Pardeep Sidhu and Comcare

Case [2014] AATA 671

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)        No: 2013/2951

General Administrative Division               )

Re: Pardeep Sidhu
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:             Deputy President JW Constance

DATE:   18 September 2014

PLACE:                  Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

  1. at paragraph 36 replace “2 July 2011” and “16 August 2011” with “2 July 2012” and “16 August 2012”; and
  1. at paragraph 38 replace “16 August 2011” with “16 August 2012”; and
  1. at paragraph 104 replace “were unreasonable or taken in a reasonable manner” with “were unreasonable or not taken in a reasonable manner”.

.............................[sgd]..............................

Deputy President JW Constance

[2014] AATA 671 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/2951

Re

Pardeep Sidhu

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal

RM Creyke, Senior Member
Date 12 September 2014
Place Canberra

The decision under review is affirmed.

....................[sgd]....................................................

RM Creyke, Senior Member

Catchwords

COMPENSATION – Commonwealth employee - whether administrative actions contributed significantly to injury –whether administrative actions undertaken were reasonable – whether administrative actions were undertaken in a reasonable manner.

Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), 5A, 5B, 7(4).and 14.

Cases

Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105

Re Buttfield and Comcare (2001) 64 ALD 281
Commonwealth Bank of Australia Ltd v Reeve (2012) 199 FCR 463
Re Drenth and Comcare [2011] AATA 582
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Lynch and Comcare [2010] 114 ALD 394

Secondary Materials

American Psychiatric Association’s Diagnostic and Statistical Manual (5th edition, 2013)

ATO Part-time study leave (CMPI 2010/02/02)

REASONS FOR DECISION

Rm Creyke, Senior Member

12 September 2014

  1. Ms Pardeep Sidhu, born 1980, applied for compensation for an ‘adjustment reaction’ which she claimed was due to employment.

  2. The claim was rejected by Comcare on 7 January 2013, a decision upheld on review on 18 April 2013.

  3. On 17 June 2013 Ms Sidhu applied to the Tribunal to review this decision.  The matter was heard in Canberra on 28-29 July 2014.

    Background

  4. Ms Sidhu worked in the Australian Taxation Office (ATO). On 29 September 2011 she was promoted to an Australian Public Service Executive Level 1 (EL1) officer in a different section of the ATO. Initially she was working four days a week, but in February 2012, she began working five days a week from 9.00am to 3.00pm.

    Time Management System (TMS)

  5. In March 2012, Ms Sky May, Ms Sidhu’s supervisor, became concerned about Ms Sidhu’s working hours and whether these corresponded to the times recorded in the ATO’s time management recording system (TMS). 

  6. In mid-April 2012, Ms May took Ms Sidhu into a quiet room to discuss the discrepancies she had observed. Ms Sidhu explained she was away from her desk because she had been comforting a friend, and she used the stairs for exercise.  Ms May provided Ms Sidhu with the relevant policy documents and explained…

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Details
AGLC
Pardeep Sidhu and Comcare [2014] AATA 671
Case
[2014] AATA 671
Decision Date

CaseChat Overview and Summary

Pardeep Sidhu and Comcare involved a claim for workers' compensation by Ms Sidhu, an Australian Public Service employee, who alleged she suffered an adjustment disorder due to administrative actions taken by her employer. The primary issue was whether the administrative actions, which contributed significantly to her condition, were reasonable and undertaken in a reasonable manner. If they were, her claim for compensation would be excluded as her condition would not fall within the definition of an 'injury' under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The matter was heard by the Administrative Appeals Tribunal and decided on 19 September 2014.

The court had to determine if the administrative actions taken by Ms May, Ms Sidhu's supervisor, were reasonable and conducted in a reasonable manner. The actions in question included a formal warning issued to Ms Sidhu regarding discrepancies in her time management records. Ms Sidhu claimed these actions contributed significantly to her adjustment disorder, leading to her claim for compensation. The court also had to decide on the date of injury, which was contested between Ms Sidhu and Comcare.

The Tribunal found that the administrative actions were reasonable and undertaken in a reasonable manner. The Tribunal noted that although Ms May may not have strictly followed all the steps outlined in the ATO's policy, the purpose of the policy, to ensure the employee was not unfairly sanctioned, was still complied with in Ms Sidhu's case. The Tribunal also found that the requirement for Ms Sidhu to provide documentary evidence to explain her absences was not unreasonable, as Ms Sidhu could have provided such evidence but chose not to. The Tribunal concluded that the actions were minuted extensively, taken following appropriate advice, and in response to Ms Sidhu's conduct that did not accord with ATO policies. Therefore, the decision under review was affirmed, and Ms Sidhu's claim for compensation was excluded.

