Nguyen and Comcare (Compensation)
[2018] AATA 1623
•6 June 2018
Nguyen and Comcare (Compensation) [2018] AATA 1623 (6 June 2018)
Division:GENERAL DIVISION
File Number: 2016/2377
Re:Nguyet (Mary) Nguyen
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Bernard J McCabe
Date:6 June 2018
Place:Canberra
The decision under review is affirmed.
..............................[sgd]......................................
Deputy President Bernard J McCabe
CATCHWORDS
COMPENSATION – section 14 SRC Act – whether reasonable administrative action – claimed bullying – claimed mismanagement – impact of performance review outcome on applicant – onset of condition – section 5A SRC Act exclusion applicable – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5A(2), 5A(2)(a), 5A(2)(f), 5B, 14
CASES
Commonwealth Bank of Australia Ltd v Reeve [2012] FCAFC 21
REASONS FOR DECISION
Deputy President Bernard J McCabe
6 June 2018
INTRODUCTION
Mary Nguyen developed depression and stress while she worked. She says she was the victim of a pattern of bullying and mismanagement at the hands of her superiors in the workplace. She claims Comcare is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) as a result. Comcare accepts the applicant suffers from a disease within the meaning of s 5B of the SRC Act but has denied liability because it says the disease was suffered as a result of reasonable administrative action within the meaning of s 5A(2). Comcare denies the applicant was bullied or mismanaged as alleged. It points instead to the applicant’s unhappiness at the outcome of a performance review and a decision to downgrade her engineering authority.
While I am critical of aspects of the employer’s conduct towards the applicant, I am satisfied the actions which brought on the applicant’s health conditions are properly attributable to reasonable administrative action. That means Comcare is not liable for the applicant’s condition. I explain my reasons below.
What happened?
The background
The applicant is a middle aged lady. She is a qualified electrical engineer with an interest in aeronautical engineering. She has worked in defence-related industries for about 20 years. She commenced her employment with the Department of Defence in 2003. In 2007, she became Deputy Senior Design Engineer in the Aeronautical Life Support Logistics Management Unit (ALSLMU). The ALSLMU was part of the Marine Patrol Systems Program Office (MPSPO) which was headed by an air force officer with the rank of Group Captain. The applicant’s role was classified as Executive Level 1 (EL1). She initially reported to a manager who was classified as Executive Level 2 (EL2). She said in her statement (exhibit 1 at p 19) that she was the only female EL1 in the ALSLMU.
It seems the applicant has experienced friction in the workplace for some time. During her evidence-in-chief, she spoke about difficulties she experienced in dealing with Mr McIntyre, her first supervisor. In her supplementary statement dated 30 March 2017 (exhibit 24), she recalled Mr McIntyre expressing doubt over her appointment as deputy senior design engineer in 2008. The statement also refers to her differential treatment at the hands of various personalities within the office over time. She recalled receiving positive reviews from Squadron Leader (SQNLDR) Gonzales, a previous supervisor, who had rated her performance as ‘superior’, while Mr McIntyre and Mr Philip Snook, another supervisor, had merely endorsed her as ‘fully effective’.
The applicant appeared to have a good relationship with Mr Gonzales. She recalled in her oral evidence how he tended to focus on achieving results rather than on the precise hours she worked. That flexibility with respect to ‘core hours of work’ made her life with a young family much easier to manage. She also mentioned SQNLDR Hermann (another former supervisor) favourably in this regard.
Ms Nguyen said in her statement (exhibit 1 at p 19) that things had become more difficult in 2009 when she:
…was effectively demoted and directed to report to a Squadron Leader (SQNLDR) Senior Design Engineer, Air Force officer, who was only an APS6 equivalent. From that time forward, it appeared to me that I was excluded from ALSLMU’s meetings and decision-making.
The statement goes on to say her position was initially advertised at the APS6 level but it did not attract any suitable applicants at that level. It was upgraded to an EL1 position by the time Ms Nguyen applied. The upgrade was justified, she said, by adding a requirement that the successful applicant be a chartered professional engineer, amongst other things. But while she was able to obtain the role because of her professional qualifications, she did not feel those qualifications were properly valued once she started work. She explained (exhibit 1 at p 19):
…From [September 2009], I found my work environment became more difficult, as my input was considered less and less valued, despite my experience and qualifications. Over the ensuing years, it appeared to me that my opinions were not given any consideration, and this caused me to become distressed and it undermined my confidence as executive member of the organisation and a Senior Engineer.
This information about reporting lines and status is important. It was a recurring theme in the evidence I heard over the course of the proceedings. The applicant clearly exhibited a degree of pride in her professional qualifications and status. She appeared to have expectations about her role and the autonomy she would be given that might sound familiar to anybody from a professional background. She bridled at reporting to a non-professional person of lower rank. She felt her professional expertise and role was not given proper respect within the organisation.
There may be something to the applicant’s thesis that the organisation was not sufficiently flexible to cope with the needs of professional workers. It may not have been especially congenial to the development of a healthy culture that permitted professional persons like engineers to flourish. But this not an inquiry into whether the organisation was well- managed. It is important to focus on events and interactions and their effect – and where those events and interactions appear to contribute to the onset of the applicant’s conditions, to ask whether they were properly regarded as reasonable administrative action.
As it happens, SQNLDR McGrath was able to offer a coherent explanation for what might otherwise be regarded as an anomalous reporting arrangement: see exhibit 20 at [2]. He confirmed Ms Nguyen’s position had originally been at the level of APS6. The person in that position had always reported to the senior design engineer who held the rank of squadron leader. When the recruitment campaign failed to attract suitable candidates, it was upgraded to an EL1 position to make it more attractive – but the function, and the reporting lines, remained the same. Mr McGrath made clear in his statement that the arrangement was not intended as a slight to Ms Nguyen. It was an anomaly that presumably could not be fixed without undoing an established management structure. Whether it would have been a good idea to change the reporting arrangements and adopt a different structure is not the question. Mr McGrath’s evidence suggests that action was reasonable. His explanation is reasonable on its face, and nothing the applicant said gave me reason to doubt that it was genuine.
