Muir and Comcare (Compensation)
[2015] AATA 612
•19 August 2015
Muir and Comcare (Compensation) [2015] AATA 612 (19 August 2015)
Division
GENERAL DIVISION
File Number(s)
2014/2504
Re
Linda Muir
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Date 19 August 2015 Place Canberra The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for an adjustment disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
................................[sgd]...................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employees – injury caused by work – date of injury – whether reasonable administrative action – whether carried out in a reasonable manner – decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1998 (Cth)
Cases
Abrahams v Comcare (2006) 93 ALD 147
Beasley v Comcare [2012] AATA 411
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Hart v Comcare (2005) 145 FCR 29
Kennedy v Comcare [2013] AATA 696
Quick v Comcare (2010) 115 ALD 451
Wilson and Comcare [2010] AATA 396
Zdziarski v Telstra Corporation Limited [2015] FCA 207Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000 (DSM-IV)
REASONS FOR DECISION
Deputy President Gary Humphries
19 August 2015
Summary
The reviewable decision dated 14 April 2014 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for an adjustment disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
Background
Linda Muir has been working for the Australian Federal Police (the AFP) as an unsworn employee for more than 20 years, although not continuously. She is married to a retired AFP Sergeant. She has worked in both the ACT and National “Regions” of the AFP and in a range of operational areas, most recently in the Exhibition Management Centre of ACT Policing and in Forensics in the National Region. As at the hearing of this matter before the Tribunal, she remained an employee of the AFP.
Despite her long service in the organisation, Ms Muir has had a number of unpleasant experiences in her dealings with AFP colleagues. These have ranged from instances of bullying and sexual harassment dating from 1993 to the incidents which form the basis of the decision presently before the Tribunal for merits review. A claim for post-traumatic stress disorder arising from “sexual abuse and harassment” (in Ms Muir’s words) was accepted by Comcare in 1993.
The legislation
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides:
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 s 5A:
(1) In this Act:
"injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Ms Muir’s claim and Hart’s case
The present claim before the Tribunal rests on several matters involving Ms Muir, some lasting for a year, between 2010 and 23 October 2013. It was contended by Ms Muir that each of these matters contributed significantly to the injury she sustained pursuant to s 14 of the Act. I will categorise these matters, and the periods over which they occurred, as follows:
(a)a claim against co-worker Moira Johnson of bullying and harassment from 2010 to 2011;
(b)a claim against co-worker Robyn Douglas of bullying and harassment from February 2012 to February 2013; and
(c)a claim against Federal Agent Mark Simpson of sexual harassment in April 2012
I will refer to these three matters as the 2010-2012 matters, noting that the matter involving Robyn Douglas actually extended to February 2013.
(d)incidents surrounding Ms Muir’s failure to be selected for a Team Leader Business Support position, between July and September 2013 (the Business Support matter);
(e)incidents surrounding Ms Muir’s application for a Team Leader – Training position, between May and October 2013 (the Training matter); and
(f)a series of incidents at the Weston Creek complex which culminated on 23 October 2013 (the Weston matter)
I will refer to these three matters as the 2013 matters.
There were other incidents referred to in Ms Muir’s testimony and in tendered documentation, for example a sexual and physical assault in 1993 and certain incidents involving Assistant Commissioner Julian Slater in 2013. For the reasons set out at paragraphs [33]-[44] I do not consider it necessary to consider each and every incident for the purposes of this application.
The proper categorisation of the causes of an applicant’s injury is important in light of the Federal Court’s decision in Hart v Comcare(2005) 145 FCR 29. There the applicant brought a claim under ss 14 and 19 of the Act in respect of incidents surrounding her failure to obtain a promotion in the Department of Defence. The employer claimed that “reasonable disciplinary action” applied to the Department’s process of dealing with the promotion, and precluded the applicant’s claim. The Tribunal below held that, in considering the “multiple concurrent causes” of the applicant’s adjustment disorder, she could rely on those incidents which materially contributed to her injury but which were not caught under the heading of reasonable disciplinary action to succeed in her claim.
