifically about that employee.[41]
[41] Ibid at [69]-[70].
In this matter, the action was specifically directed to Ms Martin’s employment and taken in respect of that employment.
In respect of each administrative action to which I have referred, I am satisfied that the action itself was “reasonable”. It was reasonable to engage in a selection process to fill the vacant cross-media reporter position on a permanent basis. It was reasonable also for Ms Raabus, as Ms Martin’s supervisor, to inform her that she was unsuccessful in her application for that position and to have a discussion as to Ms Martin’s on-going employment.
Was the “reasonable administrative action” taken “in respect of” Ms Martin’s employment?
Applying the principles set out by the Federal Court in Commonwealth Bank of Australia v Reeve and Comcare v Drinkwater, I am satisfied that each of the relevant actions was taken in respect of Ms Martin’s employment by the ABC.
Did Ms Martin suffer the Adjustment Disorder “as a result of” one or more of the reasonable administrative actions?
In Comcare v Martin,[42] the High Court considered the causal connection which is required to give rise to the operation of the exclusionary provision of section 5A(1).
[42] [2016] HCA 43.
The High Court said, in part:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.[43]
The evidence of Ms Martin
[43] Ibid at 47.
Evidence before the Tribunal in 2014
When Ms Martin applied for the permanent position of cross-media reporter in late 2011 or early 2012, she did so with the intention of removing herself from the direct supervision of Mr Mellett and to “buy a little more time to get away from [the Renmark station].”[44] By that time she had made at least 10 other applications for positions away from Renmark. All these applications were made while working at the Renmark station.[45]
[44] Exhibit RR2 10/06/2014 at 47.
[45] Exhibit RR2 10/06/2014 at 47.
On Friday 16 March 2012, Ms Martin was at work when she received a telephone call from Ms Raabus. At the request of Ms Raabus, Ms Martin went into one of the news booths (an area which afforded some privacy) to continue the conversation.
In response to questions from her Counsel, Ms Martin described the conversation with Ms Raabus and the ensuing events as follows:
MS MARTIN: She said that I’d been unsuccessful in my application for the position.
MR GREY: When she told you that how did you feel?
MS MARTIN: I mean I was unsuccessful and that’s that really. Yes, I mean it wasn’t a job that I – I didn’t really want that. What I essentially wanted was to get away from the behaviour of Bruce Mellett. So the job itself was – was not of a real concern to me.
MR GREY: Then what’s the next thing that happened?
MS MARTIN: She told me that I had answered two of the questions posed to me badly, that they’d let me down and they were two questions that Bruce Mellett had posed. I identified those as being two questions that Bruce Mellett had posed to me.
She then broached the subject of me having to return to the line management of Bruce Mellett and I – I broke down, I began to cry uncontrollably.
MR GREY: What was the reason for that?
MS MARTIN: I said that I was scared to return to his line of management.
MR GREY: Did she ask why?
MS MARTIN: I can’t recall at this point.
MR GREY: In terms of crying what were you crying about?
MS MARTIN: I was crying about the fact that I would be – return to the direct line management of Bruce Mellett whose behaviour towards me caused a corrosion in my health.
I was consistently stressed, I felt absolutely worn down, I was exhausted. I didn’t know if I had the resilience to face that behaviour any more. I was scared about whether I could continue my career. I mean I was really scared.
MR GREY: What did you do?
MS MARTIN: That day following the call or what did I do when---
MR GREY: How did the call end?
MS MARTIN: Carol Raabus had said to me that she was still my line manager for now and we could have a talk about it when she was in the office the following week. I said that would be good. She said take the afternoon off, go home. I couldn’t stop crying and I left the office and I was worried. I packed up my things and I drove to Adelaide to be with my family.[46]
[46] Exhibit RR2 10/06/2014 at 48-49.