The focus on the reporting arrangements was unlikely to shed much light on the real issues in the case. While the applicant’s psychiatric condition undoubtedly developed gradually, the onset of the conditions – the point at which the symptoms rose to clinical significance that resulted in the need for medical intervention – was in March 2015, with another episode of significant decompensation occurring towards the end of that year. The respondent says administrative action played a crucial role in both episodes.
The mid-cycle review and the onset of the applicant’s condition
While the applicant says the unsatisfactory treatment dated back to 2009, it is necessary to focus on the evidence of her interactions with Mr Philip Snook. Mr Snook became the applicant’s supervisor in 2014. There was friction over the applicant’s working pattern and her commitment to being a ‘team player’. In her statement, she referred to a request she made to Mr Snook for permission to commence work at 9.30am. She explained she had four children who were all at different schools. She said Mr Snook refused the request and appeared unsympathetic to her family situation. She claimed Mr Snook took the opportunity on that occasion to provide a copy of a ‘Supervisor’s Expectations’ agreement that proposed a number of limits on her autonomy. She said the agreement expressly required that she not take technical issues to more senior managers with engineering qualifications. The agreement required that she raise technical questions with Mr Snook first. But Mr Snook was not an engineer. Mr Snook was apparently giving effect to a direction from Mr McGrath – who was an engineer – that Mr McGrath should be the person who had access to the Chief Engineer. The applicant said she declined to accept the terms of the agreement. She said she valued the interaction with the likes of Group Captain (GPCAP) Pearson, the Chief Engineer. In her oral evidence, I formed the impression Ms Nguyen enjoyed the professional camaraderie but also regarded Mr Pearson as a sympathetic ear compared to her lay colleagues in the office.
Mr McGrath provided some context to the direction that Ms Nguyen approach her supervisor and then Mr McGrath with concerns before taking them outside the group – to the Chief Engineer, for example. In his supplementary statement (exhibit 21 at [2]), Mr McGrath said he told the applicant in January 2015:
…there were two reasons for this: one, I might be able to answer the question myself therefore saving the busy Chief Engineer’s time; and two, being part of the decision chain will enable me to learn the nuances of the job quicker.
It is difficult to fault the logic of this rationale – and nothing in the applicant’s evidence caused me to doubt the rationale was genuine. Whether it was wise or represented the best way to manage the applicant is beside the point.
The applicant described a number of stressful interactions with Mr Snook in February and March 2015. Those interactions are important as they occurred around the time the applicant sought medical help for her psychiatric symptoms. Ms Nguyen said Mr Snook confronted her about being late for work on 5 February 2015. When she protested that she arrived on time, Mr Snook responded by asking other staff about her timelines in a way that embarrassed her. She said he continued to exhibit “controlling behaviour and negative attitude”: exhibit 1 at p 20. She participated in a mid-cycle review on 2 March 2015 where she recalls she was accused of not completing mandatory training. She said she had completed the training by the time of the meeting. (In her oral evidence, she clarified that she was supposed to complete the training by the end of February. She did not manage to do that but she did complete it soon after, and in any event, before the meeting with Mr Snook.)
Mr Snook’s email reflecting on the mid-cycle review (incorporating the APS Performance Agreement for Executive Level Employees (PFAD) form) is reproduced in exhibit 1 at pp 321-325. The email acknowledges the applicant was experiencing stress and responded to concerns the applicant had mentioned about inclusion at meetings and about her seating position. The attached PFAD refers in particular to core working hours and attendance. They are unremarkable documents on their face. Ms Nguyen made a complaint about Mr Snook’s behaviour on 5 March 2015. A copy of the letter of complaint addressed to Group Captain Pearson is reproduced in exhibit 1 at pp 49-53. She says Mr Snook was subsequently removed as her supervisor.
On 7 March 2015, the applicant consulted her general practitioner about her psychiatric symptoms. She said she was “trembling and having difficulties in functioning at work”: exhibit 1 at p 20. She claimed she was having difficulty sleeping and felt depressed. She was prescribed anti-depressant medication at that point. Interestingly, she confirmed in her oral evidence that she did not commence taking the medication she was prescribed on that occasion. I note the treating doctor’s notes confirm the consultation on 7 March 2015 was the first occasion on which the applicant’s doctor had noted complaints of workplace stress. The applicant said in cross-examination that she routinely told the doctor of her difficulties at work before March 2015, but he had merely advised her to get another job.
The medical evidence clearly establishes the date of onset of the symptoms was around 2-5 March 2015 when she saw the doctor with complaints of stress. The claim form suggested the symptoms were of recent origin, although I would hesitate before assigning too much weight to what is written in the claim form (exhibit 1 p 16). Even if I accept the applicant had mentioned symptoms of anxiety and stressors in the workplace to her doctor during visits in the past, it would be surprising if the treating doctor did not record them in his notes if they featured prominently in those consultations. The notes suggest the symptoms only became serious enough in their own right to warrant a visit to the doctor in the immediate aftermath of the mid-cycle review. That indicates the mid-cycle review was the specific event that precipitated the onset of the symptoms that were diagnosed as a psychiatric condition, even if other events in the applicant’s life (including her work and personal life) might also have made a contribution over time. (It is almost a truism that one stressful event in isolation is unlikely to cause sudden decompensation in an otherwise healthy person. Nonetheless, at least for the purposes of assessing liability, the law requires me to determine the specific point at which the condition was said to emerge.)
