MYRNA COWELL and TELSTRA CORPORATION LIMITED
[2013] AATA 208
[2013] AATA 208
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5220
Re
MYRNA COWELL
APPLICANT
And
TELSTRA CORPORATION LIMITED
RESPONDENT
DECISION
Tribunal Dr K S Levy, RFD, Senior Member
Date 10 April 2013 Place Brisbane The decision under review is affirmed.
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Dr K S Levy, RFD, Senior Member
CATCHWORDS
COMPENSATION – Injury or disease suffered due to employment – No liability due to reasonable administrative action – Employment in call centre – Customer feedback for quality control – Workplace performance assessment – Exception for reasonable appraisal of employees’ performance – Undertaken in a reasonable manner – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
CASES
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Re Henderson and Comcare [2010] AATA 700
REASONS FOR DECISION
Dr K S Levy, RFD, Senior Member
INTRODUCTION
The applicant, Myrna Cowell, was employed by Telstra Corporation Limited (Telstra) in a call centre. She was initially employed by Telstra in Sydney in the 1980s and then, subsequently, she was employed again from 1996. She has now worked for Telstra in Maryborough for some time.
As part of her employment, call centre operators are monitored for “quality control”. This monitoring contributes to a monthly and annual performance appraisal system. As part of this system, Ms Cowell, a long-term employee, was given feedback in relation to a call she took on 24 May 2011. After receiving feedback on 1 June 2011 in relation to that call, Ms Cowell discussed the feedback with a relief team leader initially and then, later, with her permanent team leader and then with her manager. Ms Cowell then left work and claimed compensation for an “adjustment disorder with depressed mood” condition which she said was an “injury” under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
Her claim was determined on 27 June 2011, and it was decided that while her condition was significantly contributed to by her employment, liability was denied because it resulted from “reasonable administrative action taken in a reasonable manner” under s 5A of the Act. She then sought further reconsideration of that decision but the original determination was affirmed by decision dated 29 July 2011. She now appeals to this Tribunal for further review.
ISSUES
The questions for determination by this Tribunal are as follows:
1.What is the diagnosis for any injury or disease suffered by the applicant in respect of the feedback provided on 1 June 2011?
2.Does Ms Cowell suffer from an “injury” as defined in s 5A of the Act?
3.If the applicant has a “disease”, was it contributed to any significant degree by her employment with Telstra in accordance with s 5B of the Act?
4.If the answer to either questions (2) or (3) is yes, did the condition arise out of “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” under s 5A of the Act?
5.Consequent upon determinations in questions (1)-(5), is the respondent liable to pay compensation to Ms Cowell under s 14 of the Act?
EVIDENCE
The incident which sparked Ms Cowell’s dissatisfaction at work and her subsequent claim for compensation related to the monitoring of a telephone call which she had with a Telstra client. Therein, she apparently referred to “VLink” incorrectly as “Viclink” and also mispronounced the name of the town “Traralgon”, such that her supervisors thought it would have been hard for the customer to understand her.[1] The applicant said she was upset by the feedback but was told to “get over it”. She further said she was not feeling well and went home. She claimed that the feedback was aimed at her accent as she was born in the Philippines and that the names and pronunciations of these words had never been explained to her and that Telstra did not offer any training in respect of these aspects of her work. In examination-in-chief, the statement of Ms Karen Weston was raised with the applicant and that the matter had been removed from her records.[2] Ms Cowell said she did not recall asking for it to be removed. However, she then mentioned in evidence that she believed that her supervisors had been “targeting her” and she panicked every time she had a telephone call which she had to deal with.
[1] See Exhibit 1, T-document 9, p. 33.
[2] See Exhibit 7.
In cross-examination, she agreed with Mr Black, for the respondent, that she knew some calls were monitored. She also agreed that quality control in relation to customer service was used as a form of performance monitoring.
Ms Cowell was referred to a note she received in an internal envelope about a week after the incident on 24 May 2011. She was asked by Mr Black whether there was any reference in the feedback about her having an accent. She agreed that that had never been directly said to her.
In relation to the evidence of her supervisors, Ms Cowell said she had listened to the recording with her supervisor Ms Rider but did not accept that she had mispronounced any word, but rather that she had “stumbled over the word”. However, she also said that she told Ms Rider that she had trouble pronouncing names. She also agreed with Mr Black that Ms Rider had told her that others were also being “coached” as to the pronunciation of names. Ms Cowell re-emphasised that she thought it was about her accent and not about her mispronunciation. She then acknowledged that she had wanted the decision reviewed and that she wanted it to be changed. She also said she wanted somebody to explain why she got this negative feedback.