Evidence before the Tribunal in 2017
When she gave evidence before me, Ms Martin said that had she been offered the cross-media reporter job she may have taken it but she would have continued to apply for positions away from the Renmark office. There would have been no commitment on her part to remain in the Renmark position.
Having been reminded of evidence given by Ms Raabus in 2014, Ms Martin agreed that during the conversation she told Ms Raabus that she was happy to help with a hand-over to the successful applicant. When asked by her Counsel how she was feeling at that stage she said “That’s fine, I was happy to do that. It’s easy. It’s nice.”[47] It was immediately after the discussion concerning the hand-over that Ms Raabus broached the subject of Ms Martin returning to the line management of Mr Mellett.
[47] Transcript 22/11/2017 at 25.
The evidence of Ms Raabus
Ms Raabus provided a statement dated 8 July 2013[48] and gave evidence at both Tribunal hearings.
[48] Exhibit RR9.
In her statement, Ms Raabus described the conversation of 16 March 2012 as follows:
On 16 March 2012 I called the Applicant and advised that she was not the successful applicant for the position. I provided feedback on the interview process, explaining the Applicant had not performed as well as the success [sic] candidate in a few selection criteria. I outlined the criteria in which she had not done well in the interview and told her she was placed second, but that the successful candidate was much more experienced in the media and was a long-term local in the region with very strong local knowledge. I recall that the Applicant seemed very disappointed with not getting the role. She received the feedback quite well, although being disappointed, but when I raised the issue of her returning to her substantial role as a radio producer with Local Radio in the Renmark office, she became very upset and emotional. I recall that she said something to the effect that she had issues with Mr Mellett and did not want to return to work with Local Radio with Mr Mellett as her direct line manager. I recall that she did not want to tell me what her issues were with Mr Mellett in that phone call. I recommended to the Applicant that she consider calling the Employee Assistance Provider (EAP) and take the rest of the day off. I also recommended she speak with ABC People and Learning if she had problems with Mr Mellett or any other ABC employee that was making her so upset. The Applicant agreed to take the rest of the day off and said she would consider speaking with someone about her problems. I then informed Mr Mellett that the Applicant would be away for the rest of the day and I arranged cover for the website for the rest of the day.
This phone call on 16 March 2012 was the first time I become aware of any issue the Applicant had with Mr Mellett.[49]
[49] Ibid at [16]-[17].
When she gave evidence before me, Ms Raabus said that she told Ms Martin that having been unsuccessful and that role now having been filled by someone else that she would go back to her ongoing role.[50] Immediately after Ms Martin became distressed, Ms Raabus became aware that Ms Martin had problems with Mr Mellett and that she did not want to go back to his supervision.[51]
[50] Transcript 26/02/2018 at 3.
[51] Transcript 26/02/2018 at 6.
Ms Raabus also said that during the telephone conversation she told Ms Martin that she would talk to her again the following week. At the time she told Ms Martin that it was her intention to discuss in more detail the areas Ms Martin needed to work on to improve her chances of securing an ongoing role as an online reporter.[52]
[52] Transcript 26/02/2018 at 3.
The evidence of Dr Clarke and Dr Begg
In 2014, the following evidence was given by Dr Clarke and Dr Begg in response to questions from Counsel for Ms Martin:
MR GREY: …insofar as her desire to fill the position itself – in other words, the question of whether she had a particular yen to be the cross-media representative in Renmark, did either of you get from your interview with her that that was a matter of disappointment to her, in itself?
DR BEGG: It’s Dr Begg. I didn’t get that from her. The interview was focused on the difficulty that she had with her manager and her desires to extricate herself from that in some way. And so she specifically said, “I was applying for positions to alleviate my problem with the manager.” Even though it wasn’t going to be a complete resolution because she would still be in the office.
MR GREY: Yes.
DR BEGG: So I didn’t give any weight to the importance or yen for career advancement.
MR GREY: Right.
