O'Connell and Comcare (Compensation)

O'Connell and Comcare (Compensation) [2017] AATA 178 (14 February 2017)
Division:GENERAL DIVISION
File Numbers: 2015/1341 and 2015/1762
Re:Kerrie O'Connell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President K Bean
Senior Member S Raymond
Date:14 February 2017
Place:Adelaide

1. In Application 2015/1341, the Tribunal sets aside the decision under review and in substitution for that decision, decides that pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), the respondent is liable to pay compensation to Ms O’Connell for an “adjustment disorder”, with a date of injury of 7 February 2013.
2. In Application 2015/1762, the Tribunal sets aside the decision under review and in substitution for that decision, decides that, pursuant to s 14 of the SRC Act, the respondent is liable to pay compensation to Ms O’Connell for an “adjustment disorder”, with a date of injury of 21 January 2014.
………[ Sgd] ………………………..
Deputy President K Bean
CATCHWORDS
COMPENSATION – Commonwealth employee – Significant contribution from employment to adjustment disorders conceded – Whether adjustment disorders resulted from reasonable administrative action, taken in a reasonable manner – Administrative actions not reasonable – Whether evidence also supports liability for “elevated stress” – Decisions under review set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14, 54, 69, 72
Public Service Regulations 1999, Reg 3.2
CASES
Lang and Comcare (2007) 94 ALD 141
Aunela and Telstra Corporation Limited (2008) 102 ALD 219
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
Deputy President K Bean
Senior Member S Raymond
14 February 2017

The applicant, Ms O’Connell, is employed by the Department of Human Services as a Customer Service Officer and has worked in Centrelink since May 2006. She is regarded as effective at her job and has on occasions acted in a higher position as a scheduler.
Prior to 2013, Ms O’Connell had experienced a number of personal and health events giving rise to her taking unplanned leave. In February 2013, some matters were raised with Ms O’Connell’s supervisor by fellow employees. These matters related to Ms O’Connell’s manner in dealing with Centrelink customers on the telephone. This led to a meeting being held on 7 February 2013, between Ms O’Connell and her supervisor, Mr Rugari, which caused Ms O’Connell significant distress and resulted in her being absent from work for a number of days following the meeting.
Ms O’Connell subsequently continued to have regular absences from work, resulting in various actions by her employer which we will describe and explain further below. Her continuing absences from work together with assessments and decisions made by her employer in turn ultimately led to her being referred for a Fitness for Duty (FFD) Assessment in January 2014. This referral, and the circumstances surrounding it, also caused Ms O’Connell significant distress, as we will go on to explain.
About six months later, on 8 July 2014, Ms O’Connell lodged a claim for compensation for ‘severe anxiety’ and ‘stress’. In that claim, she attributed her condition to the meeting which occurred on 7 February 2013. She described the ‘action, exposure or event’ which caused the injury as the “allegations of complaints from numerous team members, my peers regarding work performance.” She described what actually injured her as “Harassment & Bullying tactics from management”.[1]
[1] Exhibit R1, T4.
As a result of receiving a medical report of 18 September 2014[2] from Dr Begg, a psychiatrist[3], it appears that the respondent “split” Ms O’Connell’s compensation claim and treated the symptoms she experienced following the January 2014 incident as an aggravation of the ailment allegedly already suffered by Ms O’Connell following the February 2013 meeting. Two separate decisions were accordingly made by the respondent on 1 October 2014[4] and 24 November 2014.[5] Each of those primary decisions determined that Ms O’Connell was not entitled to compensation, and each of those decisions was subsequently affirmed on reconsideration.
[2]     Exhibit R1, T25/204.
[3]     Dr Jules Begg, psychiatrist, saw the applicant at the request of Comcare and provided a report dated 18 September 2014. The applicant was reviewed by Dr Begg on 2 March 2016. In his subsequent report dated 4 March 2016, he revised his diagnosis of the January 2014 condition to an adjustment disorder rather than a panic disorder (Exhibit R2, ST30/451).
[4]     Exhibit R1, T37/277.
[5]     Exhibit R3, T36/264.
On 23 March 2015, Ms O’Connell applied to the Tribunal for review of the reconsideration decision of 11 February 2015[6] denying liability for her original claim, giving rise to Application 2015/1341. On 15 April 2015, she applied for review of the reconsideration decision of 17 March 2015[7] denying liability for an “anxiety state” sustained on 22 January 2014, and giving rise to application 2015/1762.
[6] Ibid, T59/348.
[7] Exhibit 3, T1/13.
BACKGROUND FACTS
As we have indicated, there are two events identified as giving rise to the matters before the Tribunal.