The respondent says the psychiatric condition emerged in March in response to the mid-cycle review, and that the review amounted to reasonable administrative action within the meaning of s 5A of the SRC Act. It is therefore important to explore the circumstances of the mid-cycle review with Mr Snook in more detail.
My analysis of that evidence is complicated by issues with the focus of the cross-examination. As I explained in an exchange with counsel, I apprehended the applicant would succeed in establishing Comcare was liable for her conditions because Comcare had conceded either (or both) of two workplace events made a substantial contribution to the onset of her conditions unless I was satisfied the workplace events in question amounted to reasonable administrative action. In those circumstances, I thought the focus of the evidence should be on those two workplace events – the first being the mid-cycle review which appeared to prompt the onset of the condition. I accept that conduct or events preceding those workplace events might have been relevant but only to the extent the preceding events shed light on the reasonableness of the administrative action in each case. Unfortunately, counsel for the applicant insisted on asking questions of Mr Snook and others about events that occurred in 2014 and early 2015 without clearly establishing how those events might be relevant to what I had to decide. The applicant’s representative wanted to ask questions establishing Mr Snook was a bad manager on the assumption that administrative action taken by a bad manager is, by definition, not reasonable. But that does not inevitably follow: see the exchange recorded in the transcript at p 286.
Mr Snook gave evidence at the hearing by telephone. It would have been preferable for him to give evidence in person given the subject matter of the questions, but that could not be arranged. He provided an outline of his evidence and a supplementary statement (exhibits 18 and 19 respectively). He confirmed in cross-examination that he was not a qualified engineer. He had obtained technical qualifications while he was a member of the RAAF. He explained his expertise lay in project management. As a project manager, he needed to coordinate the input of specialists from different disciplines. Each of those specialists had skills that were required to realise the project’s objectives, including engineers, lawyers, finance people, logistics experts, and so on. He was responsible for bringing the work of the team together: transcript at p 262. He went on to explain each project had a communication strategy governing how members of the team interacted with stakeholders. He explained (transcript at p 268) there were concerns about the applicant engaging with other stakeholders without reference to the project manager because it might make it harder to manage expectations about what the team could deliver. He also said it was important for the purpose of team cohesion that individuals within the team focused their interactions on matters within their expertise. They were discouraged from having contact with outsiders that related to matters they were not authorised to discuss. (These explanations for trying to limit the applicant’s independent communications with outsiders like the Chief Engineer differ in their detail for the rationale offered by Mr McGrath in exhibit 20, but they are of a kind with Mr McGrath’s rationale. It may be that Mr McGrath was a more eloquent witness, at least on paper. In any event, I do not think the inconsistency assists the applicant’s critique of their performance.)
Mr Snook went on to explain the applicant was no longer sitting in offices shared with all of her engineering colleagues after 2014 because a decision was made to organise what were in effect integrated multi-disciplinary project teams. Under that model, she sat with members of her new team which included up to three engineers but other experts as well: transcript at p 270. Ms Nguyen was not singled out when the reorganisation occurred. Mr Snook explained: “…all the engineers were moved out to where the actual work was happening.”
Mr Snook also discussed the wrangling over the applicant’s working hours. He said discussions had commenced with the applicant in late 2014 “regarding her unpredictable attendance patterns and presence at work”: exhibit 18 at [10]. There was a good deal of material in Mr Snook’s statement about the circumstances in which the applicant would be permitted to work from home in early 2015 in the run-up to the mid-cycle review where these issues were mentioned. Mr Ryan, counsel for Ms Nguyen, wanted to ask Mr Snook about the detail of this and other interactions with the applicant. Mr Ryan argued the applicant was subject to a pattern of harassment and isolation. Two things should be said about all that. First, negotiations over attendance and working hours and work-from-home arrangements are almost certainly examples of administrative action. If the applicant was arguing those arrangements led to the onset of conditions, the respondent would be entitled to rely on the exemption in s 5A that is available for conditions arising out of administrative action, provided I was satisfied the action was reasonable and it was carried out in a reasonable way. Second, the evidence clearly establishes the date of onset coincided with the date of the mid-cycle review. The questions about events that occurred earlier are of limited value except to the extent they reflect on the reasonableness of the administrative action.
A similar point could be made in relation to other matters that were the subject of cross-examination. Mr Snook was asked about his role in adjusting a performance and development agreement (PFADS) document that had been signed off by SQNLDR Gonzales before he finished as the applicant’s supervisor in 2014. The applicant said Mr Gonzales had rated her performance as ‘superior’ but that rating had been adjusted by Mr McIntyre and Mr Snook to ‘fully effective’. She said that was suspicious. Mr Snook said he knew nothing about the change: transcript at p 275. The applicant belatedly produced a document provided to her by a contact within the Human Resources office that suggested the computerised records identified Mr Snook as the recommending officer on the report, and Mr McIntyre was the approving officer. Mr Ryan put the contents of the document to Mr Snook. Mr Ryan said it reflected on his credit. Mr Snook was unperturbed by the document. He said the way the information was recorded on the information system did not change the fact that he was not responsible for signing off that document: transcript at 275.