The Full Court of the Federal Court disagreed, and its decision is now authority for the proposition that if an injury under the Act is the result, even partially, of an excluded cause, it is irrelevant that other employment-related causes may also have contributed to the injury (noting that, under the Act as it now stands, the relevant exclusion is “reasonable administrative action” (s 5A) and the test of contribution is “to a significant degree” (s 5B)).
The methodology imposed on decision-makers under Hart, where the s 5A exclusion is in issue, necessarily involves separating what may in fact be closely interrelated circumstances leading to an employee’s injury into separate strands or causes. An employee has an entitlement under the Act for an injury “that is a physical or mental injury arising out of, or in the course of, the employee’s employment” unless the injury was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. The necessary connection with employment was defined in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 to mean action with respect to the employee as employee and his or her employment relationship with the employer (at [30]). In a practical sense, where an employee is able to show that their injury arises out of their employment, it falls to the employer to demonstrate that the injurious actions were in fact reasonable, taken in respect of the employee’s employment, and taken in a reasonable manner. Each of these arms of the test are important, in that, in cases where an employer’s conduct robs it of the rubric “reasonable”, the further question of whether this conduct occurs “in respect of the employee’s employment” must be answered. Thus it may be that an employer may do something which amounts to a reasonable action taken in a reasonable manner which nonetheless injures that employee, but the action will not be caught by s 5A if it is not done “in respect of the employee’s employment”. Similarly, reasonable administrative action, taken reasonably and in respect of the employee’s employment, will also fall outside s 5A if it cannot be shown to have contributed to a significant degree to the complained-of injury. The identifying of each of the strands or “causes” of an applicant’s injury therefore assumes some importance.
There is also a temporal consideration. To fall within the s 5A exclusion, reasonable administrative action in respect of an employee’s employment must occur prior to the point where the employee is injured. There must be a causal connection: Zdziarski v Telstra Corporation Limited [2015] FCA 207. Hart’s case should not be understood as allowing reasonable administrative action to validate, ex post facto, actions which have already significantly contributed to an employee’s injury.
Such considerations apply here. Comcare concedes that each of the three matters which occurred in 2013 contributed significantly to Ms Muir’s condition, but asserts that the employer’s conduct in each case should be characterised as reasonable administrative action, taken reasonably, in respect of her employment. Ms Muir, in turn, asserts that, in respect of the Business Support matter and the Training matter, the AFP’s conduct cannot be characterised as “reasonable”, and in respect of the Weston matter that the AFP’s actions were not undertaken in respect of her employment. Counsel for Ms Muir also invited the Tribunal to consider whether the 2010-2012 matters themselves caused an injury, such that later reasonable administrative action in 2013 cannot be relied upon to avoid liability.
For reasons set out below, I find that each of the six matters referred to in paragraph 6 above contributed significantly to the condition Ms Muir has claimed for. I further find that most of these matters do not fall under the exclusion in s 5A, but that two matters – the Training matter and the Weston matter – are properly to be considered reasonable administrative action, taken in a reasonable manner, in respect of her employment.
I turn now to a discussion of the six causes of Ms Muir’s condition.
The 2010-2012 matters
In her statement of 3 September 2014, Ms Muir details “bullying and harassment” from Moira Johnson, a team leader in Crime Scenes and Ms Muir’s superior. The following assertions are taken from that statement. For some 12 months beginning in 2010, Ms Muir was subject to “bullying and harassing behaviour” from Ms Johnson, examples of which include:
·“calling me at home, out of hours on a frequent basis”;
·frequently changing Ms Muir’s “time recording for my hours worked without my consent”;
·“speaking behind my back in uncomplimentary and denigrating terms on several occasions”;
·“regularly talking about my conduct and behaviour in the office, her constant nit-picking and fault finding and criticism of me”;
·questioning of Ms Muir’s “Corporate Card spendvision”;
·“times when Ms Johnson would stand over me to ensure I was entering the duty sheets in her way which was contrary to the advice I was given by SAP Admin and these entries would affect the members’ pay”; and
·“invit[ing] me to an ‘informal’ meeting in her office which turned out to be of a disciplinary hearing [sic] and shouting match for a period of 2 hours”.