The first is the meeting on 7 February 2013 (the 2013 incident). Following that incident, Ms O’Connell was absent from work on 8, 11 and 12 February 2013. She subsequently returned to work, but thereafter there were further periods of absence.[8]
[8] Exhibit 1, T46/317. The respondent asserts that Ms O’Connell continued to access a significant amount of leave and accessed 358 hours of personal leave, 219 hours of recreation leave (some used in lieu of sick leave) and three days of flex leave throughout 2013 (see Respondent’s Statement of Issues, Facts and Contentions dated 7 July 2016, [4.38].)
The second event (the 2014 incident) related to a notice, served on Ms O’Connell on 13 January 2014 by her employer, advising her that she must attend for a FFD Assessment with Dr Sara Souter, Occupational Physician. Ms O’Connell sought a review of this direction and on 28 January 2014 the decision to require her attendance at a FFD Assessment was affirmed. Dr Souter provided a report dated 10 February 2014[9] in which she recommended assessment by a psychiatrist.
[9] Exhibit R3, T6.
THE LEGISLATION
The relevant law is contained in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Section 14 of the Act provides relevantly that Comcare is liable to pay compensation in respect of an “injury” if the injury results in incapacity or impairment.
In s 5A, an “injury” is defined to include a “disease”, and “disease” is defined in s 5B of the SRC Act as:
·“an ailment suffered by an employee” or “an aggravation of such an ailment”;
·“that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or licensee”.
However, the definition of “injury” in s 5A of the SRC Act does not include a disease, injury or aggravation suffered as “a result of reasonable administrative action, taken in a reasonable manner, in respect of the employee’s employment”.
Subsection 5A(2) of the SRC Act refers to reasonable administrative action and provides a list of matters included in the concept. It is not an exhaustive list. The list is as follows:
(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.
JURISDICTION
As we have indicated, the Tribunal has before it applications for review of each of two decisions of Comcare, one dated 11 February 2015 and the second dated 17 March 2015. Each of the decisions are reconsiderations of determinations made by a review officer of Comcare, on 1 October 2014 and 24 November 2014 respectively. Each decision relates to ‘threshold’ liability for a condition arising on a different date. However, as we have noted above, Ms O’Connell only lodged one claim for compensation, being that lodged on 8 July 2014 in which she referred to the February 2013 incident.
As we raised with the parties, an issue arises in these circumstances as to whether we have jurisdiction to consider claims arising from both incidents.
We note that s 54 of the SRC Act requires a written claim for compensation to be made in the approved form, although strict compliance with the approved form is not required and substantial compliance is sufficient. We also note that the SRC Act requires Comcare to be guided by “equity, good conscience and the substantial merits of the case, without regard to technicalities” in making determinations in relation to claims made (ss 69(a) and 72 of the SRC Act).
Consistent with that requirement, we accept that the respondent has appropriately taken the step of treating Ms O’Connell’s claim for compensation as one in relation to the effects of the second incident in January 2014, as well as the first incident in February 2013. We also note the cases of Lang[10] and Aunela[11], which lend support to the proposition that correspondence between the parties and medical reports provided to the respondent can constitute written notice of, and a claim for, compensation. In the case of Aunela there was a psychiatric injury separate from a physical injury. In this case the ailment is essentially the same, with the second potentially being an aggravation or recurrence of the first.
[10] Lang and Comcare (2007) 94 ALD 141.
[11] Aunela and Telstra Corporation Limited (2008) 102 ALD 219.
However, we also observe that the situation is further complicated by the fact that Ms O’Connell takes issue with multiple actions taken by her employer in 2013 and 2014, including the issue of directions and other actions between the two incidents, and post the 2014 incident. There is also some evidence before us of Ms O’Connell suffering increased stress/symptomatology following some of these actions.
Ms O’Connell has nominated the initiating incident in 2013 in her written claim for compensation and the respondent has treated the one claim for compensation made by Ms O’Connell, together with subsequent correspondence, as a claim for compensation in relation to the effects of the 2014 incident, in addition to the originally nominated 2013 incident. However, there has been no consideration of incidents other than the two incidents which generated the two reviewable decisions.
In a case such as this, where there are multiple issues and events raised by the claimant, potentially giving rise to ailments, we consider it to be potentially problematic for the respondent to identify only one other incident.
In the circumstances which have arisen however, and having regard to the terms of the reviewable reconsideration decisions, we consider our jurisdiction to be limited to the claims which have been the subject of determination and reconsideration, namely claims for a psychological injury resulting from the February 2013 incident, and an aggravation or recurrence of that injury resulting from the January 2014 incident.[12] In the absence of clearly articulated claims or determination or reconsideration decisions addressing other injuries potentially sustained between February 2013 and January 2014, or subsequently, we do not consider we have jurisdiction with respect to those injuries.
[12] See Abrahams v Comcare (2006) 93 ALD 147 and Comcare v Muir (2016) 150 ALD 321.
