MOORE and COMCARE

[2011] AATA 615

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 615

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1642

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELIZABETH MOORE

Applicant

And  COMCARE

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date2 September 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS

COMPENSATION — reasonable administrative action — misconduct policy — informal process — decision affirmed

Safety Rehabilitation and Compensation Act 1988, s 5A

REASONS FOR DECISION

2 September 2011 Senior Member Bernard J McCabe

1.      

Elizabeth Moore works at the CSIRO. She developed a psychiatric condition that she attributes to events that occurred in her workplace. She has applied for compensation under the provisions of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). Comcare, the respondent, determined it was not liable for

Ms Moore’s condition because the events which are said to have contributed to the onset of that condition qualified as “reasonable administrative action” within the meaning of s 5A of the Act.

2.      The applicant says the administrative action in question was not reasonable. She points in particular to what she says was a failure to observe the CSIRO misconduct policy. She says she was handled inappropriately in other respects as well.

3.      I am satisfied the CSIRO’s conduct amounted to reasonable administrative action in all the circumstances. That means the applicant’s claim for compensation must fail. I explain my reasons below.

The factual background

4.      Ms Moore commenced work at the CSIRO in March 2006. She came from a background in human resources and sales. She was working in the recruitment team in 2008-2009.

5.      

The CSIRO recruitment team is spread around several sites throughout Australia. Ms Moore is in Brisbane but the manager of recruitment services,

Ms Jenny Rhodes, was based elsewhere. Ms Dymphna Austin, who joined the team as a supervisor reporting to Ms Rhodes before the events that gave rise to the claim, also worked outside of Brisbane. I understand it was the practice of both managers to stay in contact with their various charges around the country by telephone and email, and in the course of occasional site visits. This sort of remote supervision is an increasingly common feature of large organisations which has been facilitated by advances in information technology. I will have more to say about that later.

6.      

The CSIRO operates out of several sites in the Brisbane area. The usual place of business for someone performing Ms Moore’s role was at St Lucia.

Ms Moore was experiencing difficulty with the commute to St Lucia so she was allowed to shift her base of operations to a building on the CSIRO campus at Pullenvale. Ms Rhodes explained the move was possible because of an arrangement with another manager at the Pullenvale site who oversaw a team in the human resources area. Ms Moore was not a part of that team, but she sat in an area adjacent to the team and became friendly with some of the team-members.

7.      Ms Rhodes said in her evidence that she had been contacted by several managerial colleagues with complaints about Ms Moore’s conduct in or around October 2008. One of the complainants was from the manager who led the team at Pullenvale that made room for Ms Moore. I will not rehearse all of the complaints here in detail. In summary, Ms Moore was accused of talking out of turn. She was said to have:

·     made uncomplimentary remarks about other staff members at meetings;

·     offered advice to another staff member to go behind her manager’s back with a complaint; and

·     undermined managers with her comments.

8.      

In her evidence before the Tribunal, Ms Rhodes said the allegations against Ms Moore were potentially very serious. (In exhibit 2, there was also a concern expressed by Ms Rhodes in an email she authored but sent under another manager’s name that confidential information might have been referred to inappropriately in the course of Ms Moore’s comments about other staff.) Ms Rhodes also said she was conscious of the complainants’ expectation that she would take steps to address the conduct. But she explained she was reluctant to commence a formal disciplinary process against Ms Moore. She said she wanted to handle the matter informally, although she agreed in cross-examination that she had not decided for sure how she would proceed when she convened a meeting with

Ms Moore on 22 October 2008. 

9.      

Ms Rhodes said she had previously enjoyed a good relationship with

Ms Moore. Ms Rhodes was obviously happy with Ms Moore’s work. She alluded to the possibility that Ms Moore did not respond well to counselling or criticism, but her impression of Ms Moore was clearly a positive one. Ms Rhodes said she kept Ms Moore’s sensitivity to criticism in her mind when deciding how to respond to the allegations that were made.

10.     

The meeting of 22 October was held in a conference room in Brisbane.

Ms Moore says the meeting was arranged early in the day. She said she understood she was to meet with Ms Austin, who happened to be in Brisbane, for an informal chat. She was not told anything about the complaints. She was not told she had the opportunity to invite a support person. When she arrived at the meeting room,

Ms Austin said Ms Rhodes would join by telephone from Adelaide. Ms Moore said she was shocked when Ms Rhodes came on the line and began to discuss what she recalled were described as being “serious allegations”. She said she was not told at any point that the discussion was part of an informal rather than a formal process.

11.        