In her testimony before the Tribunal, Ms Muir added to these issues in relation to Ms Johnson:
·“she questioned me about my uniform”;
·“in 2010 I put in a complaint about her bullying manner”;
·for the 3 months while this complaint was investigated, Ms Muir was required to continue sharing an office with Ms Johnson.
Ms Muir indicated that she always felt “upset, offended and very unhappy with Ms Johnson’s continual unwelcome behaviour towards me, to the point where I dreaded going to a job I otherwise love”. She further reported that, in consequence:
…my self-confidence was eroding, due to the constant high levels of stress I was experiencing and my anxiety was mounting…
I experienced on a daily basis sweating, trembling, shaking, palpitations, panic attacks all caused by the thought of her calling me, coming into my workspace, unwelcomed behaviour and my integrity questioned.
Ms Muir reports that her complaint against Ms Johnson was dealt with by Professional Standards, and that her complaint was “established”. She did not make a claim for workers’ compensation in relation to these events, but did see her GP, Dr Nambiar, who prescribed her anti-depressant medication. She took days off “here and there with respect to Johnson’s behaviour”.
In February 2012 Ms Muir commenced working with Robyn Douglas, who she says was an administrator and “junior to me”. Ms Muir recounts “bullying and harassing behaviour” from Ms Douglas for some 12 months. Details of this behaviour is again to be found in her statement of 3 September 2014:
·Ms Douglas would make “unfounded and denigrating comments to other staff members [names listed]. I was informed by each of these people that she had uttered denigrating and untrue comments with respect to me”;
·She sent an email “falsely accusing me of misusing her Corporate Credit Card”;
·She “would make it clear to the above named colleagues that she hated me and made comment that she displayed a great dissatisfaction at having to work with me”.
In her testimony before the Tribunal, Ms Muir added to these issues in relation to Ms Douglas:
·on one occasion Ms Muir returned to the workplace after an absence to discover that Ms Douglas “had been talking to people about me, maliciously damaging my reputation”;
·on a number of occasions Ms Douglas had been talking about Ms Muir behind her back;
·she sent Ms Douglas an email in which she asked her to “please stop maliciously spreading rumours and gossiping about me”;
·going to work with Ms Douglas made her “physically sick, going to work mentally drained; I was humiliated that she had damaged my reputation”;
·“I was sweating all the time, I was shaking all the time… I’d go to work and literally hide behind walls some days, frightened to see her…”
This behaviour continued from February 2012 to February 2013. Ms Muir complained to her supervisor and also to Assistant Commissioner Leanne Close.
In her statement, Ms Muir also says that in April 2012 “I was subject to sexual harassment by Mark Simpson, a Federal Agent and employee of the Australian Federal Police”. In an incident report (undated, but bearing number 20080811) Ms Muir recounts that this “related to some derogatory, suggestive and sexually explicit and inappropriate comments made to me by F/A Simpson”. She further detailed in her oral testimony the following with respect to Federal Agent Simpson:
·“Mr Simpson would often find a way to touch you; he would stand behind me and breathe quite heavily”;
·At a “forensic showcase” in Sydney Mr Simpson made sexually suggestive comments to her.
She brought a complaint against Federal Agent Simpson through the AFP’s CRAMS system (the AFP’s internal online complaints system), which she said was “substantiated”. He was, she said, suspended from the federal police for about 3 months.
She gave evidence that, late in 2012, there were reports that Mr Simpson was returning to Forensics. She said that her anxiety levels increased, that she was very nervous, very scared about him returning to work in her area, and she said I felt physically sick.