ISSUES
The following matters are conceded by the respondent:
·Ms O’Connell has suffered from a disease, namely an “ailment” as defined in the SRC Act, and diagnosed as an adjustment disorder following the meeting of 7 February 2013 (the 2013 adjustment disorder);
·Ms O’Connell’s employment contributed, to a significant degree, to the contraction of the 2013 adjustment disorder;
·Ms O’Connell has suffered from a disease, namely an “ailment” as defined within the SRC Act, and diagnosed as a further adjustment disorder after she was notified of the arranged FFD Assessment in January 2014 (the 2014 adjustment disorder); and
·Her employment contributed, to a significant degree, to the contraction of the 2014 adjustment disorder.
The main issue which falls for determination, in relation to each of the two incidents, is whether each amounted to reasonable administrative action taken in a reasonable manner, so as to exclude compensation liability.
In addition, on our analysis, an issue arises on the evidence as to the correct characterisation of Ms O’Connell’s ailments. As this will only arise in the event we find s 5A does not operate so as to exclude compensation liability, we will return to it later in our Reasons.
CONSIDERATION
The 2013 Incident
The details of the incident
The evidence is that Ms O’Connell had worked in a team supervised by Mr Joe Rugari since March 2011. He was her team leader and supervisor. She had spent time working in a different team acting in a higher level position as a scheduler during the period prior to January 2013. She returned to Mr Rugari’s team on 2 January 2013.
On Thursday, 7 February 2013, Ms O’Connell was asked by Mr Rugari to have a meeting with him. This meeting took place in a room and not at Ms O’Connell’s workstation. No other person was present at the meeting. Mr Rugari’s recollection of what was said at the meeting was limited. Ms O’Connell was able to recall in detail what transpired at the meeting. There were no notes produced of the discussions which took place at the meeting.
There are three sources of information before the Tribunal from Mr Rugari about the meeting on 7 February 2013 and the matters which led to it. Those sources of information are:
·A statement of Mr Rugari submitted with a letter to Comcare dated 24 September 2014;[13]
·A statement of Mr Rugari dated 7 July 2016;[14] and
·Oral evidence of Mr Rugari given at the hearing.
[13] Exhibit R3, T26/187.
[14] Exhibit R4.
In Mr Rugari’s first written statement there is reference to a number of staff members (in the region of four-five staff members) raising issues with Mr Rugari over a two-three week period. The statement records that they thought Ms O’Connell’s phone manner was inappropriate. It records that they thought she was rude to her customers by raising her voice and speaking in a very strong tone to customers. The statement refers to one particular call which was drawn to Mr Rugari’s attention. He listened to the call but determined that her handling of a challenging situation was satisfactory.
The later statement refers to three or four team members speaking to Mr Rugari about Ms O’Connell. This appeared to relate to one call which they had all overheard. The statement records that according to them she was speaking quite loudly and using language that was inappropriate. Mr Rugari indicated that he had not heard this call.
In oral evidence, under questioning about the backdrop to the meeting, Mr Rugari indicated that he could not recall exactly how many people had raised issues with him and whether he was approached about them or whether issues had been raised by staff members in the course of other discussions with him. He was asked to name employees who raised issues with him about Ms O’Connell and ultimately could name two. He could not now recall the other persons. He said he had formed the view that he would not await the next coaching session (held approximately monthly) with Ms O’Connell but would raise the matters with her informally.
There are some discrepancies between Mr Rugari’s written statements and his oral evidence as to what precisely prompted the other employees to raise the issues with him and whether it was one phone call involving Ms O’Connell or more than one call. His statement suggests that it was one phone call. Other evidence suggests that different people brought matters to him over a period of time which may have been within a week. He could not recall over what period of time the approaches were made to him.
In his oral evidence, Mr Rugari indicated that the concerns raised with him related to the manner in which Ms O’Connell was speaking to customers. He could not recall any specific details but indicated the concerns related to use of language and loudness. He said he checked with another staff member before determining to raise the issue with her. He gave evidence that his reason for raising it with Ms O’Connell was to bring it to her attention and for her to be mindful of it.