I will have more to say below about the respondent’s general approach to the management of Ms Nguyen as a professional person. For now, it is enough if I make the following observations about Mr Snook’s evidence. First, Mr Snook was able to provide substantive explanations for the reorganisation of the applicant’s workplace that might have caused her to feel isolated, and for the concerns expressed about her communicating with stakeholders outside the team like Mr Pearson. Mr Snook’s attempts to ‘rein in’ Ms Nguyen in the performance agreement did not appear to be part of a campaign against her. Mr McGrath’s evidence tends to corroborate that approach. Second, Mr Snook was able to provide a substantive explanation for his criticism of Ms Nguyen’s performance in the lead up to the mid-cycle review. When asked for his opinion of Ms Nguyen’s performance as a team member, he said he believed she had “issues with respect to mutual responsibilities, which I think needed to be solved. In particular as a team member.” I had no reason to doubt Mr Snook genuinely held that view, and nothing in the cross-examination caused him to resile from that position. Third, Mr Ryan wanted to interrogate the details of Mr Snook’s performance as a manager with a view to establishing a pattern of unreasonable conduct. I do not think that sort of detailed review of a manager’s performance is helpful in the circumstances. The cases make clear the Tribunal should not expect perfection in management. If there are specific incidents or behaviour which reflect on whether the subsequent administrative action is reasonable, questions might legitimately focus on those matters. But there is unlikely to be much profit in questioning every decision simply with a view to asking whether those decisions could have been made differently or better.
I will deal with the legal consequences of all this below. But first I must talk about what happened after the applicant returned to work following the mid-cycle review.
The applicant’s experience at work after the mid-cycle review
The applicant’s experience of the workplace in the months that followed the mid-cycle review worsened, she said: exhibit 1 at p 20. She became aware of a proposal to restructure the team that recommended her position be abolished. She was annoyed she had not been included in the discussions that led to the formulation of the plan. She was upset that Mr McGrath seemed to have a role under the revised structure even though he had not been working in the unit as long as she had, was of lower rank and was not (in her opinion) as well-qualified. She took that to be further evidence that she was on the outer.
Mr McGrath became Ms Nguyen’s supervisor in May 2015 after Mr Snook’s move to another role. Mr McGrath was also an APS6-equivalent officer. Mr McGrath and the applicant had already experienced some tension: in his statement (exhibit 20), Mr McGrath referred to interactions in March and April 2015 where he thought “the volume and quality of the Applicant’s work was lower than I would expect…”: at [3]. Ms Nguyen said Mr McGrath did not understand what was involved in some of the work she was doing. She said she had to explain tendering processes, for example. Thereafter, she said Mr McGrath was impatient with her and pressured her to perform work according to unrealistic timelines. She said she had to work very long hours between April and June 2015 to complete the work. She said her stressful work commitments impacted on her family life. She recalled becoming agitated and isolated from her family. She said (exhibit 1 at p 21) she was not her normal self.
In her oral evidence, the applicant said she chafed under a regime of weekly coaching sessions with Mr McGrath. (The regime of regular meetings began under Mr Snook.) She said Mr McGrath did not adopt a collaborative approach which she thought was appropriate amongst professional colleagues. She contrasted the behaviour of other professional colleagues with the treatment she endured at the hands of managers like Mr McGrath. She did concede in her evidence in chief that Mr McGrath was also an engineer, and thus a professional, but she seemed to regard him as an exception. She said she was reluctant to spend time in the same room with him.
Ms Nguyen repeatedly said in her evidence that she did not get any assistance with her engineering responsibilities. She said she was being overworked in an environment that was unsympathetic to the needs of professionals, and contemptuous of professional qualifications.
While she said she was having a difficult time at work during this period, she recalled being approached by one of the business managers in late May or early June 2015. The manager asked the applicant whether she would be interested in acting as the Deputy Director of the ALSLMU while the incumbent, Wing Commander (WGCDR) Cornall, was on leave in the latter part of the year. Mr Cornall’s rank was the equivalent of an EL1 officer. The applicant agreed to act in the role as of 3 August 2015. It is unclear why she would do so if she was continuing to experience significant psychiatric symptoms, although it is possible she did not have a great deal of insight into her condition. She said the job was made much harder than it needed to be because Mr Cornall declined to give her a proper hand-over before he departed. She had to make do with a quick briefing on the role provided by another officer after she started. She said in her statement that none of the males in the ALSLMU gave her the support she needed to perform in the acting role. She suggested: “It was as if they wanted me to perform poorly in the role”: exhibit 1 at p 21. She said she was not aware of some of the responsibilities attached to the role. Mr McGrath subsequently criticised her for not completing some of those tasks. She thought that was unfair given the circumstances of the handover.
Ms Nguyen referred to a meeting with senior officials in the organisation which took place on 19 August 2015. She attended the meeting without Mr McGrath, Mr Snook and another officer, Mr Boraso. She said the meeting went well and those present had provided positive feedback. She said the positive feedback seemed to upset Mr McGrath and Mr Boraso. The applicant said they complained because they did not have the opportunity to interact with their superiors: exhibit 1 at p 22. Mr McGrath disputes this. He said in his statement (exhibit 21 at [5]) that he did not particularly care about attending the meeting.
The applicant recounted in her statement how Mr McGrath continued to criticise her in meetings in the days that followed. Amongst other things, she said she was taken to task over her approach to dealing with a dispute over an office seating plan. Mr McGrath tells a more benign story in his statement: exhibit 21 at [6]-[7]. Ms Nguyen said Mr McGrath’s behaviour caused her to lose confidence and feel isolated and depressed. She recalled having an unpleasant meeting with Mr McGrath on 2 September 2015 during which he questioned various management decisions and criticised her management style. She said she “felt very low and bullied”. She added she found Mr McGrath’s “attitude was very disrespectful” and that she “felt humiliated”. Mr McGrath insisted he conducted the “mentoring chat” in “a private area and in a caring tone…”: exhibit 21 at [8]. He said the applicant had mentioned to somebody that she was worried about appearing weak in front of the males in the office when she made a decision. Mr McGrath said he backed the applicant’s decision on that occasion because she was right but counselled her gently about the need to respond flexibly: at [8]. She also referred to an incident in which Mr McGrath and Mr Boraso worked to reassign some of her staff without telling her on 3 September 2015. The reassignments were not approved by senior managers but the applicant said she felt the behaviour “undermined my authority and self-confidence”: exhibit 1 at p 22.