DR CLARKE: It’s Dr Clarke here. That’s exactly the same impression that I had. She specifically – it wasn’t the preferred position, she didn’t particularly want to have that position, it was just – it was also not just about the position or that particular point in her career. It was also about, well, if she applies for other positions, given what was happening in the dynamics of the selection process, would she then never be able to get out of Renmark. That was her concern, to get away from Mr Mellett. So her – she specifically said to me that this was not really what she wanted – the position was not what she really wanted. So, as I said before, it’s a much broader issue than the yen for that particular position.
MR GREY: Yes. All right. So if we were just dealing with what I’ve called the yen for the position, would either of you regard that as being a significant substantial factor, or is it so minor that we can put it to one side?
DR CLARKE: Dr Clarke here. I think the yen for the position is so minor that it’s irrelevant.
MR GREY: Right.
DR BEGG: Dr Begg here. I would have to agree with Dr Clarke.[53]
[53] Exhibit RR2 12/06/2014 at 33-34.
Discussion
The decision not to appoint Ms Martin to the cross-media reporter position and the process of informing her of this
Turning now to consider the administrative actions, the first being the decision not to appoint Ms Martin to the position she applied for and the second being the advising of Ms Martin of this. On the basis of the evidence set out above, that the causal connection required by subsection 5A(1) is not met.
I am satisfied that it was not the advice that she had not succeeded in obtaining the position which caused Ms Martin to become distressed on 16 March 2012. I have accepted Ms Martin’s evidence in this regard. Her evidence is supported by the evidence of Dr Clarke and Dr Begg.
For this reason I am not satisfied that, without the taking of these administrative actions, or either of them, Ms Martin would not have suffered the Adjustment Disorder that was contributed to, to a significant degree, by her employment by the ABC. The causal connection between the reasonable administrative actions and the ailment, as explained by the High Court, is not met and the exclusionary provision of subsection 5A(1) does not apply.
Had I decided that the causal connection was met I would have decided that the administrative action was not carried out in a reasonable manner. My reasons for so deciding are the same as those set out in paragraphs 82-100 which follow.
The conversation concerning Ms Martin being required to return to the direct supervision of Mr Mellett
On the basis of the evidence of Ms Martin and Ms Raabus I am satisfied that:
·Ms Martin was disappointed to learn that she was not to be appointed to the permanent position of cross-media reporter;
·she remained composed during discussions with Ms Raabus concerning:
othe reasons she was not successful;
oher performance while supervised by Ms Raabus;
othe need for her to continue practising her on-line story-telling skills;
oher chances of getting a job in other areas of the ABC;
othat Ms Martin's Raabus was happy to be a referee for her in her future job applications; and
oarrangements for Ms Martin to assist with a hand-over of her duties to the successful candidate;[54]
·Ms Raabus told Ms Martin that as she had been unsuccessful she would return to her ongoing role;
·the ongoing role referred to by Ms Raabus was directly supervised by Mr Mellett;
·immediately upon Ms Martin being told this information she became distressed and started to cry and told Ms Raabus that she had problems with Mr Mellett and did not want to go back to his supervision.
[54] Exhibit RR1 at 149.
On the basis of Ms Martin’s evidence and that of Dr Clarke and Dr Begg, I am satisfied that without Ms Raabus having informed Ms Martin on 16 March 2012 that she would return to her ongoing role as a Producer, Ms Martin would not have suffered the Adjustment Disorder. The causal connection between the administrative action and the suffering of the ailment is met.
WAS THE ADMINISTRATIVE ACTION TAKEN IN A “REASONABLE MANNER”?
The only administrative action which meets the causation test is Ms Raabus informing Ms Martin that, as she had been unsuccessful in her application for the permanent position, she would go back to her ongoing role. I now turn to consider whether that administrative action was taken in a “reasonable manner”. The manner in which the action is taken must be “reasonable”; the Act does not required that it be faultless.