There are numerous emails and written documents in which Ms O’Connell outlines her recollection of what occurred in the 2013 incident. She has been consistent in her recollection of what occurred at the meeting. The following recitation appears in a written statement sent in an email to the respondent on 25 September 2014:
7/2/13 Thursday approx 2.30pm Joe pulled me off phones for informal chat. After asking how I was going, advised me complaints had been made that I was loud, rude, spoke over customers, said inappropriate things. Stunned, I asked were they from customers. Shaking his head no, I asked team leaders or other management, again no. Feeling quite confused at this point as he wasnt offering any further information, I asked was it my peers, staff in my team. Nodded yes. I asked was it 1 team mate with these complaints or a few. He responded numerous. Wasnt sure what I was supposed to do with this information could he provide examples or what it was I said and when. He couldnt but suggested I have my calls recorded. None of this made sense. Randomly pulled off phones. Staff cant hear my customers and should be busy with their own work. I refused his suggestion as without context, details this wasnt constructive feedback or discussion. I advised that loud doesnt equate to rude, at times talking over a customer may be required for call control and staff dont know the rapport I’ve built with my customers, against APS conduct to place values on each other as well as customers. He then suggested that he sametime me or tap my shoulder if I was getting loud. I responded that I would consider that harassment & that this whole conversation was inappropriate and out of line. Suggested that if staff have a problem with my service style affecting their concentration they should discuss with me as we are adults, team mates working in what I thought to be a transparent environment. I will always try to be mindful of affecting others however this is who I am and how I work, to be anything different is a strain on me. Pointing out that as team leader this something perhaps he should have considered when planning seating arrangements and sitting me at edge of team with quietest member. Next closest also quiet all young lads I really cldnt relate to having very different working styles and age difference. I mentored half the team including them through probation. None had offered assistance or support. I felt my team leader had not facilitated my return to the role and team well and felt unsupported. Now this. Was distressed, upset to point of crying didnt understand that they had time to listen to my calls, unable to here(sic) my customer, sometimes placed on hold whilst updating file, would go behind my back to complain and hadnt even discussed with me or offered assistance. Didnt make sense and had no idea how I was going to go out their(sic) and face these people not knowing who or how many. How could I trust any of them now or feel part of the team. Felt alienated and humiliated. packed up my things to flex off. Put my sunnies on so no one could see me crying and left. [15]
[15] Exhibit R3,T25/179-180.

Consistently with this account, in her oral evidence, Ms O’Connell said that no context was provided to the complaints. She said that she asked for details and asked where the complaints had emanated from; management, customers or fellow employees. She said that she had to ask about each one and Mr Rugari responded by shaking his head when she made the first two suggestions but nodded his head in affirmation that it was fellow staff members.
The exact words which were used by Mr Rugari are not entirely clear. However, Ms O’Connell’s written accounts and oral evidence are broadly consistent as to the salient facts.
There was no clear outcome of the meeting because Ms O’Connell became upset. It is apparent there was some discussion about her calls being recorded. Mr Rugari indicated that he might have made that suggestion because in his experience it is good for people to listen to their own calls. Mr Rugari frankly acknowledged that in hindsight he might have handled the matter differently. He might have listened to her calls for himself or asked if the individuals providing the feedback were prepared to have their names released to her. He said that anonymous feedback is not something that happens often. He conceded that it was a challenging situation and there was a need to balance a range of considerations.
What followed after the meeting
Ms O’Connell’s Smart Centre Coaching Record indicates that on or about 19 February 2013 there was a further discussion between herself and Mr Rugari about the 7 February meeting.[16] It reads in part:
Thanks for your feedback on the way you handle your calls Kerrie. This was a valuable discussion.
I appreciate that recent events have caused concern and will look forward to working with you and to take on board suggestions that you have made.
It then makes reference to arranging a session with another person (in respect of Ms O’Connell) and then says, “This will give me a better indication of how you are going with your calls.”
[16] Exhibit A2. The Smart Centre Coaching Record for Kerrie O’Connell is dated 19 February 2013 (but it was agreed that the discussion must have occurred on a different day as Ms O’Connell was not at work on that day).
The evidence is that Ms O’Connell also reported what had happened at the meeting to Ms Bronwyn Klar, the Assistant Operations Manager, and expressed her concern at how the 7 February meeting was conducted.
Ms Klar gave oral evidence to the effect that she had discussed the meeting with Mr Rugari. She mentioned the fact that Ms O’Connell was upset to learn that other people had been discussing her performance and passing on the feedback. She and Mr Rugari had a discussion about presenting feedback more positively and presenting it as feedback rather as a complaint. Ms Klar gave evidence to the effect that Mr Rugari had indicated to her that he did not like anonymous feedback himself, but that the feedback was provided from staff members out of concern for Ms O’Connell’s wellbeing and the staff members were not willing to provide names.
Analysis of evidence of the meeting
The only detailed evidence about the conversation at the meeting came from Ms O’Connell. Given the lapse in time, Mr Rugari’s recollections of the exact backdrop to the meeting and content of the conversation were vague.
However, as to the significant features of the meeting there is no real dispute. We find as follows:
·Mr Rugari called the meeting. The meeting was held in an office. Only Mr Rugari and Ms O’Connell were present. It was informal in nature. The meeting took place following matters conveyed to Mr Rugari by a number of staff members relating to Ms O’Connell’s interactions with members of the public on the telephone. What was conveyed to Ms O’Connell was in relation to her manner being loud and her using inappropriate language. Mr Rugari did not identify the source of the complaints (other than confirming it was staff in response to a question from Ms O’Connell). There was no particularity or detail provided of the conduct or manner beyond the general comment as to her manner. Ms O’Connell became upset. She was permitted to go home.