Her claim for workers’ compensation dated 20 November 2013 includes as the basis for her claim a five-page, detailed incident report. In that report she provides an account not only of the 2013 matters which immediately preceded the claim but also the 2010-2012 matters. However in its initial determination of the claim on 24 January 2014, Comcare makes detailed reference to the 2013 matters but almost none to the 2010-2012 matters. The decision-maker also says I am satisfied you provided notice of your injury as soon as practicable under section 53 of the SRC Act. In Comcare’s reconsideration of the original determination dated 14 April 2014, the decision-maker acknowledges that one of the bases for the request for reconsideration was Ms Muir’s assertion that the Weston matter was the culmination of an already long list of issues of ongoing events. Notwithstanding this acknowledgement, the decision-maker again focuses almost exclusively on the 2013 matters.
In her application initiating the present merits review, Ms Muir gave among her Reasons for Application:
I should add I do not accept the date of the injury to be 23 October 2013 solely. There were a number of work-related incidents commencing in 2011 and leading up to the incident on 23 October was the culmination as a result of those incidents for which I had received treatment [sic].
The Amended Statement of Facts Issues and Contentions filed on behalf of Ms Muir and dated 18 March 2015 makes no reference to the 2010-2012 matters, but her statement lodged with the Tribunal and dated 3 September 2014 makes detailed reference to those matters.
The medical evidence
In a medical report tendered by Comcare dated 29 September 2014, Dr Michael Hong records that Ms Muir suffered from recurrent anxiety and depressive symptoms “which she attributed to various issues at work over many years”. He diagnosed “a personality related adjustment disorder on the background of high interpersonal sensitivity.” Under the headings Presenting Complaints and Past Psychiatric History, Dr Hong recounts Ms Muir’s description of a number of work-related incidents, including apparently those incidents which make up the 2010-2012 matters. Dr Hong also reports:
Ms Muir presented as a woman with a high level of interpersonal sensitivity and personality vulnerability, and this explains why her psychiatric reaction appears so unusual and inordinate in the context of described work issues. It also explains why her psychiatric incapacity appears prolonged for the type of work-related stressors she described.
In its letter of 15 September 2014 commissioning Dr Hong’s report, Comcare instructs the doctor that The applicant reported first noticing her condition, and first seeking treatment for it on 23 October 2013. In his subsequent report Dr Hong traverses the 2010-2012 matters, then responds to specific questions from Comcare, questions focusing only on the 2013 matters.
In his evidence before the Tribunal, Dr Hong indicated that the condition he observed during his examination of Ms Muir in September 2014 was the product of a combination of her workplace conditions and “personality factors”. He was not specific about which “workplace conditions” contributed to her condition. Under cross-examination, he agreed, however, that the workplace issues to which he was referring relied heavily on Ms Muir’s self-report as to their importance. He further agreed that the sexual harassment incident in 2012 was “quite a significant factor” in relation to her condition. He also agreed that his report should not be read as indicating that the 2013 matters were the only factors contributing to Ms Muir’s condition.
His attention was drawn to the “Diagnostic criteria for Adjustment Disorder” in DSM-IV (to which Mr D’Cruz, clinical psychologist, referred in a tendered report). Those criteria refer to:
The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
His evidence with respect to this criterion was that a stressful event occurring within 3 months of the development of emotional behavioural symptoms was more likely to have been a contributing factor than an event occurring more than 3 months before the development of those symptoms.
Mr D’Cruz gave evidence that there had been “a series of incidents” contributing to Ms Muir’s condition, of which the event of 23 October 2013 was “the last straw”. He said it was difficult to determine when Ms Muir might first have been suffering from a psychological condition, but agreed that symptoms such as “daily sweating, trembling, shaking, palpitation” would put her outside the bounds of normal mental functioning and behaviour.
Consideration
It was accepted before the Tribunal that, when she went off work on 23 October 2013 following the Weston matter, Ms Muir had an injury, or more specifically an ailment, under s 14 of the Act. For reasons which I set out below, I consider that two of the 2013 matters – or causes, to adopt the language of the Full Court in Hart – giving rise to Ms Muir’s complained-of condition constituted reasonable administrative action, per s 5A. This conclusion in turn imposes upon the Tribunal consideration of two alternative scenarios based on the evidence before it:
Scenario A: Ms Muir suffered her injury on 23 October 2013. The 2013 matters were significant contributors to that injury. The 2010-2012 matters may also have contributed significantly to that injury. Because at least one of the causes of that injury falls within the definition of reasonable administrative action under s 5A, all the causes are excluded from constituting an injury under the Act. Ms Muir must fail.
