Pardeep Sidhu and Comcare
[2014] AATA 671
•12 September 2014
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/2951
General Administrative Division )
Re: Pardeep Sidhu
Applicant
And: Comcare
RespondentDIRECTION
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:
- at paragraph 36 replace “2 July 2011” and “16 August 2011” with “2 July 2012” and “16 August 2012”; and
- at paragraph 38 replace “16 August 2011” with “16 August 2012”; and
- 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 394Secondary 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
Ms Pardeep Sidhu, born 1980, applied for compensation for an ‘adjustment reaction’ which she claimed was due to employment.
The claim was rejected by Comcare on 7 January 2013, a decision upheld on review on 18 April 2013.
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.
On 6 September 2012 Ms Sidhu requested a Review of Action against Ms May in issuing the formal direction notification. A Review of Action request is followed by an investigation by an independent officer. The Review of Action was undertaken and Ms Sidhu was found to have been afforded natural justice and that the matter had been dealt with properly. On 5 November 2012 Ms Sidhu requested a secondary review by the Merit Review Commissioner. In a report dated 20 March 2013 the Commissioner did not uphold the complaint.
Study leave
Ms Sidhu was studying for a Master of Business Administration (MBA). She was being supported in her MBA course under the ATO’s Tuition Assistance Program (TAP). Ms May had to approve Ms Sidhu’s studybank quota of hours for study. In February 2012 for semester 1, 2012, Ms May had approved a quota of 98 hours and 49 minutes of study leave for Ms Sidhu. Semester 1 2012 covered the period between 30 January and 9 June 2012. As she was not taking regular time off, Ms Sidhu said when she needed to take time off for study leave she would orally seek approval from Ms May. This occurred, for example, on 29 March 2012. On that occasion Ms May did not require documentation to support her oral request.
On 17 April 2012, Ms Sidhu said she applied for study leave for 26 April 2012 to complete an assessment. Ms May’s evidence is the request by Ms Sidhu was made on 23 April 2012. There is no documentary evidence of the date of the request. On 23 and 24 April Ms Sidhu notified Ms May that she was ill. Given 25 April 2012 was a public holiday Ms Sidhu informed Ms May she would return to work on Friday, 27 April 2012.
Ms May informed Ms Sidhu, she says on 23 April 2012, that she required supporting documentation for the study leave request for 26 April 2012 since without such documentation the leave could be recorded as ‘unauthorised leave’. Ms Sidhu claimed that Ms May did not refer in her request for documentation to the possibility that the leave could be designated as ‘unauthorised’. Over the next weeks Ms Sidhu said she was unable to provide evidence that the assignment was extended until 26 April 2012. On 3 May 2012, following advice from ATO People, Ms May’s evidence is that she recorded 26 April 2012 as ‘unauthorised leave’.
Ms Sidhu claimed that from April 2012 when she orally raised tentative dates for study leave with Ms May she was always refused, so she ceased making requests and took no study leave until the time for her final examinations. Approval of individual study leave days is a matter for decision by the officer and their manager depending in part on operational requirements.
On 19 June 2012, Ms Sidhu emailed Ms May and asked if she could provide a statutory declaration concerning the study leave request for 26 April 2012 instead of documentation from the tertiary institution as she had been unable to obtain that documentation. She also requested Ms May to change the leave requested for 26 April 2012 to miscellaneous leave. Ms May asked Ms Sidhu into which category of miscellaneous leave her absence fitted. On 10 July 2012, Ms May sent Ms Sidhu an email stating she did not consider the situation qualified as miscellaneous leave and that statutory declarations could only be used to support applications for personal leave. Ms Sidhu said Ms May rejected her study leave application for 26 April 2012 on 7 June 2012.
On 2 July 2012 Ms Sidhu requested another Review of Action into the decision to record her leave as ‘unauthorised’. On 23 July 2012, the officer appointed to investigate the Review of Action contacted Ms May to discuss the request. According to Ms May, the officer asked Ms May to consider approving the leave as a more cost effective solution than conducting a review. Ms May discussed her options with her supervisor, Ms Quigley and with ATO People. According to the supervisor, ATO People informed her of both the applicant’s and Ms May’s versions of events and advised her of the options available to resolve the matter. Ms Quigley made a recommendation to Ms May, the terms of which she says she can no longer recall. On 26 July 2012 Ms May agreed to convert Ms Sidhu’s unauthorised absence to annual leave. On 30 July 2012 Ms Sidhu accepted the compromise and withdrew her Review of Action application.