The applicant went on to concede that Ms Weston may have told her it was not about her accent but she immediately stated that she did not accept that explanation. It was then put to her that even though her supervisors had changed her record to reflect that her performance would be “100%”, she agreed that she was still not satisfied. When asked why, she merely responded “I didn’t know why that comment was made”.
Evidence was also provided by Ms Jenni Sanders (a relief team leader), Ms Dorelle Rider (team leader) and Ms Karen Weston (manager). Ms Rider, when asked in evidence how serious she considered the feedback, she said she regarded it as normal. When asked whether it would affect Ms Cowell’s performance review she said “no”. Mr Black asked her whether it was intended that they would take any disciplinary action against Ms Cowell as a result of this complaint. Again, she answered “no”. She went on to say that it was just regarded as a “coaching opportunity” because “it wouldn’t have been a good customer experience”. Ms Rider said from the fact of a customer making a complaint, it was apparent that the customer did not understand what Ms Cowell was saying.
Ms Rider agreed that she listened to the call recording with Ms Cowell and thought she may have given the correct information although the “customer experience” was “poor”.
Ms Rider also gave evidence that some of the human resource practices in that case were not optimal but had since been changed. In particular, she said that any feedback should have been done on a one-to-one basis. When asked about the manner in which feedback was given, Ms Rider said the feedback at that time was regarded as the normal method of providing such information and that Ms Cowell had certainly had these reports previously, although she had not previously been sensitive about the feedback. She further said that a number of staff have these meetings monthly and it is an accepted practice.
Sworn evidence was also given by Ms Karen Watson, the applicant’s manager. She said that such feedback was designed to monitor the customer’s experience and these incidents were regarded as a “coaching opportunity”. She explained that the feedback was noted and it helped to record information about key performance indicators for each month. She noted that there were a number of criteria and different weightings were given to each criterion. The criteria used were professionalism, abruptness, whether the customer was rushed, the accuracy of information provided and so on.
Ms Weston was asked how serious she regarded the issue which was raised with Ms Cowell. She responded “not serious at all”. She told the Tribunal that she had also discussed the matter with Ms Cowell; particularly how she had stumbled over the acronym “VLink” on the particular call and that Ms Cowell got a bit confused. She confirmed that she had explained that to Ms Cowell. She also noted this was an internal process and the procedure in this case might not have been strictly followed because, at that time, it was regarded as being the discretion of the team leader about the practice of dealing with an incident of this nature.
Expert evidence of Ms Cowell’s condition was also received by way of a report of consultant psychiatrist Dr Jon Steinberg.[3] He was not required for cross-examination and I admitted the report into evidence. Dr Steinberg gave a comprehensive report about Ms Cowell’s personal history from the time she came to Australian in 1975. She had experienced the deaths of two husbands and he noted also that her medical records from the local medical centre between 1996 and 2012 revealed prescription drugs for “depression” and associated conditions of migraine and sleeping difficulties. These were prescribed in 1996, 1997, 1998, 1999, 2000, 2001, 2002 and 2003. In 2004, in addition to having prescribed medication for sleeping difficulties, she sought the services of a counsellor but did not have depression medication. She was again prescribed antidepressant medication in January 2010 and again in June/July 2011.
[3] See Exhibit 8.
Dr Steinberg also assessed Ms Cowell as having symptoms consistent with a diagnosis of adjustment disorder with depressed mood at the time of the incident. He noted, at the time of seeing her on 28 May 2012, that the applicant indicated she wanted an apology from her managers at Telstra.
Dr Steinberg also discussed her psychiatric history which dated back to 1996 and there was evidence that she had seen a psychiatrist in 2004. He noted that she had a history of having some predisposition to depressed mood when she was faced with life stressors. However, he also noted that her symptoms seemed to have resolved somewhere between mid to late 2011 and that she did not have any psychiatric condition at the time he saw her which would prevent her “from working in any capacity”.
Dr Steinberg opined that the “alleged injury in the workplace did not cause an aggravation of a pre-existing ailment”. He noted particularly that “Ms Cowell appears to have suffered shame and embarrassment after being criticised by her managers”. He also noted her predisposition to depressive episodes may have been related to her concern “… about her age, her capacity to find employment in the future and her financial situation”.
CONSIDERATION
Having considered the evidence of all of the parties, including the expert evidence of Dr Steinberg, I make the following findings of fact:
1.Ms Cowell is a long-term employee of Telstra.