In Comcare v Martinez (No 2),[55] the Federal Court cited with approval the judgement of the Supreme Court of South Australia in Keen v Workers Rehabilitation and Compensation Corporation,[56] which said, in part:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
[55] [2013] FCA 439 at [83].
[56] (1998) 71 SASR 42 at [47]-[48].
As I have already found, prior to Ms Martin becoming distressed she had been advised that she had been unsuccessful, she had received feedback on her application and her performance in the acting position and she had agreed to take part in a hand-over of her duties to the successful applicant. She became distressed immediately after she was told she would be required to return to the position supervised directly by Mr Mellett.
By February 2012, Ms Raabus had about four years’ experience as a staff manager employed by the ABC. At the time of the discussion, Ms Raabus was aware that good management practice required a complaint of inappropriate treatment of an employee of the ABC to be referred to ABC People and Learning. She was aware also that in those circumstances a serious question would arise as to whether the employee would be sent back to the position of which he or she was complaining.[57] The decision as to Ms Martin’s future role was a matter for Ms Raabus’ line of management which included Mr Wright.[58]
[57] Transcript 26/02/2018 at 7.
[58] The relevant evidence of Ms Raabus appears in the transcript of 26/02/18 at 6-7.
In March 2012, Mr Wright was a Regional Content Director employed by the ABC. He was responsible for the regional team in South Australia and had direct responsibility for the work done by Ms Martin. In the opinion of Mr Wright, in the circumstances in which Ms Martin was placed on 16 March 2012:
the process would be that we would have a conversation … about the situation and then work out some strategies as to what possible options there might be, even though that might be limited.
…
We would want to work with the person to find an outcome that would suit them, but we would also be conscious of the operational needs of the local station to – for the output could continue there. But, you know, as a manager I wouldn’t want to knowingly put someone in a situation that might be difficult for them.”[59]
[59] Transcript 23/11/2017at 82-83.
Based on the evidence of Ms Martin and Ms Raabus, all that Ms Raabus did when she became aware that Ms Martin was distressed at the prospect of again coming under the supervision of Mr Mellett, was to refer her to the Employees Assistance Program and suggest that she contact ABC People. I am not satisfied that this was a reasonable manner of dealing with the situation with which Ms Raabus was confronted. At the time Ms Raabus was Ms Martin's immediate supervisor and the person tasked with advising her that she had been unsuccessful in attaining appointment to the role in which she had been acting.
In contrast to the approach taken by Ms Raabus, a reasonable manner of dealing with the situation which arose on 16 March 2012 would have been as suggested by Mr Wright. Although the action proposed by Mr Wright would have involved subsequent discussions, Ms Raabus should have immediately assured Ms Martin that there were processes available to her which may avoid the situation which was causing her obvious distress. Ms Raabus did not do this.
In these circumstances I am not satisfied that the administrative action was taken in a “reasonable manner”.
In addition to the reasons set out in the preceding eight paragraphs, I am satisfied that there is another reason why the action of advising Ms Martin that she had to return to the supervision of Mr Mellett was not done in a reasonable manner.
Part of the process of the selection of the successful candidate for the permanent position of cross-media reporter was carried out by a selection panel comprised of Mr Wright, Ms Raabus and Mr Mellett.
Mr Mellett provided a statement dated 10 July 2013.[60] He gave evidence at the Tribunal hearing in 2014;[61] he did not give evidence before me.
[60] Exhibit RR4.
[61] Exhibit RR2 11/06/2014 at 92-145.
Mr Mellett annexed to his statement a copy of notes he made relating to occasions when he spoke to Ms Martin concerning workplace issues. These notes covered a period from February 2010 until June 2012.
In 2014, Counsel for Ms Martin questioned Mr Mellett at length on statements he made in the notes.[62]
[62] Exhibit RR2 11/06/2014 at 93-144.