The final orders of the Tribunal were that the decision under review be affirmed, and Ms Sidhu's claim for compensation was excluded as her condition was due to reasonable administrative actions undertaken in a reasonable manner. The Tribunal also determined that the date of injury was 16 August 2012, the date Ms Sidhu first sought medical treatment for her condition.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 17 June 2013 Ms Sidhu applied to the Tribunal to review this decision. The matter was heard in Canberra on 28-29 July 2014.Background Ms Sidhu worked in the Australian Taxation Office (ATO). On 29 September 2011 she was promoted to an Australian Public Service Executive Level 1 (EL1) officer in a different section of the ATO. Initially she was working four days a week, but in February 2012, she began working five days a week from 9.00am to 3.00pm. Time Management System (TMS) In March 2012, Ms Sky May, Ms Sidhu’s supervisor, became concerned about Ms Sidhu’s working hours and whether these corresponded to the times recorded in the ATO’s time management recording system (TMS). In mid-April 2012, Ms May took Ms Sidhu into a quiet room to discuss the discrepancies she had observed. Ms Sidhu explained she was away from her desk because she had been comforting a friend, and she used the stairs for exercise. Ms May provided Ms Sidhu with the relevant policy documents and explained the importance of accurate time recording. Ms Sidhu corrected the TMS records where Ms May had identified discrepancies. Despite the discussion, Ms May said she continued to note discrepancies in the time management records. Ms May consulted her supervisor, Ms Katherine Quigley, who suggested Ms May request Ms Sidhu’s log-on and log-off and building access records. Ms May also contacted the ATO’s human resources division, ATO People, to seek guidance. In June 2012 Ms May requested access to these records. On 27 June 2012, Ms May arranged a further meeting with Ms Sidhu to discuss the discrepancies and seek a further explanation. Ms Sidhu was given the opportunity to provide a response in writing. On 29 June 2012, Ms Sidhu provided a written response. She attributed any discrepancies to her taking longer coffee breaks due to dietary requirements for organic coffee and soy milk, having an interstate profile/log-on which caused delays, and studying in the ATO foyer. Ms May responded that her explanations were not reasonable. She also showed an internal newsletter which indicated staff should record absences for coffee breaks longer than 15 minutes, that Ms Sidhu should arrange to have her log-in profile changed to reflect her presence in Canberra, and she was reminded that staff are required to record all study leave absences. She also noted that study leave has to be approved, must be supported by documentation, and must not be approved during other periods of leave such as annual or flex leave. On 13 August 2012, Ms May was advised by ATO People that she could issue a direction and formal warning to Ms Sidhu concerning the time management discrepancies in Ms Sidhu’s TMS records as her explanation was not considered to be reasonable. Ms May had a formal meeting with Ms Sidhu on 15 August 2012 and Ms Sidhu was issued with a formal direction that in future she was to adhere strictly to the ATO’s time management requirements. Ms Sidhu disputed certain issues as she did not consider she had breached any time management requirements. Ms May provided Ms Sidhu with a draft written record of the discussion and said Ms Sidhu could make any changes, but Ms Sidhu chose not do so.