Scenario B: Ms Muir suffered an injury or injuries, some time prior to May 2013, to which the 2010-2012 matters, or some of them, were significant contributors. The 2013 matters were significant contributors either to a fresh injury or injuries, or to an aggravation of the injury or injuries arising from the 2010-2012 matters. Because there is no suggestion of reasonable administrative action in relation to the 2010-2012 matters, s 5A does not apply. Ms Muir must succeed.
On balance, I regard Scenario B as better reflecting the totality of the evidence before the Tribunal. I set out below my reasons for this opinion.
Counsel for Comcare argued on the opening day of the hearing that a finding that injuries occurred in the period 2010-2012 was beyond the Tribunal’s jurisdiction:
…to the extent that they [the events of 2010-2012] relate to a separate injury this Tribunal does not have jurisdiction with respect to that separate injury, the only relevant decision under review being the decision with respect to section 14 liability in relation to this injury, and by that the respondent means the aggravation of the applicant’s adjustment disorder which gave rise to the period of incapacity [i.e. following 23 October 2013]. To the extent that there might have been earlier aggravations of that condition they might properly have been the subject of separate claims. The respondent… has prepared its case on the understanding that the relevant contributors are those identified in …the 2 relevant medical reports before the Tribunal and to the extent that the claim has been widened in this way we are just alive to the fact that we may be straying into the territory of a different aggravation, and there isn’t the medical evidence to assist the Tribunal in any event on that question.
Counsel for Comcare went on to argue that Comcare had not made a decision in respect of the 2010-2012 matters, and that if the Tribunal regarded those matters as being part of the present claim, they should be remitted to Comcare for a decision.
I cannot accept this submission. Ms Muir’s original claim for workers’ compensation included reference to the events of 2010-2012 as a basis for her claimed injury. In seeking reconsideration of the original rejection of her claim on 24 January 2014, Ms Muir again sought a decision which took into account the 2010-2012 matters. And she again pointed to those matters in her application to initiate the review by this Tribunal. Although the documentation filed on her behalf prior to the hearing did not consistently highlight these matters, some of it – her statement of 3 September 2014 in particular – most certainly did. Her counsel pressed those matters at the outset of the hearing, and throughout. If Comcare has not made a decision in respect of the 2010-2012 matters, as was submitted at the hearing, this was because it repeatedly chose to discount their relevance, and not because the matters were not properly before it. There is no unfairness to Comcare because it had notice throughout the process that these matters were relevant.
Nor does consideration of the 2010-2012 matters “stray outside” the medical evidence. It is true that in its instructing letter commissioning Dr Hong’s report on Ms Muir’s injuries, Comcare asks the doctor for commentary on the contribution made to her condition by the events of 2013, but neglects to seek similar commentary with respect to the events of 2010-2012. Dr Hong, nonetheless, makes reference to those events, in part because Ms Muir recited them during the consultation as being relevant to her psychiatric injury. In cross-examination, he readily conceded that the sexual harassment incident in 2012 was “quite a significant factor” in relation to her condition.
Abrahams v Comcare [2006] FCA 1829 is authority for the proposition that the Tribunal may reformulate the terms of a claim for workers’ compensation, consistent with the evidence before it, notwithstanding the claim’s characterisation by an earlier decision maker. However, I do not regard the present matter as requiring any reformulation of the applicant’s claim; it has always been her claim that she sustained an injury, specifically a mental injury, arising out of, or in the course of, inter alia, the events of 2010-2012, events intimately connected with her employment.
There was some suggestion before the Tribunal that Ms Muir’s claim might fail under the terms of s 53 of the Act:
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury;…
I note however that the original decision-maker determined:
I am satisfied you provided notice of your injury as soon as practicable under section 53 of the SRC Act.