The applicant’s evidence suggests things became worse in the middle of September 2015. On 17 September 2015, at around 2:39pm, Mr McGrath emailed the applicant asking for her urgent advice. She was scheduled to finish early that day because she had to pick up her children from school. She was unable to commence work on the advice until the following day. She said she rose early the next day and did the work but she felt she was being placed under unreasonable pressure. She recalled she received another email at 8:04am on 18 September asking for a task to be completed by 8:00am – which was impossible. As it happens, that task required somebody with the correct authority to certify and record the work. Ms Nguyen did not have the authority. Mr McGrath did, but Ms Nguyen said he was nowhere to be found that morning. She said he called her into his office when he reappeared in the middle of the day and angrily demanded to know why the work had not been done. He revealed he had instructed a junior member of the team to record the decision in the system. The applicant and Mr McGrath had an exchange over whether that was appropriate and what steps she had taken to deal with the problem. She said that information just made Mr McGrath angrier. The applicant recalled Mr McGrath said she was incompetent. She said she felt bullied and harassed although she insisted she remained calm and defended her team when they were accused of laziness.
Mr McGrath remembers the circumstances surrounding that meeting differently in his statement: exhibit 21 at [10]. He said it was appropriate for him to delegate the role to the junior staffer in the circumstances, and the staffer was provided with detailed instructions on how he was to discharge the work. He noted the staffer went on to complete the work after the meeting. That is irrelevant for present purposes. The more interesting question is how Mr McGrath behaved. He did not directly address the issue in his statement. But he was questioned about the meeting in detail during cross-examination.
Mr McGrath said he was frustrated by the applicant’s slow progress. He thought she was making a meal of the task she had been delegated, and that she made excuses for the lack of progress in his absence. He said the applicant knew the junior staffer had the authority to do the task which had been delegated to him. Mr McGrath admitted in cross-examination that he let his frustration show at the meeting. He said he used a stern tone. He insisted he did not shout. He denied rising out of his chair. He admitted he banged his hand on the table to cut off the conversation when he decided it was going nowhere.
Ms Nguyen spoke with Mr McGrath again on 21 September 2015. In her statement, she recalled that she told him how distressed she was following the earlier meeting. She said she was fatigued and that she still had a headache. She told him she had been finding work very stressful and that she had collapsed prior to going to bed after she came home following the meeting. But Ms Nguyen said he laughed and treated her comments as a joke. She said she was “devastated” by his response: exhibit 1 at p 23.
The applicant said she renewed her attempt to explain her difficulties to Mr McGrath on 23 September 2015. She said he was initially more conciliatory in his tone. He suggested he would prepare a plan outlining how he would assist her: exhibit 1 at [21]. He followed up with two emails. The first was written on 23 September 2015. The email is reproduced in exhibit 1 at pp 234-235. It recorded some of the details of conversations about work projects. Mr McGrath’s dissatisfaction with the applicant’s progress was apparent, although I would add there did not appear to be anything improper on the face of the correspondence. The second email included the plan referred to earlier. It was sent to Ms Nguyen on 25 September 2015. A copy of that email is reproduced in exhibit 1 at pp 236-237. The note began by acknowledging the applicant’s complaints of stress. Mr McGrath wrote:
You made reference Wednesday night to feeling stressed and I note that this is not the first time of late. I am keen as your supervisor to work with you to ensure that such stress levels remain tolerable.
The email then referred to a number of instances where the applicant failed to meet expectations. It was obvious those matters had already been the subject of detailed discussion, although it is unclear from the applicant’s evidence whether she had absorbed the detail of the concerns. Ms Nguyen said in her statement that the emails suggested she would be subject to increasing oversight and control. She said she objected to what she characterised as “extreme micromanagement” that added to her stress levels.
Mr McGrath said in cross-examination that he assumed she was struggling to cope with her higher duties. In re-examination, he said the follow-up conversation with the applicant after the meeting of 18 September 2015 had gone well. He said he wanted to apologise and was concerned that he had not dealt with her well. He added – perhaps surprisingly, if Ms Nguyen’s account of their interaction is to be accepted – that he thought he had a good working relationship with her. Interestingly, he also said in re-examination that he decided to refer his concerns over Ms Nguyen’s performance to Wing Commander Barton so he could conduct an independent review. Mr McGrath explained that he had power to remove the applicant’s engineering authorisation but he did not want to take that step himself.
Mr McGrath communicated his concerns to Mr Barton in an email dated 2 October 2015. A copy of that email is reproduced in exhibit 1 at p 229.
Mr McGrath could and should have done a better job handling his meeting with the applicant on 18 September 2015. He accepted he was cross with the applicant and that he banged his hand on a table to cut off the discussion – although he denies the applicant’s claim that he rose from his chair and shouted. As between the two witnesses, I am inclined to accept Mr McGrath’s account of what occurred at the meeting. If Mr McGrath were trying to suppress the truth of what occurred in the meeting, he would have denied banging his hand on the table – something he now clearly understands is problematic. Ms Nguyen’s evidence was less satisfactory. In cross-examination, she made a gratuitous reference to Mr McGrath’s upbringing that suggested her evidence was infected by personal dislike.
A supervisor is not necessarily behaving unreasonably if he or she becomes cross and displays frustration in the course of an interaction with an employee. Supervisors are not expected to exhibit endless patience, nor are they required to conduct themselves with perfect poise. Much will depend on the circumstances. It may be that banging a hand on a table to cut off conversation was a step over the line. But the focus on the reasonableness of Mr McGrath’s behaviour presupposes the meeting on 18 September 2015 in particular was administrative action for the purposes of the SRC Act. I doubt it was.