2.The system of feedback for “quality control” had been in place for quite a long time and that Ms Cowell had experienced this on previous occasions. She had not previously been sensitive about it but was particularly sensitive about the nature of the complaint or the management response on this occasion.
3.From her evidence at the hearing, I accept that she did mispronounce the name “Traralgon”.
4.Dr Steinberg’s report, which was not contradicted, is accepted. In particular, I accept that he provided expert evidence, that he was qualified to provide such evidence and the basis of his opinion was formed because of his specialised knowledge on the basis of study, training and experience.[4] I accept his conclusion that Ms Cowell had a diagnosis of adjustment disorder with depressed mood but that it resolved within six months of the date of the alleged incident.
5.On the basis of Dr Steinberg’s expert evidence, I find that Ms Cowell had a “predisposition to depressive episodes dating back many years”.
[4] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743 per Heydon JA.
RELEVANT LEGISLATION
The issues to be answered require consideration of the following legislative provisions of the Act:
14 Compensation for injuries
(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.
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5A Definition of injury
(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.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
(c) that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
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(3) In this Act:
significant degree means a degree that is substantially more than material.
In this case, it has been conceded by the respondent that the applicant satisfies the definition of “disease” and that the condition was contributed to by her employment. Critically, however, the respondent submits that that condition is not compensable under s 14 of the Act because a “disease” comes within the scope of the term “injury” in s 5A and that where an injury or disease results from “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”, then such a condition is excluded from the meaning of the term “injury”.
Section 5A(2) of the Act, which is reproduced above, provides a non-exhaustive list of circumstances which may be considered to be “reasonable administrative action”. Clause (a) of that subsection provides that the appraisal of an employee’s performance is administrative action in the event that it is “reasonable”.
The system of performance appraisal described has been in place for a lengthy period and appears to be a standard process in most areas of employment, particularly in white collar occupations. They are notorious in government and large statutory organisations. The system described in the evidence as used by Telstra appears to be a system of performance appraisal of employee’s performance.[5] The actions undertaken by supervisors with Ms Cowell appear to have been particularly accommodating of the applicant’s sensitivities and, specifically, ensured there were no adverse records made of the incident. Her record of performance was also adjusted to read “100%”.
[5] See Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463.
The issue to be satisfied under s 5A(2) is whether that “administrative action” undertaken was “reasonable”. The respondent submitted that the appropriate test to determine whether it was reasonable has been set out in Re Henderson and Comcare.[6] In that case the Tribunal, following the definition of “reasonably” laid out by the Full Federal Court in Bropho v Human Rights and Equal Opportunity Commission,[7] thought that the actions taken must reflect “rationality and proportionality” in response to an employee’s performance and that the assessment to be made is only whether administrative action is “reasonable” and “not whether it could have been done more reasonably or in a different way …”.
[6] [2010] AATA 700.
[7] [2004] FCAFC 16 at 79.
The Telstra supervisory staff in this case admitted that the system in place at that time gave some discretion to supervisors but that the organisation has now adopted more uniform procedures. Nevertheless, “reasonable” must reflect a balance between a moderate approach with some empathy for an employee who is suffering from a temporary psychological condition while also having regard to generally accepted standards of performance, fairness to other employees and to the standards required by their official duties, company policy and/or legislative prescription. In this case, the response by each of the three supervisors who gave evidence seemed to have been “reasonable” in the sense that their response was rational and fair but was cognisant of the purpose of the performance appraisal system which was about improving performance for the customer. The supervisory staff regarded the incident as merely one which provided a “coaching opportunity”. There was never a possibility that the system was to be used for disciplinary purposes or in any discriminatory way. While Ms Cowell suggests it was discriminatory of her accent, even when the matter was removed from her record, she was unable to describe what else she was aggrieved about and which could require some action by her supervisors.
Dr Steinberg’s evidence was informative and points to a predisposition to depressive episodes which underpinned the behaviour in response to Telstra’s management action. In my view, while the applicant’s condition was related to an incident in her workplace, I find the management response to it was “reasonable administrative action” and I also find it was taken in a “reasonable manner”.
I therefore answers the questions for determination as follows:
1. The diagnosis is adjustment disorder with depressive mood.
2. Yes.
3. Yes.
4. Yes.
5. Therefore, the action taken fits within the exclusion defined in s 5A(2)(a) of the Act. Consequently the claim is not compensable under s 14 of the Act.
DECISION
The decision under review must therefore be affirmed.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member
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Associate
Dated 10 April 2013
Date of hearing 13 February 2013 Advocate for the Applicant Ms Karen Spink Counsel for the Respondent Mr Matt Black Solicitors for the Respondent DLA Piper
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