Having read the notes and the evidence Mr Mellett gave to the Tribunal, I am satisfied that at the time of the selection panel’s interview of Ms Martin on 16 March 2012, Mr Mellett held the view that Ms Martin did not perform well in her role as a Producer, that she lied repeatedly and maliciously, and she had acted in a way that exposed her to the possibility of disciplinary action as an employee and to a claim against her for defamation.
In making this finding I have considered all of the evidence referred to and in particular the following:
·in notes kept by Mr Mellett as to his supervision of Ms Martin he attributed blame to Ms Martin and not to others involved;[63]
·he considered Ms Martin had poor time management skills;[64]
·in the notes produced by Mr Mellett he recorded only criticism of Ms Martin and not those things she did well;[65]
·some criticisms of Ms Martin’s performance were marked by up to 11 exclamation marks;[66]
·he was “dumfounded” by an instance of inaction by Ms Martin;[67]
·he formed the view that Ms Martin was the type of person who would tell lies maliciously and repeat them to suggest that a colleague had misappropriated ABC property
·he was of the view that Ms Martin was guilty of a breach of workplace behaviour of sufficient seriousness to report it to a senior management person within the organisation;[68]
·he formed the view that there was a potential issue of misconduct by Ms Martin;[69]
·he considered that Ms Martin may have defamed a work colleague.[70]
[63] Exhibit RR2 11/06/2014 at 100.
[64] Exhibit RR2 11/06/2014 at 105.
[65] Exhibit RR2 11/06/2014 at 107,113.
[66] Exhibit RR2 11/06/2014 at 129.
[67] Exhibit RR2 11/06/2014 at 130.
[68] Exhibit RR2 11/06/2014 at 134.
[69] Exhibit RR2 11/06/2014 at 136.
[70] Exhibit RR2 11/06/2014 at 137.
At the time of the selection process, the ABC Recruitment & Selection Guidelines were in force and applied to the selection process in which Ms Martin was involved. Under the heading Selection Panel they provided in part:
If a Selection Panel member (including the convenor) believes their personal relationship with an applicant could affect an applicant’s selection prospects, they should raise this with the convenor, or a People & Learning representative, and withdraw from the Selection Panel. All reasonable steps should be taken to ensure that the Selection Panel does not include persons who could reasonably be perceived to have a conflict of interest in the selection decision (refer to the ABC Conflict of Interest Policy). It is the responsibility of all panel members to raise any concerns they may have regarding a potential conflict of interest of other panel members.[71]
[71] Exhibit RR11 at 7.
Mr Mellett did not withdraw from the panel nor did he disclose to anyone the views he held of Ms Martin.[72]
[72] Exhibit RR2 11/06/2014 at 140-141.
Taking into account the views he held of Ms Martin, Mr Mellett should have raised these with the convenor (Mr Wright) or a People & Learning representative and should have withdrawn from the selection panel. The fact that he did not do this causes me to conclude that the selection process was not carried out in a reasonable manner. This defect in the constitution of the panel affects the whole selection process which culminated in Ms Martin being informed that she would be returning to her ongoing position under the supervision of Mr Mellett.
Both Mr Wright and Ms Raabus agreed that Mr Mellett should have disclosed his views of Ms Martin to them. His not doing so denied them the opportunity to consider whether it was appropriate for Mr Mellett to be a panel member.[73] This failure by Mr Mellett separately leads me to the conclusion that the selection process was not conducted in a reasonable manner.
[73] Exhibit RR2 12/06/2014 at 14, 72.
PART 2 CONCLUSION
Had I decided that Ms Martin's Martin suffered the Adjustment Disorder on or after 16 March 2012, I would have made a decision in the same terms as are set out in paragraphs 47 and 48 of these reasons.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
..............................[sgd]..........................................
Associate
Dated: 3 August 2018
Date(s) of hearing: 22 and 23 November 2017, 26 February 2018 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: Mr M Gollan Solicitors for the Respondent: Lehmann Snell Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Judicial Review
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Procedural Fairness
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Remedies
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Statutory Construction
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