Evidence

Evidence Before The Court

The Tribunal notes that policy is not law. So although Ms May may not have conformed precisely to these steps, the purpose of the policy which is that the employee not be unfairly ambushed by being faced with a sanction for something they did not know was a matter of concern, has been complied with in Ms Sidhu’s case. In those circumstances, the Tribunal does not find that Ms May’s actions in not rigidly following all the steps in the policy, assuming it is a policy, are unreasonable.Requirement for documentary evidence The final complaint of Ms Sidhu was that it was unreasonable for Ms May to require documentary evidence to explain her absences when some of the data was incorrect. Ms Sidhu’s response on 29 June 2012 to explain the discrepancies was that they were due to:·Informal meetings with other students in her MBA course in the ATO foyer for which she understood she had approval; ·Her log-on records could be inaccurate since her profile remained in Brisbane and she experienced ‘random network delays logging into the system’; and·Coffee breaks were longer than the allowed 15 minutes as for dietary reasons she needed to get coffee from places which had soya milk. Ms Sidhu could have provided documentary evidence from her fellow students of the times and occasions when they were meeting in the foyer but she did not do so. Although Ms Sidhu claims that her profile remained in Brisbane and this may have explained some discrepancies between log-on times and her timesheets, the Tribunal is not satisfied that this was the case. There is evidence before the Tribunal that Ms Sidhu had sought to have her profile transferred on 6 October 2011 and this had been effected by 10 October 2011. Ms May had also doubted that Ms Sidhu was unable to obtain coffee suitable for Ms Sidhu’s dietary needs at places closer to Ms Sidhu’s workplace. Ms Sidhu could also have provided documentary evidence of this had it been the case. In any event, the 12 discrepancies Ms May had highlighted only related to the more lengthy and serious absences and coffee breaks were not included. Ms May had been alerted to possible errors in the data. The Tribunal infers that this was one of the reasons Ms May only highlighted the more egregious breaches. So Ms May had erred on the side of caution in identifying breaches, and this was neither unfair nor illogical. In summary, the Tribunal is not satisfied that the requirement to provide documentary evidence of the more serious breaches, nor the choice of the breaches for which such evidence was being sought was unreasonable. Conclusion The Tribunal accepts this was a case in which there was a breakdown of the relationship between a supervisor and an employee and that this adversely affected the level of trust between the two and led to a considerable amount of hostile action by both parties. Nonetheless, the evidence does not support the multiple claims that the administrative actions, as a result of which Ms Sidhu suffered an adjustment disorder, were unreasonable or taken in a reasonable manner. The actions were minuted extensively, they were taken following appropriate advice, and only in the face of continuing conduct by Ms Sidhu which did not accord with ATO policies. The decision under review is affirmed.

Decision

Reasons for decision

In summary, the Tribunal is not satisfied that the requirement to provide documentary evidence of the more serious breaches, nor the choice of the breaches for which such evidence was being sought was unreasonable. Conclusion The Tribunal accepts this was a case in which there was a breakdown of the relationship between a supervisor and an employee and that this adversely affected the level of trust between the two and led to a considerable amount of hostile action by both parties. Nonetheless, the evidence does not support the multiple claims that the administrative actions, as a result of which Ms Sidhu suffered an adjustment disorder, were unreasonable or taken in a reasonable manner. The actions were minuted extensively, they were taken following appropriate advice, and only in the face of continuing conduct by Ms Sidhu which did not accord with ATO policies. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The principal issue is whether the administrative actions which contributed significantly to the development of Ms Sidhu’s condition were reasonable and were undertaken in a reasonable manner. (Act section 5A(1)). If so, the claim for compensation is excluded as the condition suffered by Ms Sidhu does not fall within the definition of a ‘disease’ and hence is not an ‘injury’. Absent an ‘injury’ there is no liability for compensation under section 14 of the Act.Consideration There is no question, given the medical evidence, that Ms Sidhu suffered a condition diagnosed broadly as an adjustment disorder. That condition, being psychiatric in nature, is characterised as a ‘disease’ for the purposes of the Act. There is also evidence from Dr John Saboisky, consultant psychiatrist, in a report of 7 February 2013 that Ms Sidhu had recovered from the condition. The Tribunal accepts this finding. The finding is consistent with the nature of the diagnosed condition, an adjustment disorder, which is short-term, generally not lasting more than six months after the initiating stressor or its consequences, have terminated.[1][1] American Psychiatric Association’s Diagnostic and Statistical Manual (5th edition, 2013) 286-287. Comcare also conceded at the hearing that the condition was contributed to, to a significant degree, by Ms Sidhu’s employment. That means the sole issue for determination by the Tribunal is whether Ms Sidhu’s condition is not compensable because it was due to reasonable administrative action undertaken in a reasonable manner. There is also an issue as to the date of the injury.[2][2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 7(4). Date of injury In her claim for workers’ compensation Ms Sidhu nominated the date of injury as 2 July 2012 and said she first sought medical treatment for the condition on 16 August 2012. Comcare asserted the date could not be prior to 16 August 2012 since it was not until then that she consulted her doctor about her symptoms and was granted two days off work. The relevant section of the Act provides alternative criteria for the date of injury, namely, the date medical treatment is first sought,[3] or the date the condition first resulted in incapacity for work or impairment.[4] An ‘impairment’ is defined as ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’. Ms Sidhu’s adjustment disorder is considered to be a malfunction of her psychological system.[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 7(4)(a). [4] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 7(4)(b). There is no independent evidence that Ms Sidhu was incapacitated for work on 2 July 2011. It was not until 16 August 2011, that Dr Anil Goel, Ms Sidhu’s general practitioner, provided a medical certificate for Ms Sidhu excusing her from work for the next couple of days. The notes for that consultation refer to stress at work, and a similar notation appears for 23 August 2012 and 29 August 2012.