No doubt this concession was based on Comcare’s misapprehension of the basis for Ms Muir’s claim. Nonetheless, I would regard it as inequitable for Comcare to now seek to defeat the claim on this ground, given that the misapprehension lies entirely at the feet of Comcare.
Under Scenario A, the deemed date of Ms Muir’s injury pursuant to s 7(4) of the Act is 23 October 2013. The difficulty in accepting this as the better account of the injury she suffered is the very long lead time between what were obviously traumatic events as early as 2010 and the onset of an injury in October 2013. Counsel for Comcare made reference to the DSM-IV-TR Diagnostic criteria for Adjustment Disorder, the import of which was that stressful events occurring more than 3 months prior to the development of emotional behavioural symptoms were less likely to have contributed to the development of those symptoms than those occurring within 3 months.
Dr Hong considered that the events of 2010-2012 could have contributed to an injury in October 2013, but he was not specifically asked to address the question of whether an injury might have occurred prior to that date. Comcare’s letter commissioning his initial report specifically instructed him that The applicant reported first noticing her condition, and first seeking treatment for it on 23 October 2013, a statement that was wrong given that Ms Muir consulted her GP about a work-related stress condition in 2010. In his written report, Dr Hong said that Ms Muir did not disclose any other significant factors in the onset of her injury other than the 2013 matters, but he qualified this in cross-examination when conceding that events prior to 2013 could have been significant. He specifically nominated the sexual harassment incident in 2012 as “quite a significant factor”.
The test of whether stress constitutes a mental injury is found in Comcare v Mooi (1996) 69 FCR 439. The Federal Court there held that it was essential for an employee to succeed to demonstrate that he or she is in a condition that is outside the boundaries of normal mental functioning and behaviour (at 444). Against this test, I note the following evidence before the Tribunal with respect to the bullying and harassment alleged to have been occasioned to Ms Muir by Ms Johnson:
·Ms Muir reported “my self-confidence was eroding, due to the constant high levels of stress I was experiencing and my anxiety was mounting”;
·she also reported “sweating, trembling, shaking, palpitations, panic attacks”;
·she had, according to Comcare’s medical witness, a “pre-existing or underlying vulnerability for anxiety and depression”;
·she made a complaint against Ms Johnson, a complaint which was apparently upheld;
·during this time she consulted her GP, Dr Nambiar, who prescribed her anti-depressant medication;
·she took days off “here and there” in response to Ms Johnson’s behaviour.
The other 2010-2012 matters have comparable histories, except that Ms Muir does not appear to have sought medical attention directly in relation to them.
Significantly, this evidence went substantially uncontradicted by Comcare during the hearing, no doubt as a result of its prior misapprehension as to the nature of her claim. I acknowledge this handicap faced by the respondent, and I also acknowledge that Ms Muir herself was not an impressive witness. Matters of which she had some recollection under examination by her own counsel she appeared to have no recollection of under cross-examination by Comcare’s counsel, an inconsistency which might have been explained by nervousness. Nevertheless, the Tribunal is faced with largely uncontradicted evidence that at various points between 2010 and 2012 Ms Muir suffered episodes which appear to have taken her well outside normal mental functioning and behaviour, and this reading has some support from the medical evidence. There is little reason not to accept Ms Muir’s assertions in relation to these matters.
Accordingly, I find that the events which make up what I have called the 2010-2012 matters did significantly contribute to an injury Ms Muir sustained. Because the clinical notes of Dr Nambiar were not tendered, the most likely deemed date of injury under s 7(4) of the Act is uncertain, but it would be the date in 2010 or 2011 when Ms Muir consulted her for the work-related condition and was prescribed an antidepressant.
The 2013 matters
For the sake of completeness – and because they occupied so much of the hearing – I set out a brief summary of those matters. It was conceded by Comcare that each of these matters had contributed significantly to Ms Muir’s condition, but it contended that each was properly characterised as reasonable administrative action under the exclusions in s 5A.