The various participants in the meeting offered slightly different accounts of what occurred. I am satisfied that the meat of the allegations was put to Ms Moore, who was given an opportunity to respond in the course of the meeting. Ms Rhodes said she was satisfied Ms Moore did an able job of explaining herself. Ms Moore did not ask for a break in the meeting or request time to deal with any of the issues that were raised, nor did she ask for a support person to be present. Ms Rhodes said

Ms Moore did not appear to be unduly distressed – although it must be remembered Ms Rhodes was on the phone and did not have an opportunity to observe the applicant first-hand. Ms Rhodes said she asked Ms Austin to be present to ensure Ms Moore was alright; Ms Austin was not otherwise intended to have a role in the meeting. Ms Austin said in her evidence that Ms Moore appeared composed and in control. Ms Moore took notes and responded to the matters that were put to her.

12.     Ms Moore says she felt she was being treated like a criminal at the meeting. She compared it to the Spanish Inquisition. She said she was shocked and distressed by the experience.

13.     There is some confusion about what happened in the aftermath of the meeting. Ms Austin said she stayed behind with Ms Moore for about 30 minutes after Ms Rhodes terminated her telephone call. Ms Austin said she and Ms Moore discussed training issues. Ms Moore does not recall staying behind; she says she left the meeting at once when Ms Rhodes concluded her call. I do not think anything turns on this discrepancy between the two accounts. Ms Moore said she was so upset by what occurred that she went home in a visibly distressed state. She saw the doctor on the following day and was given time off.

14.     Ms Moore wrote to Ms Rhodes on 23 October. Ms Moore said she was surprised and upset by what she had learned at the meeting. She told the Tribunal she was concerned that her name had been blackened by things that were being said about her. She asked Ms Rhodes for a meeting in her email of 23 October to get to the bottom of what she believed were unfounded allegations against her.

15.     

Ms Rhodes replied by email on 24 October. The email is reproduced in

exhibit 3. Ms Rhodes said she regarded the matter as closed in light of what

Ms Moore had said at the meeting. Ms Rhodes noted in particular that Ms Moore had agreed she made some comments about other staff. Although Ms Rhodes plainly disagreed with Ms Moore about whether the remarks were appropriate, her criticism of Ms Moore was couched in the most diplomatic language. The letter recommends that “we should move on”. Ms Rhodes made it clear in her evidence that there was no record of the discussion entered onto Ms Moore’s personnel file. But Ms Moore says she is not happy with that response. Ms Moore says Ms Rhodes’ unwillingness to look further into the complaints was part of the circumstances that contributed to the onset of her current condition.

16.     

The letter also refers to the fact that Ms Moore’s office was moved.

Ms Moore says she was being punished by the move: she was not allowed to return to her desk in Pullenvale and she was told she was to be sent back to St Lucia. She subsequently returned to another office at Pullenvale, but Ms Moore said she was clearly being sanctioned in connection with the matters raised at the meeting.

17.     

The reality was more prosaic, according to Ms Rhodes. The office space that had been occupied by Ms Moore had become unavailable. It seems one of the other managers who had complained about Ms Moore requested that she be moved.

Ms Rhodes said the move was a necessary response to changed circumstances. It was not a sanction, and a new office was quickly found for Ms Moore at Pullenvale.

18.     I was impressed by Ms Rhodes. She gave her evidence in a calm and considered way. She made appropriate concessions during the course of cross-examination and, while she was obviously shaken by the way in which this dispute has unfolded, she offered a generous appraisal of the applicant’s ability and performance. The applicant, in contrast, exhibited a less measured appearance in the evidence. She made extravagant claims about Ms Rhodes’ performance at the meeting that seemed inconsistent with the observed demeanour of Ms Rhodes at the hearing. To the extent there is any inconsistency between Ms Rhodes and Ms Moore, I prefer the evidence of Ms Rhodes.

The law

19.     Section 5A(1) of the Act defines the concept of injury, which includes disease, but expressly excludes:

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.

20.     

The expression reasonable administrative action is not defined, although

s 5A(2) refers to a number of examples of administrative action – including reasonable counselling of a formal or informal nature. In this case, Ms Moore was “spoken to” by her manager about matters occurring in the workplace that were properly the concern of a diligent manager, and a decision was taken to relocate an office. I am not sure whether the allegations, if proved, would amount to a contravention of the Code of Conduct or warrant formal disciplinary action. But the allegations are not the focus of my inquiry. I am concerned here with the steps taken by the manager in response to those allegations. I am satisfied:

·the conduct of the meeting on 22 October;

·the decision to move Ms Moore’s office; and

·the reluctance of Ms Rhodes to entertain Ms Moore’s requests for a further examination of the provenance of the allegations against her

amounts to administrative action. But was it reasonable?