It is unclear to us whether the meeting was in fact called primarily because of concern for Ms O’Connell’s wellbeing, or with a view to improving her manner with customers, or a combination of both.
From the material before us, and accepting that Mr Rugari’s recollection was very limited as to the detail and background to the conversation, we accept that the matters conveyed to him by a number of other staff members related to Ms O’Connell’s interactions with one or more members of the public on the telephone. They related to her manner being loud and using inappropriate language. Ms O’Connell indicated that she did not necessarily accept that such complaints had been made. We accept on the evidence that they were.
We should add that is not clear that Mr Rugari used the word “complaint”, but Ms O’Connell indicated that he did. We accept that he may have used the word “complaint”. In any event, in our view, nothing turns on whether that word was used or not.
Was the 7 February 2013 meeting reasonable administrative action carried out in a reasonable manner?
The nature of the concerns raised with Mr Rugari related not just to Ms O’Connell, but her dealings with members of the public. Ms O’Connell was an experienced officer having worked at Centrelink for approximately seven years. It was appropriate that the “complaints” be considered by Mr Rugari, as Ms O’Connell’s supervisor.
Mr Rugari could not recall, nor is it evident whether he ever had, any detailed information about the contents or context of the telephone calls the subject of the complaints. The issue of “loudness” is a description of a trait and is general in nature as well as subjective to some degree. The complaint of “inappropriate language” requires detail or context to make sense of it.
Whilst the reaction of the employee is not determinative in assessing the reasonableness of an action, in our view it was foreseeable that passing on negative feedback to Ms O’Connell without being able to provide context or more detail about the matters raised would lead to a degree of unfairness, and make it difficult for Ms O’Connell to respond. The fact that no detail or context was provided rendered the action unfair, in that it made it very difficult for Ms O’Connell to understand precisely what the problem was and what the feedback was based on. In our view, the action of holding the meeting was premature when there were other more appropriate actions available to Mr Rugari at that time, such as monitoring Ms O’Connell’s calls more closely himself.
There are also two other factors we consider relevant in assessing the reasonableness of the action:
·the call to which Mr Rugari listened was found to be dealt with in a satisfactory manner; and
·Ms O’Connell had worked as a team member supervised by Mr Rugari since March 2011 (albeit with periods acting in a higher position elsewhere).
We acknowledge that the meeting was carried out in private; it was not malicious or carried out aggressively or in an inappropriate tone. We do not suggest there was a lack of reasonableness in relation to any of those issues of the manner in which the meeting was conducted. The issue is with the content of the discussion and whether the meeting should have been held then or at all.
Ms O’Connell was not informed in advance of the purpose of the meeting. However, given that it was an informal discussion, this is not necessarily indicative of the fact that it was not reasonable.
The fact of Mr Rugari not identifying the source of his information is also not determinative. We do not regard that aspect as necessarily essential to accord fairness in all circumstances. We acknowledge that a range of circumstances could potentially arise in a workplace in which it was appropriate and/or necessary to act on information where the source wishes to remain anonymous.
We also recognise that issues which arise in the workplace can be handled in different ways and some managers will handle counselling situations more adeptly than others.
Further, Ms O’Connell acknowledged in her evidence she can be loud, and does engage in ‘self-talk’ while a customer is on the phone. This suggests that there may well have been a foundation for a discussion between Ms O’Connell and her supervisor.
However, in our view, holding an impromptu meeting with Ms O’Connell at that point in time and seeking to pass on negative comments about her phone manner with customers was not reasonable in circumstances where:
·Mr Rugari had not himself observed the problematic conduct, and was not in a position to give details of what it was, when it had occurred, or specifically what he thought was problematic about it so as to allow her to identify the conduct in question, and respond to the feedback if appropriate; and
·There were a range of other actions available to Mr Rugari, including monitoring Ms O’Connell’s calls more closely himself, so as to assist in providing meaningful feedback to Ms O’Connell.
We acknowledge that Mr Rugari may not have approached the meeting with the intention of informing Ms O’Connell that other staff members had spoken to him about her phone manner. However, it was also inherently problematic, in our view, for Mr Rugari to inform Ms O’Connell (when pressed by her) that a number of her colleagues had given negative feedback about her phone manner, without identifying who they were. It was not surprising, in our view, that this left her feeling undermined, isolated and distrustful of her colleagues. Inevitably, as she was not in a position to know who had spoken to Mr Rugari about her, she was left in the position of suspecting that any of her colleagues may have done this. Not being privy to precisely what was said or by whom also made it impossible for her to assess the motivations involved, and whether the reports were motivated by concern for her. In addition, we do not consider the situation to have been one in which it was necessary or appropriate to pass on anonymous feedback.