(a)The Training matter
In March 2013, Ms Muir transferred to ACT Policing, where she worked in the Exhibition Management Centre.
In May 2013, Ms Helen Whitfield, with whom Ms Muir had had previous conflicts, applied for a position in the AFP of Team Leader – Training. On 17 and 19 July 2013, Ms Muir sent a series of text messages from her AFP-issued mobile phone, including to that of her friend Federal Agent Todd Peachey, who was a member of the selection panel for the above position. In these messages Ms Muir made enquiries and passed comments about Ms Whitfield’s progress through the selection process. Information she obtained from Mr Peachey was apparently then passed on to other staff in the AFP.
On 17 September 2013 Ms Muir returned, by internal mail, her AFP-issued phone. It was received by Ms Whitfield who, on checking the phone’s contents, discovered a number of text messages, including some referring to her. These messages made it clear that Ms Whitfield had been unsuccessful in her application for the Team Leader – Training position. Ms Whitfield raised the matter of the messages with Ms Hilary Fletcher, the chair of the selection panel. A CRAMS complaint was lodged by Ms Fletcher in relation to these messages. Ms Whitfield took the phone to Digital Forensics, who captured the text messages on a disc using an “ACESO machine”.
Ms Muir gave evidence that she thought she (or her son on her behalf) had deleted all text messages from the phone before returning it. There was also conflicting evidence about whether the use of the ACESO machine by Digital Forensics was a breach of AFP protocols, in that the technology was meant to be used for criminal investigations. It was alleged for Ms Muir that the breach of these protocols denied her employer’s actions the mantle reasonable administrative action.
Ms Muir attended her GP, Dr Nambiar, on 27 September 2013. Dr Nambiar later recorded in relation to that consultation “severe stresses at work” and an “inability to continue to work in her current position”. She further recorded:
Mrs Muir was very anxious and teary and it was clear to me that going back in the same work environment was detrimental to her mental and physical health.
Dr Nambiar wrote Ms Muir a script for Pristiq. Other tendered documentation suggests that Ms Muir remained distressed and anxious about this incident, and the process by which it was being internally investigated, through until her return to Forensics in October. The internal investigation of the CRAMS complaint led to a finding on 28 November 2013 that Ms Muir had breached the AFP Code of Conduct, for which she was to undergo counselling and have the incident recorded in her Performance Development Agreement.
(b)The Business Support matter
Contemporaneously with the incident above, Ms Muir applied for a position in the AFP of Team Leader Business Support (Pool). Federal Agent Peter Webster was a member of the selection panel. On 15 August 2013 Ms Muir was interviewed by the panel for the position but, according to Federal Agent Webster, she was “obviously very nervous during her interview and her interview did not go well”. During an unrelated telephone conversation on 9 September 2013 Ms Muir asked Federal Agent Webster about the outcome of the interview. In a later statement Mr Webster recounted:
She then said are you telling me that I have not got the Team Leader position and I said that I cannot tell her that as the ISAP process had not been completed. She asked for me to tell her unofficially as a friend and I said that the process is not finished as we have to go to all referees to formulate the final assessments, however IK [sic] did tell her as a friend that she did not go well in the interview. Linda was upset and said so you are telling me that I did not have the job and hung up.
The following day Federal Agent Peachey accompanied Ms Muir to an “informal meeting” with Federal Agent Webster to discuss her application for the position. Federal Agent Peachey later reported in relation to that meeting that [u]nfortunately the conversation only made her become more upset and agitated and I also attempted to assist her in coping with the ongoing issues. Federal Agent Webster later said:
Linda arrived at the coffee shop with Federal Agent Todd Peachey and she was visibly upset, agitated and angry.
He also reported that Ms Muir then referred to a “conspiracy” in which Assistant Commissioner Julian Slater “had influenced the process”.
It was Comcare’s position before the Tribunal that these events, while contributing to a significant degree to Ms Muir’s adjustment disorder, constituted reasonable administrative action undertaken in a reasonable manner under s 5A(2)(f) of the Act.