On 18 July 2012, Ms Sidhu applied for further study leave. Ms May intended to approve the leave. However, after consultation with ATO People Helpline, she was advised this was not permitted when an employee was not performing at a satisfactory level. Ms May had rated Ms Sidhu as not performing at a satisfactory level in the mid-year review. Ms May accordingly responded ‘No’ to the question in the database concerning Ms Sidhu’s work performance. Accordingly the system would not permit her to approve the study leave request for semester 1, 2012.
Performance Review
In April 2012, Ms May advised Ms Sidhu she would complete her mid-year review and requested Ms Sidhu to bring her Performance Development Agreement (PDA) from her former position to the review.
Ms Sidhu, who had worked at the ATO since 2002, advised Ms May that she had never previously had a PDA. However, it transpired that Ms Sidhu had a PDA in each of the three years from 2004-2006 when supervised by another officer, but not since. The Tribunal accepted evidence that until the last couple of years the ATO did not require everyone to complete a PDA. Universal compliance is now required.
In the absence of a PDA, Ms May assessed Ms Sidhu’s performance against the basic Australian Public Service Commission Leadership Capabilities for an EL1 level officer. Normally the mid-year review is from September to March, but as Ms Sidhu had only worked in the team from 29 September 2011 to 15 November 2011, followed by some seven weeks leave and had to be re-familiarised with her duties after she returned on 23 January 2012, Ms May assessed her only on her performance in February 2012.
Ms May rated Ms Sidhu 2/5 and gave her feedback on her performance, which she said had previously been discussed. Ms May noted in her report that Ms Sidhu was new to the job and was still developing skills and improving her performance levels.
In the meantime, Ms May said she worked with Ms Sidhu to develop a PDA, [May statement, but it was not finalised by the annual review in August 2012. Ms May said she had not approved the draft PDA at that stage as Ms Sidhu had not accurately described the ‘Performance Measures’ for an EL1 officer. Ms May intended to discuss this at Ms Sidhu’s annual review.
The annual review took place on 22 August 2012. At Ms Sidhu’s request, an officer from ATO Concern attended by telephone. Ms May had prepared a folder of matters to discuss with Ms Sidhu, and provided this to her in advance. Ms May said she intended to discuss Ms Sidhu’s performance to August 2012; Ms Sidhu said she wanted to discuss unfinished business concerning her mid-term review, particularly her rating. Ms Sidhu also claimed Ms May had not provided her with adequate feedback on work she had done. Ms May denied this and said she provided oral and written feedback on a regular basis. There are examples of feedback provided by Ms May in evidence. The ensuing impasse led to the meeting being terminated prematurely and Ms Sidhu’s annual review was not completed.
Ms Sidhu claimed that the rejection of study leave in April, access to her log-on and log-off building access records, and the mid-year rating were examples of intimidation by Ms May, and that from March to August 2012, Ms May used her position to intimidate and scrutinise her work and career. Ms Sidhu claimed that, as a consequence, Ms May was responsible for her developing an adjustment disorder.
A colleague of Ms May and Ms Sidhu provided a statement in 2012 that Ms Sidhu had sought input on her work from other team members and expressed concerns about the manner in which she was being treated by Ms May. He suggested to Ms May on several occasions that Ms Sidhu be given more clearly defined work.
Ms Sidhu continued to work for Ms May until 16 August 2012, when she took leave due to stress at work. Ms Sidhu subsequently moved to a different area of the ATO where she is, according to her new supervisor, managing satisfactorily.
Between 15 August 2012 and 28 March 2013, Ms Sidhu contacted the Employee Assistance Program (EAP) for counselling on six occasions. The notes from the counselling sessions she actually attended indicate that Ms Sidhu discussed her conversation with Ms May about performance issues and discrepancies in the time management records. On 3 September 2012, Ms Sidhu identified the work situation as the trigger to her current emotional state.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Relevant sections are sections 4(1), 5A, 5B and 14.
Issues
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.
There is also evidence of Ms Sidhu’s distress at that time in the documents produced under summons from the Employment Assistance Program (EAP). On 14 August 2012 Ms Sidhu had telephoned the EAP for a counselling session, but later cancelled that appointment. On 15 August 2012, Ms Sidhu did have an appointment with a counsellor. Appointments with EAP on 23 August 2012, and 30 August 2012 were rescheduled by Ms Sidhu but counselling was again provided on 3 September 2012 and 17 September 2012. The EAP file for Ms Sidhu was closed on 17 September 2012.
This history means that the Tribunal has no independent evidence that Ms Sidhu was incapacitated for work on 2 July 2012. Nor does the Tribunal have evidence that Ms Sidhu suffered an ‘impairment’ due to her adjustment disorder prior to August 2012. In those circumstances, the Tribunal finds that the date of injury is 16 August 2011.