Accordingly, in our view, the meeting convened by Mr Rugari on 7 February 2013 did not constitute reasonable administrative action undertaken in a reasonable manner.
The 2014 incident
As we have noted above, the second incident relates to the fact that Ms O’Connell continued to take leave, and when she returned to work on 13 January 2014, she was presented with a letter directing her to a FFD Assessment with Dr Sara Souter, an Occupational Physician.
Ms O’Connell’s leave records are before the Tribunal.[17] They indicate a mixture of flex leave, personal leave, annual leave and special leave taken by Ms O’Connell in 2013 and early 2014. In December 2013, Ms O’Connell had scheduled annual leave and her grandmother passed away and she sought leave associated with that.
[17] Exhibit R3, T35/258 - 262.
We also have before us Ms O’Connell’s Coaching Records.[18] The Tribunal understands that these coaching sessions are held monthly. The Coaching records include the following definition:
Coaching is a series of structured conversations that are designed to help employees improve their learning and performance, and enhance their job satisfaction and quality of life.
[18] Exhibits A2 and A4.
The coaching notes do not indicate any concern with Ms O’Connell’s fitness for duty, and there is no evidence before us to suggest that any one raised concern about her fitness for duty with her. The coaching records refer to extended leave and the need for Ms O’Connell to provide medical certificates. However, they also record Ms O’Connell being rated “fully effective” in August 2013, and contain the following comments:
·(11/7/13) “… our aim is to support her and have a holistic approach to having Kerrie achieve and sustain the high standard of performance that she has in the past.”
·(7/8/13) “Kerrie ensures she keeps TL [team leader] informed of any matters impacting her health where TL can assist. This open trusting relationship is valued.” In relation to her performance it was noted “So good to have you back Kerrie. Your skills are valued.”
·(16/12/13) “Kerrie has returned from two weeks REC leave and advised she is feeling refreshed and well.”[19]
[19] Exhibit A2.
As we have noted, Ms O’Connell requested a review of the decision directing her to a FFD Assessment. The review was carried out and a decision made to confirm the decision on 28 January 2014.
The delegate[20] who undertook the review appears to have regarded Ms O’Connell’s leave as an “extended absence”. She noted that the early intervention approach had not achieved success. She observed that Ms O’Connell continued to access regular periods of leave throughout 2013 and continuing into 2014. The delegate concluded:
Based on the purpose of a fitness for duty assessment defined in the Injury and Illness management guidelines, and the criteria listed in the Public Service Regulations 1999 under direction to attend medical examination I am satisfied that referring Ms O’Connell for a Fitness for Duty assessment is a valid course of action based on her ongoing inability to obtain or sustain a regular pattern of attendance.[21]
[20] Exhibit R3, T4/35.
[21] Ibid, T4/36.
There was no evidence that the need for the assessment was urgent.
Although they were not specifically referred to by the delegate, it is relevant for our purposes that, at the time Ms O’Connell was required to attend the FFD Assessment, there were written procedures in place, as set out in the Department of Human Services document entitled “Fitness for Duty Procedures Version 4.1 - November 2013” (FDD Procedures).[22] We consider it appropriate that we have regard to these procedures in assessing the reasonableness of both the action to refer Ms O’Connell for a FFD Assessment and how this was done. We note that the FFD Procedures are stated to only apply to the management of non-compensable injuries or illnesses.[23] At the time no such claim had been made for compensation.
[22] Ibid, T28/209 - 226.
[23] Ibid, T28/211, [2.1].
Clause 4.1 of the FFD Procedures refers to the fact that an employee may be referred for a medical examination in accordance with Regulation 3.2 of the Public Service Regulations 1999, and outlines that a fitness for duty assessment may be initiated by a delegated employee of the department “at any time where”:
(a)there is a concern that an employee’s state of health:
·   did or may cause an extended absence from work;
·   may be affecting their work performance;
·   may be affecting their standard of conduct;
·   did or may cause them to be a danger to themselves or others; ….
The term “extended absence” is defined as follows: “examples include an absence from work of at least 4 continuous weeks, or a combined absence of at least 4 weeks within a 13 week period, whether due to the same or discrete medical condition/s.”[24] It suggests that it is not an exhaustive definition.
[24] Ibid, [3.3].
Clause 4.2 indicates that a decision to initiate a FFD Assessment “should be discussed with the employee before the referral for an assessment is made”.[25]
[25] Ibid, T29/212.
Clause 4.10 also states: “Prior to considering a fitness for duty assessment, the supervisor/manager, case manager or delegate, as appropriate, should consult with the employee to:
· discuss the department’s concerns around their fitness for duty; ...[26]
[26] Ibid, T29/213.