It therefore becomes important to assess the state of Ms Nguyen’s mental health up to the end of September 2015 – that is, before the interaction with Wing Commander Barton. If the evidence establishes Ms Nguyen’s condition had significantly worsened by that point as a consequence of her experiences in the workplace after the initial consultation in March 2015, Comcare may be liable for that deterioration, even if the first onset of the condition was the result of reasonable administrative action.
Ms Nguyen’s statement said she was having difficulty sleeping and losing interest in activities she enjoyed throughout the middle of the year leading up to her clash with Mr McGrath. She said she was “irritable, easily angered and frustrated” at home, and she was stressed, isolated and alone at work. Her husband, Mr Nam Tran, who also gave evidence at the hearing, suggested the applicant’s condition actually improved in the months following March 2015 when Mr Snook left. She was sleeping better and feeling happier. But her husband said she regressed some time later after reporting her supervisor was overloading her and imposing unrealistic time frames. Mr Nam Tran suggested the applicant was very upset following the meeting on 18 September 2015. He said she became more anxious once the referral was made to Mr Barton. The delay associated with that investigation was especially trying for Ms Nguyen, her husband explained. He suggested her emotional state deteriorated on a daily basis between October and December 2015. He said she complained of headaches throughout that period.
Mr Nam Tran’s evidence confirms the applicant was experiencing symptoms of depression from the middle of the year after initially appearing to recover following the crisis in March 2015. He said in his evidence in chief that she was distressed by the interaction with Mr McGrath on 18 September 2015. But he was clear the real damage occurred in October-December 2015 in connection with Mr Barton’s investigation. That period ended when Mr Nam Tran recalled the applicant coming home in December in the most distressed state he had ever seen her.
The medical evidence is less clear-cut. I note the applicant’s evidence that she did not immediately commence taking the medication she was prescribed in March 2015. It is possible the symptoms she reported thereafter (and which her husband also described) were consistent with the ordinary course of the condition, especially if it was not being effectively treated, rather than a product of fresh aggravation. Mr Woulffe, for Comcare, pointed out the treating doctor’s notes do not record the applicant complaining of workplace stress again prior to 22 October 2015. That evidence, and the fact the applicant felt able to take on higher duties during this period, suggests the applicant did not experience a clinical worsening of her symptoms until comparatively late in the day. There is certainly evidence she complained of stress: her husband says as much in his evidence, and Mr McGrath’s email in September 2015 acknowledges the applicant complained of experiencing stress. But it seems her condition had improved after March 2015, even if that improvement dissipated over the course of the next few months. The interaction with Mr McGrath on 18 September 2015 was certainly distressing, but the evidence suggests it was the interaction with Mr Barton and the decision to downgrade her engineering authority that brought on clinically significant decompensation requiring medical intervention. I will deal with that incident next.
The interaction with Wing Commander Barton and the subsequent worsening of symptoms
The applicant said Wing Commander Barton, the Chief Engineer of MPSPO, told her on 12 October 2015 that he would investigate Mr McGrath’s allegations that related to her fitness to hold the engineering authority. The allegations had been passed on in an email dated 2 October 2015. A copy of the email is reproduced in exhibit 1 at p 229. Ms Nguyen recalled Mr Barton said he would inform her of the outcome of his inquiry within seven days.
The investigation took much longer than seven days. Mr Barton did not present his findings until 15 December 2015. The applicant said she experienced significant distress during this period. Her husband confirmed that account. She saw her doctor on 22 October 2015 and took several weeks off work because of her worsening depression.
Mr Barton explained why he decided to proceed with a formal investigation in the course of cross-examination. He said it was an unusual situation: one senior engineer had raised questions about the competence of another. He made clear in his outline of evidence (exhibit 22 at [8]) that the stakes were high: the organisation’s focus on safety meant the engineers must be competent. Incompetent engineers could make mistakes that cost lives. He added it was appropriate to undertake a formal process because of the seniority and experience of Mr McGrath and Ms Nguyen. The fact they had not been able to resolve the issues suggested the whole question needed to be considered in a more formal way. He also said he thought a formal enquiry was the fairest course.
I am satisfied Mr Barton carefully considered whether it was appropriate to commence a more formal enquiry. While it is possible another manager might have dealt with the matter in a different way occasioning less stress, his decision to commence the process was not unreasonable. Questions had been raised over the applicant’s performance and competence that needed to be addressed. I accept he was conscious of the importance of the issues and that he had sound reasons for commencing the process.
Mr Barton made clear in cross-examination that his investigation focused on the applicant’s qualities as a professional engineer, not on her qualities as a manager or her efficiency as an employee. He commenced by asking the applicant for her response to a number of matters in his email of 12 October 2015. The applicant responded promptly by email on 13 October 2015. Her email is reproduced in exhibit 1 at pp 242-243. Mr Barton sent a further email on 16 October 2015 asking the applicant to respond in particular to one of the matters raised in his earlier note of 12 October 2015. Her response on 20 October 2015 (exhibit 1 at pp 254-255) and the earlier response of 13 October 2015 exhibited a defensive tone and referred to management issues.
Mr Barton said the enquiry took longer than anticipated because a number of matters came to light during the process. One of those matters was detected in what Mr Barton described as an internal audit of engineering advice provided to other parts of the organisation. SQNLDR Washusen was involved in that review. Mr Washusen also reported his decision not to issue an engineering authority to a junior employee who did not feel ready to accept the extra responsibility. Mr Washusen was critical of the applicant for supporting the grant of engineering authority to the junior employee in those circumstances. While Mr Barton had a face-to-face meeting with the applicant to discuss aspects of his enquiry, it seems he did not raise each and every allegation with her in detail. It seems the applicant might not have had the opportunity to address Mr Washusen’s contribution, for example.