Reasonable administrative action undertaken in a reasonable manner
There is no liability for compensation if the injury is suffered as a result of reasonable administrative action taken in a reasonable manner. The concept of ‘administrative action’ refers to actions by an agency specific to an employee arising out of the employment relationship.[5] The ‘action [must be] directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment’.[6]
[5] Commonwealth Bank of Australia Ltd v Reeve (2012) 199 FCR 463 at 473, 474 per Gray J,
[6] Id at 482 per Rares and Tracey JJ.
Ms Sidhu relies on three clusters of matters as being administrative actions:
·The initial decision by Ms May to categorise her study leave on 26 April 2012 as ‘unauthorised leave’, coupled with her refusal to endorse her study leave application for semester 2, 2012;
·The actions by Ms May concerning Ms Sidhu’s performance, and her completion of her PDA agreement; and
·Ms May’s actions relating to Ms Sidhu’s attendance, including Ms May’s accessing Ms Sidhu’s Time Management System (TMS) records.
The Tribunal finds that these actions are ‘administrative actions’. They were taken by Ms May, were specific to Ms Sidhu, and related to Ms Sidhu’s employment by the agency. The Tribunal is satisfied on the medical and other evidence, and in light of Comcare’s concession, that these actions in combination contributed to a significant degree to Ms Sidhu’s condition.
What is reasonable action must be assessed in light of the rules of conduct or behaviour which apply to and are enforceable against an employee by virtue of their employment by the Commonwealth. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved.[7]
[7] Re Lynch and Comcare [2010] 114 ALD 394 at [105]-[106].
Dr Campbell explored the concept of reasonableness in Re Georges and Telstra Corporation Ltd:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair’.
For ‘administrative actions’ to be reasonable, there must be nothing untoward about them, nor must they be irrational, absurd or ridiculous.[8]
[8] Id at [107]-[108].
To determine whether actions are reasonable involves an objective judgment, taking into account the circumstances in which the administrative actions occurred, and whether they were rational, lawful and not irrelevant or disproportionate to what was required. The question of what is ‘reasonable’ does not involve deciding whether the action could have been done more reasonably or in a different way that is more acceptable to the decision-maker.[9]
[9] Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at [78] – [80]; Re Drenth and Comcare [2011] AATA 582 at [75] per DP Jarvis and Dr Ben Tovim.
Study leave
There are two issues arising in relation to the administrative actions concerning study leave: Ms May’s classification of 26 April 2012 as ‘unauthorised leave’; and Ms Sidhu’s claim that Ms May refused to endorse her study leave requests for semester 2, 2012.
Absence on 26th April 2012
The actions by Ms May in relation to study leave commenced in about April 2012 and continued to the end of July 2012 when the matter was resolved. Ms May had formally rejected Ms Sidhu’s request on 7 June 2012.
A factor which affects the reasonableness of the action taken by Ms May was adherence to the ATO's corporate policy on accessing study leave.[10] Corporate policy documents are expected to be followed by employees within the Australian Public Service and failure to do so may result in adverse consequences. Accordingly such documents form part of the context in which the reasonableness or otherwise of administrative actions must be assessed.
[10] ATO Part-time study leave (CMPI 2010/02/02).
Ms Sidhu’s evidence, which was not contradicted on this point, was that prior to accepting promotion to the section, she informed Ms May that she was completing an MBA through the Tuition Assistance Program. Ms May had accepted this prior to offering her the position. Hence Ms Sidhu was entitled to take time off for study provided the employee had a sufficient allowance of hours in the ATO’s pre-approved studybank, and the leave was operationally appropriate. Ms May approved Ms Sidhu’s studybank quota of hours in February 2012. At that time Ms Sidhu had also informed Ms May that she did not need regular weekly study leave absences but would need to take time off for examinations and preparation for examinations.
Ms Sidhu’s request for study leave on 26 April 2012 was an ad hoc request. Ms Sidhu’s evidence, which the Tribunal accepts, was that the request was to enable her to meet with others in the course in order to complete a group assignment. The teacher had granted an extension from 23 April 2012 to 26 April 2012 to permit completion of the assignment. This was a change to the information Ms Sidhu had already supplied. It is implicit in the ATO’s study leave policy that if there is a change in the study requirements or circumstances, this should be documented and the changes entered into the relevant ATO System.[11] That was confirmed by the ATO People Helpline in an email dated 18 June 2012.