Clause 4.14 also provides that “The delegate, manager and case manager should work together to determine whether a fitness for duty assessment is appropriate, but the final decision to proceed rests with the delegate.”[27]
[27] Ibid. The Tribunal notes that the further descriptions in the Procedures do not focus on discussions with the employee except clause 6.1.
It is apparent from the evidence before us that, as an administrative practice, approval was often sought in advance for a FFD Assessment and an appointment arranged in order to secure a medical appointment within a reasonable time. It appears this often occurred in advance of any conversation with the employee about the assessment.
Evidence was given by Ms Lisa Thomas, who at the relevant time was a Senior Rehabilitation Consultant within the Department. She explained that following discussion with an employee, on occasions, the appointment would be cancelled. It was organised this way to allow an appointment to be secured and for administrative convenience. This is what happened in this case. The appointment was organised and a letter prepared before anyone spoke to Ms O’Connell. We accept that such administrative practices may be required to achieve the facilitation of a medical appointment within a reasonable time.
However, one of the issues raised by Ms O’Connell is the lack of discussion about the assessment before the notice was issued. From Ms O’Connell’s perspective her leave was explained, supported by medical evidence and she thought she had her employer’s support. Ms O’Connell saw no issue with any of the leave she took. In her mind, Ms O’Connell was receiving support and was being frank about various medical issues. It came as a surprise to her that the referral decision was taken with no discussion with her.
For our part, we accept that Ms O’Connell’s employer had a right to ascertain whether there were issues which were impacting on her work attendance. On the material we have, we have not been able to reach a confident conclusion as to whether Ms O’Connell’s absences in late 2013 amounted to an “extended absence” within the meaning of the FFD Procedures. However, there is no doubt that Ms O’Connell had accessed a considerable amount of leave in 2013, and we accept it was probably open to her employer in any event to conclude that her state of health may lead to an extended absence, or may be affecting her work performance. We also note she had been issued with several formal directions requiring her to provide medical evidence to support her leave.
However, we also accept Ms O’Connell’s contention that directing an employee to attend a FFD Assessment is a serious step. The documentation indicates that Ms O’Connell was absent from the workplace on an unscheduled absence from 6-10 January and the first available time for a meeting was on 13 January 2014. However, at that meeting she was handed the letter giving her the direction to attend the FFD Assessment and it was discussed with her for the first time.
Whilst there is no doubt that there had been discussions with Ms O’Connell about her leave,[28] we are not satisfied that the specific issue of her fitness for duty had been canvassed with her before the meeting when the letter was given to her on 13 January 2014, at a time when the decision had already been taken.
[28] Exhibit R 3, T29/213.
The letter was dated 6 January 2014. It stated:
This assessment has been arranged to determine how the state of your health is impacting your capacity to undertake your duties or attend work. Medical advice from the assessment will be used to guide decisions relating to your current work capacity, leave requirements, and options for rehabilitation and return to work.[29]
[29] Exhibit A1, Attachment 2, marked C1.
In the circumstances, and in compliance with the FFD Procedures we consider that a decision to initiate it should have been discussed with Ms O’Connell before the referral for assessment was made. Essentially the meeting held on 13 January 2014 was to present Ms O’Connell with the letter of referral. The FFD Procedures contemplate that there will be discussion with the employee about their fitness for duty prior to referring the employee for a FFD Assessment.
Even if the FFD Procedures were not strictly applicable in the circumstances (which we consider they were), in our view, taking the action of directing Ms O’Connell to attend the FFD Assessment without prior discussion prevented her being able to provide any input herself or from her own medical practitioner, which may have impacted on the decision to make the referral. The consequences of the referral have been extremely negative for both Ms O’Connell and the employer. Whilst we recognise that the reaction of the employee is not determinative, there is an element of predictability about it given the course taken in this matter.

Whilst slavish adherence to policies may sometimes produce absurd or unintended consequences, in our view, it was appropriate that they be followed in this case. In our view, the fact that the issue of fitness for duty was not discussed with Ms O’Connell in the particular circumstances of this case has the result that the action of referral at that time was not reasonable, or undertaken in a reasonable manner.
We acknowledge that there may be circumstances where it would be reasonable to depart from the applicable procedures, such as in cases of extreme urgency or where the well-being of the individual concerned or other staff is at risk. However, we have not been able to identify any such circumstances here. We see no reason why it would not have been appropriate to discuss the intended referral with Ms O’Connell with her before making it, and seek her input and perhaps that of her treating medical practitioner/s.
Based on the totality of the evidence, we consider that Ms O’Connell was being given mixed messages about her leave and her work. She was rated as fully effective in her work and not told that her managers had concerns about her fitness for duty. She was given no warning that she was to be referred for a FFD Assessment, and the first she knew of this was when she received the written notice referring her for a FFD Assessment. We accept she found this disconcerting and upsetting in the context of her other interactions with her managers and the Department more generally.