There may have been procedural shortcomings in the enquiry. Mr Barton said the enquiry took longer than anticipated because extra questions kept arising. But as he obtained more evidence, he said it became clear safety was an issue. In cross-examination, he explained it became necessary to act quickly in the end and he called the applicant in for a meeting on 15 December 2015.
There were some questions about the way in which that meeting was called, and whether the applicant was permitted to have a support person of her choice. Mr Barton said in cross-examination he was reluctant to delay the meeting because the decision to cancel the applicant’s engineering authority had to be communicated as soon as possible. He said he asked the applicant twice at the commencement of the meeting whether she wanted a support person. He said she confirmed she did not and agreed to proceed. (The applicant said in cross-examination that she did want a support person but only if that person were another engineer. It seems that was not communicated accurately to Mr Barton.)
Mr Barton agreed he did not give advance notice of the subject of the meeting. He said the urgency of the situation in the end meant it just had to be done. He insisted he tried to do the job humanely; he said he was conscious of the significance of what he was doing. He said it was appropriate to cancel the engineering authority rather than provide additional training and support while she retained the authority. He said the question before him was a binary one: the applicant was either competent to hold an authority or she was not. If, in his view, she was not, the only choice in the short term was to cancel the authority and then look to remedial training because of overriding safety concerns. Mr Barton’s evidence on this point effectively answered the complaint Ms Nguyen made at the end of her cross-examination when she said her engineering authority should not have been cancelled, even if she had been found wanting in some respect. She said she should have been subject to a more extensive performance management process. Mr Barton said the need for competent engineering came first.
I found Mr Barton to be a compelling witness. He was obviously anguished over the responsibility of making a decision about the applicant’s engineering authority. The fact his enquiry might have been imperfect in a number of respects does not change the fact he had good reasons for commencing the investigation, and that he attempted to conduct a thorough investigation. He explained why the initial estimate of seven days turned out to be unrealistic. He also explained he had good reasons for acting hastily at the end – even if doing so meant he failed to provide Ms Nguyen an opportunity to respond in detail to all of the evidence. The need for prompt action also explained the absence of extensive notice. I am not satisfied the applicant was denied the opportunity to have a support person.
The applicant left work on 15 December 2015 following the meeting and reported to her doctor. It appears she experienced significant decompensation at that point. As she explained in her statement (exhibit 1 at pp 24-25):
I suffered 63 days of anguish and nervous tension. I was unable to sleep well. Anxiety gradually crept up on me. I was more stressed and depressed every day, eventually I was not able to function like I used to. On several occasions, I requested more support to deal with the insufficient resources of members with Engineering authority at ALSLMU. WGCDR Barton was aware of my heavy workload, as well as the bullying and harassment that I endured by my supervisors. The above issues were ignored and consequently I felt devastated by the decision to remove my Engineering Authority, as I dedicated the previous 20 years of service to the Defence Industry as an Engineer. I felt so ashamed in facing my subordinates and the Engineers that I had mentored over the years. I could not cope with this constant bullying and harassment any longer. The situation was extremely stressful and I felt very depressed. WGCDR Barton ignored what I reported and did not provide me the support I required.
Mr Barton’s report setting out his formal findings is dated 16 December 2015. It is reproduced in exhibit 1 at pp 220.
Is Comcare liable for the applicant’s condition?
I have already explained Comcare concedes the applicant’s work made a significant contribution to her condition. Comcare will be liable under s 14 of the SRC Act unless the exemption in s 5A for reasonable administrative action is available.
I have already found the onset of the applicant’s condition was connected with her mid-cycle review in March 2015. While I accept the applicant may have been experiencing some symptoms of depression before that point, the symptoms clearly became clinically significant in response to the mid-cycle review. The mid-cycle review was administrative action within the meaning of s 5A. A performance review of that kind was clearly an appraisal of the employee’s performance within the meaning of s 5A(2)(a). It was, in any event, conduct in respect of the applicant’s employment as opposed to conduct occurring in the course of or pursuant to the employment relationship: see Commonwealth Bank of Australia Ltd v Reeve [2012] FCAFC 21 at [60] per Rares and Tracey JJ. (I would add that the earlier wrangling over the applicant’s working hours and her request for flexible hours would relate to a benefit obtained in connection with her employment – and thus also within the definition of administrative action under s 5A(2)(f).)
The question, then, is whether that administrative action was reasonable. That requires an evaluation of (a) the motivation behind the action (was the action reasonable in conception?) and (b) the conduct of the action (was it reasonable in execution?).
The standard of reasonableness is not a standard of perfection. As it happens, Ms Nguyen was not managed perfectly. She certainly was not handled with great sensitivity, especially once it became clear she was stressed. There may also be something to her complaint that the organisation did not accommodate her professional expertise and the need of professionals to have autonomy and associate with other professionals in a collegial way. She believed her reporting lines (Mr Snook was a specialist manager rather than a professional who understood the applicant’s work) were a problem. She also took exception to the requirement that she focus on the work of her multi-disciplinary team instead of working in an environment populated by fellow professionals. While managers undoubtedly had reasons for arranging things that way, she was describing a common complaint of professional people who struggle with supervision by managers who may prefer to break down any role into a series of generic tasks that can be separately managed, adjusted and coordinated. Professionals cannot be managed like process workers because professional work, by its nature, involves more than the exercise of generic skills. The professional’s skills cannot be isolated from the body of knowledge and the professional culture which informs the exercise of those skills. That is one reason why professional workplaces – like law firms, hospitals, and universities, even courts and tribunals – have traditionally been managed differently than, say, the military or a factory or a fast-food outlet.