(c)The Weston matter
On 21 October 2013 Ms Muir returned to her substantive position in Forensics. The following day she reported to her supervisor, Federal Agent Kylie McCann, that she had observed a colleague, Bianca Francis, looking visibly upset and attributed that to a change in internal policy processes. There followed a conversation between Ms Muir and Ms Francis which seems to have proceeded on the basis of some mutual misunderstanding. The conversation left Ms Francis distressed.
On 23 October Ms Francis asked Federal Agent McCann to facilitate a meeting between herself and Ms Muir to discuss the issue. Later that morning, Federal Agent McCann invited both women into a spare office at the Weston police complex to discuss the matter. Ms Muir later recounted that:
As soon as I sat down Bianca started to accuse me of discussing her personal issues and to stop spreading rumours. There was no warning and no time... for me to ask any questions and I could not believe what I was hearing. I was shocked and stated that she was lying. I turned to Kylie and said this was all lies I am not staying here this is not what I wanted to come back too [sic] and I am not taking what is being said. I collected my bag and I walked out.
Ms Muir left the building in a distressed state (she testified: I need to get out of here; I’m trapped). Her husband was called to take her home. She was later certified unfit to return to work and commenced a period of several months off work.
Comcare contended before the Tribunal that these events constituted reasonable administrative action to resolve a workplace dispute and fell under s 5A(2)(b) of the Act. However, counsel for Ms Muir contended that the events did not fall under any provision in s 5A(2).
(d)Consideration
Although, as indicated above, I do not consider that the 2013 matters are relevant in the determination of this application, if they had been relevant I would have made the following findings.
In relation to the Training matter, I believe that the AFP’s actions were reasonable administrative actions, taken reasonably. Although the evidence was not conclusive, I believe that the use by Digital Forensics of the ACESO machine to retrieve text messages from Ms Muir’s phone was not a breach of AFP protocols. Accordingly, its process in investigating the misuse of the mobile phone meets the test of being “tolerable and fair”: Wilson and Comcare [2010] AATA 396.
In relation to the Business Support matter, I am not satisfied that the AFP’s conduct meets that test. The evidence led suggested that it was a breach of AFP protocols for a party to an interview process to be advised of the conduct or outcome of that process before it had officially concluded. The breach was not a serious one, but it was a breach nonetheless. It is true that Ms Muir solicited that breach herself, by asking Federal Agent Webster for unofficial advice of the outcome, but her own flouting of the proper process cannot be an excuse or pretext for other servants of her employer to do likewise.
In relation to the Weston matter, the Amended Statement of Facts, Issues and Contentions submitted on Ms Muir’s behalf an 18 March 2015, characterised the meeting on 23 October as “disciplinary in nature”. Although her counsel subsequently withdrew this description, as was his right, I believe it nonetheless properly characterises what occurred on that day. The meeting between the 3 women should be seen as a low level or preliminary step in what might have become a more formal disciplinary procedure at a later point. In Kennedy and Comcare [2013] AATA 696, the Tribunal held that a meeting which was intended to “draw [a] matter to [the applicant’s] attention in an informal way” constituted reasonable administrative action notwithstanding that there was no expectation this informal step would be followed by more formal ones. Quick and Comcare (2010) 115 ALD 451 is to similar effect.
Consequently, I find that the conduct of other AFP staff that day was “tolerable and fair”, and thus amounts to reasonable administrative action, of the kind referred to in s 5A(2)(b).
However, on the basis that Ms Muir had already sustained her injury prior to the 2013 matters, these findings do not assist Comcare.
The reviewable decision dated 14 April 2014 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to Ms Muir for an adjustment disorder under s 14 of the Act.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries ...........................[sgd]...............................
Associate
Dated 19 August 2015
Date(s) of hearing 9 June 2015 and 10 June 2015 Counsel for the Applicant Karl Pattenden Solicitors for the Applicant Nicholl & Co Lawyers Counsel for the Respondent Danielle Tucker Solicitors for the Respondent Sparke Helmore
7
0