This is an unfortunate case which, if handled differently, could have had a very different outcome. Ms O’Connell clearly took extensive leave. She does not appear to appreciate that such a high level of leave was untoward and warranted investigation by her employer. Her employer was justifiably concerned about it and individuals did their best to deal constructively and appropriately with Ms O’Connell and her personal and health issues. However, the number of different people involved, together with the lack of clear, timely and consistent communication with Ms O’Connell, led to a very unsatisfactory outcome for both Ms O’Connell and her employer.
CHARACTERISATION AND DATES OF INJURY
In view of our findings, it is also necessary for us to address the issues of characterisation of Ms O’Connell’s ailments, and the applicable dates of injury.
Characterisation
As we have indicated, the respondent has conceded, correctly in our view, that Ms O’Connell suffered an adjustment disorder as a result of each of the incidents. We note this concession is consistent with the opinions expressed by Dr Begg in his written and oral evidence.
In his oral evidence, Dr Begg also indicated that in addition to the adjustment disorder, which he thought had lasted about a month, following the 2013 incident, Ms O’Connell suffered a more extended period of “elevated stress”, evidenced by the persistence of a skin condition until December 2013. He gave a similar opinion with respect to the aftermath of the 2014 incident.
We note that in Comcare v Mooi,[30] Justice Drummond of the Federal Court held that in order for an employee to have a compensable condition, it is sufficient for them to show that they are “in a condition that is outside the boundaries of normal mental functioning and behaviour”.[31] However, he also held that an employee will not have suffered an “injury” in the relevant sense in circumstances where they are “not mentally ill, or mentally disturbed or suffering from any psychological disorder… .”[32]
[30] (1996) 69 FCR 439.
[31] Ibid, at p 444.
[32] Ibid, at p 447.
In light of Dr Begg’s evidence, we have accordingly considered whether the “elevated stress” suffered by Ms O’Connell could also be considered to be an “ailment” within the meaning of the SRC Act. However, having regard to Justice Drummond’s observations in Mooi, we have ultimately concluded that, to the extent Ms O’Connell suffered an ‘ailment’ within the meaning of the SRC Act as a result of the 2013 and 2014 incidents, that ailment is in each case fully captured by Dr Begg’s diagnosis of “adjustment disorder” such that, once the adjustment disorder resolved, the respondent’s liability in respect of the particular injury ceased.
Dates of Injury
As, after the 7 February 2013 meeting, Ms O’Connell was absent from work for the balance of that day, we find that she first suffered incapacity on that day, which is therefore the applicable date of injury.[33]
[33] Subs 7(4) of SRC Act; Exhibit R1, T26/225; Exhibit R1,T11/59; Exhibit R3, T35/258.
Our understanding of the medical and leave records is that, following the January 2014 incident, Ms O’Connell was first certified unfit for work due to stress on 21 January 2014.[34] Therefore, that is the applicable date of injury with respect to that incident.
[34] Exhibit R1, 11/66; Exhibit R3, 35/261.
CONCLUSION
The Tribunal finds that neither the 2013 nor 2014 incidents constituted reasonable administrative action undertaken in a reasonable manner. Therefore, Ms O’Connell’s ailments are not excluded from the definition of “injury” in s 5A of the Act.
Consequently, we have decided to set aside both of the reviewable decisions and substitute decisions that the respondent is liable to pay compensation to Ms O’Connell with respect to adjustment disorders arising from the February 2013 incident, and the January 2014 incident.
COSTS
So far as we are aware, Ms O’Connell has not incurred any legal costs or disbursements in the context of this matter. However if she has, it will be open to her to seek an order pursuant to subs 67(8) of the SRC Act that these be reimbursed by the respondent.
DECISION
In Application 2015/1341, the Tribunal sets aside the decision under review and in substitution for that decision, decides that pursuant to s 14 of the SRC Act, the respondent is liable to pay compensation to Ms O’Connell for an “adjustment disorder”, with a date of injury of 7 February 2013.
In Application 2015/1762, the Tribunal sets aside the decision under review and in substitution for that decision, decides that, pursuant to s 14 of the SRC Act, the respondent is liable to pay compensation to Ms O’Connell for an “adjustment disorder”, with a date of injury of 21 January 2014.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean and Senior Member S Raymond

......... [Sgd] .......................................................
Administrative Assistant
Dated: 14 February 2017

Dates of hearing: 5 - 7 December 2016

Applicant: In person

Counsel for the Respondent: Ms G Walker

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 178

14 February 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Statutory Interpretation

Legal Concepts

Causation

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Dates of hearing:	5 - 7 December 2016
Applicant:	In person
Counsel for the Respondent:	Ms G Walker
Solicitors for the Respondent:	Sparke Helmore Lawyers