21.     The action must be reasonable in its conception – it must be warranted – and it must be reasonable in execution. As it happens, I am satisfied the administrative action was reasonable in its conception. The Code of Conduct (included in exhibit 3) refers to the obligation to “treat colleagues, clients and members of the public with courtesy and sensitivity to their rights, duties and aspirations”. Complaints had been made to Ms Rhodes that Ms Moore was saying things about her colleagues that might have been discourteous or insensitive. Ms Rhodes felt she had to do something in response. The decision to speak to Ms Moore about the allegations was not unreasonable.

22.     Was that response executed in a reasonable way? Counsel for Ms Moore argued there were a number of deficiencies in the process followed by Ms Rhodes. He argued Ms Moore should have been told of the meeting agenda in advance so she could prepare a response. She should also have been afforded the opportunity to bring along a support person. These errors meant the meeting did not comply with the CSIRO misconduct policy, it was said. A failure to comply with the terms of the misconduct policy was (according to the applicant) a good indication that the behaviour of the managers in this case was unreasonable.

23.     

I disagree. To begin with, I am not satisfied Ms Rhodes acted inconsistently with the misconduct policy (assuming, for now, that what was alleged against

Ms  Moore was capable of being considered misconduct – a question on which I do not need to express a concluded view). A flow chart identifying the appropriate procedure when faced with allegations of misconduct is set out on p 9 of the misconduct policy (exhibit 5). The flow chart says a manager should consider at the outset whether there were options other than the formal misconduct process available. Ms Rhodes said that is what she did here: she decided an informal discussion was the best way of dealing with the matter. While she agreed in cross-examination that it was possible disciplinary action might have followed depending on what Ms Moore had said at the meeting, she accepted that would require a separate formal process. Indeed, Ms Rhodes made the point that she thought a formal process at that point in October would be a gross overreaction: a sledge hammer to crack a nut.

24.     I am satisfied Ms Rhodes did proceed fairly and with considerable sensitivity in all the circumstances. The fact Ms Rhodes did not provide an agenda before the meeting or specifically offer Ms Moore the opportunity to arrange a support person does not seem unreasonable in light of the limited objectives of the teleconference and Ms Rohdes’ concern that Ms Moore might react badly. I do not think the fact Ms Rhodes conducted the meeting by telephone is unreasonable: that is the way modern organisations work, and I see no reasons why she should have flown to Brisbane to interview Ms Moore personally given the gravity of the allegations. I also thought there was nothing unreasonable in Ms Rhodes’ reluctance to revisit the allegations at Ms Moore’s request. She took the view there was not thing to be gained from opening that particular can of worms. After hearing both Ms Rhodes and Ms Moore, I gained some appreciation of a complex web of relationships and personalities that would be disturbed by an inquiry of this nature. Ms Rhodes’ instinct to move on was understandable.

25.     Mr Richards, counsel for the applicant, said the misconduct policy was a mandatory policy. He argued that everyone in the organisation would expect that it would be followed. He suggested Ms Moore, with a background in human resources, might have been especially aware of the policy. As I understood the argument, any departure from the mandatory policy was presumptively (if not conclusively) unreasonable. I disagree.

26.     I accept a misconduct policy will provide a useful guide for managers in carrying out administrative action, but I do not think it should be elevated to the status of some sort of code. My focus must be on whether the action that actually occurred was reasonable. Managers are not excused from their obligation to act reasonably just because they follow a procedure laid down by their superiors. Conversely, their behaviour must not be condemned merely because they do not follow such a policy if their conduct was still, in the circumstances, reasonable. Indeed, in this case, I think it could be argued that a reflexive resort to the more elaborate formal process in the misconduct policy would have been so disproportionate that it might have been unreasonable to adopt that course. Ms Rhodes took the intelligent decision to deal with the matter on a less formal basis precisely because she wanted to avoid making the cure worse than the alleged disease. Adopting the trappings of a more formal investigation and commencing a wide-ranging inquiry into the provenance of the allegations would have made the whole business appear more serious than it was.

27.     That leaves only the question of the office relocation. Ms Rhodes insists the move was not a sanction, although it was perhaps a consequence of the complaints. I accept Ms Rhodes explained the reasons for the move in her email of 24 October, and in conversations with the applicant. While the move was an unfortunate consequence of what transpired, I fail to see how it was unreasonable, especially in light of the clear explanation that it was not a sanction.

Conclusion

28.     

I am satisfied that the conduct of the CSIRO managers who dealt with

Ms Moore on 22 October 2008 and in the days that followed was reasonable administrative action within the meaning of the Act. That action appears to have made a significant contribution to the onset of her psychiatric condition, although other events may have also made a contribution. In those circumstances, the decision must be affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: .....................................................................................
  Associate

Dates of Hearing   6-8 July 2011
Date of Decision   2 September 2011
Counsel for the Applicant          Mr D Richards
Solicitors for the Applicant         Prail Lawyers
Counsel for the Respondent     Mr C Clark
Solicitors for the Respondent    Dibbs Barker