The standard of reasonableness means I am not concerned whether the employer is managing the applicant wisely or especially sympathetically, or if the employer’s human resource strategy and management culture permits it to properly accommodate the needs of professionals or any other group. I am not considering whether there was a healthy professional culture in which professionals were nurtured. The question is whether the particular administrative action – in this case, the mid-cycle review which focused on the applicant’s hours of work – was reasonable administrative action.
It will be apparent from my discussion of Mr Snook’s evidence that I accept he had good reason to address the issue of working hours and communications with stakeholders in the mid-cycle review. (The mid-cycle review was a scheduled event. It is not as if Mr Snook arbitrarily decided to commence a review.) The issue of working hours was clearly a live one: the applicant and Mr Snook had been at loggerheads on that for some time before the review. The applicant took particular exception to Mr Snook’s attempt to constrain her communications with other engineers and managers, but I accept he had a sound reason for doing so in the review process – a reason he explained in his evidence. While one might question the wisdom of such an approach, that does not make the action unreasonable. There was also nothing in his written communications with the applicant to suggest he was behaving unreasonably in his execution of the review. Her other complaints about the meeting with Mr Snook – including the misunderstanding about whether she had completed mandatory training – do not change my assessment. I was also not satisfied Mr Snook had done anything underhand in relation to a rating that was originally assigned by Mr Gonzales. While there was some confusion about the rating, I was not persuaded Mr Snook had done anything inappropriate or which suggested animus towards the applicant.
I am satisfied the onset of the applicant’s condition in March 2015 was in connection with reasonable administrative action.
I have also found the applicant experienced a temporary improvement in her symptoms after she returned to work following the March 2015 incident. It may be one explanation for the improvement was the departure of Mr Snook. She clearly blamed him for her difficulties. I have also found the symptoms returned during the course of 2015 – perhaps because the applicant did not commence taking the medication she had been prescribed in March. I accept she had a distressing encounter in late September 2015 in the form of a difficult meeting with Mr McGrath, but it is not clear her condition was aggravated at that point. Her treating doctor did not record further complaints about workplace stress at the time. But even if there was a temporary (if unreported) worsening of symptoms in connection with that meeting, the effect was clearly overtaken by the stressful impact of Mr Barton’s investigation. The medical evidence and the evidence from the applicant’s husband confirms it was that ongoing interaction which prompted a request for medical attention in October and which brought about the serious decompensation necessitating medical intervention in December 2015.
It seems to me Mr Barton’s investigation (or enquiry) was administrative action in the relevant sense. While he was careful to explain in his evidence that his enquiry was not focused on the applicant’s efficiency as an employee, it did go to the very heart of the employment relationship. The applicant’s entitlement to exercise engineering authority was a structural feature of the applicant’s job. Review of her suitability to exercise that authority was akin to an appraisal or suspension or disciplinary proceeding. It might also be regarded as a failure to retain a benefit.
The question, then, is whether the administrative action – commencing a formal enquiry that concluded by removing the applicant’s engineering authority – was reasonable.
Mr Barton explained why it was appropriate to commence a formal investigation in preference to any other course. He said it was a delicate and serious manner when a senior engineer criticised the performance of a colleague. Mr Barton had no reason to look askance at the referral from Mr McGrath when it was made. I was not persuaded the referral was prompted by bias or was otherwise inappropriate. Mr Barton also said it was important to be procedurally fair given what was at stake. The applicant was affronted by the fact of the investigation, but I do not see how the decision to conduct an investigation was unreasonable.
The conduct of the investigation might be criticised on several grounds. It took longer than anticipated. Ms Nguyen said she was told it would be done in seven days; Mr Barton acknowledged it took longer than expected because additional information came to light in the course of the enquiry. I am satisfied from his explanation the delay was not unreasonable in and of itself. It would certainly be better if he had not promised a short turnaround, and he should have done a better job of keeping the applicant informed as he went along. But I am not persuaded those shortcomings suggest the enquiry was conducted in a way that was unreasonable, even if it was less than ideal. The fact Mr Barton was reluctant to entertain Ms Nguyen’s wider complaints about management was not unreasonable: he explained he was trying to remain focused on the question at hand. The fact the enquiry concluded hurriedly with adverse findings against the applicant even though the applicant did not have an extensive opportunity to respond is also problematic, but I accept Mr Barton’s evidence that the evidence pointed to shortcomings that had to be addressed as a matter of urgency. In all the circumstances, his professed concern for aviation safety took precedence over questions of procedural fairness. That balancing process also explains why Mr Barton chose to cancel the engineering authority with immediate effect rather than engaging in a process of performance management.
I accept Mr Barton’s account of the meeting he had with the applicant on 15 December 2015. The short notice of the meeting was not unreasonable in the circumstances. I also accept his evidence that he asked the applicant whether she wanted a support person (and that he knew it was important to do so given he was conscious the decision was likely to be badly received) but she indicated she did not require assistance (albeit she was apparently saying she did not require assistance from anyone who was available).
I am not persuaded Mr Barton’s review was unreasonable in conception or execution. I accept his review amounted to reasonable administrative action. The effect of that action on the applicant’s health appeared to be corrosive (while the review continued) and catastrophic (once the findings were communicated to the applicant). The effect of that action clearly aggravated the applicant’s existing symptoms, such as they were, to a significant degree. I am satisfied the exclusion in s 5A of the SRC Act applies.
CONCLUSION
The reviewable decision is affirmed.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe
............................[sgd].........................................
Associate
Dated: 6 June 2018
Dates of hearing: 5 June 2017
6 June 2017
7 June 2017
8 June 2017
9 June 2017Counsel for the Applicant:
Mr C Ryan
Solicitors for the Applicant:
Lander & Co Solicitors
Counsel for the Respondent:
Mr PG Woulfe
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