The Tribunal does not accept Ms Sidhu’s argument that the policy does not require additional documentation in those circumstances. Ultimately, Ms Sidhu did obtain documentation in the form of an email from the lecturer supporting the grant of the extension. The emailed response from the lecturer confirming the arrangement, however, was not received until 29 October 2013. Ms Sidhu cannot be blamed for that delay.
Nor does the Tribunal accept that the absence was wrongly classified as unauthorised leave. The evidence is that ‘unauthorised absences’ encompasses absences for which no approval had been received. Ms May did not approve the application by Ms Sidhu for the day’s study leave when Ms Sidhu first applied. Accordingly when she was absent from work on 26 April 2012 without the approval of her manager it was an unauthorised absence for which Ms Sidhu was not entitled to be paid. Ultimately, following discussions with ATO People and with her supervisor, Ms Quigley, Ms May reversed that decision on 27 July 2012. The finding was converted to annual leave and the adverse outcome was reversed.
Taking an objective view, the Tribunal finds that the action by Ms May in allocating 26 April 2012 as unauthorised leave, but reversing that decision in July 2012, was reasonable. The outcome was ultimately in Ms Sidhu’s favour and there were no adverse effects for Ms Sidhu. The reasonableness of the action is reinforced by the fact that Ms May sought advice from ATO People and her supervisor before making the decision, and, following further representations, agreed to change her original decision.
Nor was the initial action excessive in the sense of being untoward. There was a reason for Ms May to request documentation for the leave in the circumstances of this being an ad hoc leave application. In addition, the leave was requested for a day immediately after a public holiday preceded by Ms Sidhu taking two days’ sick leave. 26th April 2012 was a Thursday. That meant, Ms Sidhu had four days’ absence from work, including a public holiday, on which it might be assumed she could have finalised the assignment. Indeed, the email of 29 October 2013 from the institution states that ‘The extension from April 23 to 26 was granted to allow students, especially part-time students, to utilise the public holiday on Wed April 25 (ANZAC) to finalise their assignments’. Nor was the request for documentary evidence of the extension unreasonable in the circumstances. Accordingly the Tribunal finds that the administrative actions of Ms May relating to the study leave request for 26 April 2012 were reasonable.
Studybank for semester 2
Ms Sidhu also claims that Ms May refused her request to approve her studybank allowance for semester 2, 2102. Ms May records that Ms Sidhu applied for approval of studybank for semester 2 on 18 July 2012. Ms Sidhu emailed Ms May on 2 August 2012 to confirm her enrolment for semester 2, provided a link to the principal dates for the academic calendar, and said that as soon as the unit convenors had uploaded their unit outlines, she would provide a plan for study leave for August-November 2012. She also requested 7th August off for orientation.
On 6 August 2012, as Ms May had not yet approved her studybank request and the next day was the day Ms Sidhu had requested leave for orientation, Ms Sidhu was unable to upload her request for studybank leave. Ms May sent an SMS to Ms Sidhu on 6 August 2012 to approve leave on 7 August 2012, but informed Ms Sidhu that she was unable to log on to the ATO system. Ultimately, Ms Sidhu maintained that Ms May later rejected her study bank application and failed to comply with the requirement to do so within a reasonable timeframe.
Ms May’s account, which is confirmed by evidence,[12] was that when seeking to enter her approval, Ms May had answered ‘No’ to the question whether Ms Sidhu’s work performance was satisfactory. As a consequence, the system rejected her attempt to approve the studybank request. The Tribunal accepts on the evidence that a criterion for continuation of access to studybank is maintaining a satisfactory level of performance at work. Ms May had also been advised that it was expected that supervisors would approve studybank for a TAP student, and that refusal was a serious and unusual step.
[12] Specifically Annexure H to Ms May’s statement.
It is not clear whether Ms May’s ‘No’ reflected Ms May’s rating of Ms Sidhu in the mid-cycle review, or her subsequent assessment of Ms Sidhu’s performance. Nonetheless, the evidence establishes that in Ms May’s opinion Ms Sidhu was not performing to the standard expected of an EL1 officer. Accordingly Ms May was entitled to answer ‘No’ to that question, with the result that the system would not permit her to approve the request. The rejection of Ms Sidhu’s application was automatic, was beyond Ms May’s control, and was not unreasonable.
Ms Sidhu also complained that Ms May’s delay in taking action in response to her request was unreasonable. Ms Sidhu’s evidence is that she requested approval of her studybank application on 18 July 2012 and sent her a reminder on 7 August 2012. The evidence establishes that Ms May took no action until 11 August 2012, a delay of some three weeks. The Tribunal has no evidence as to the reasons for that delay. However, Ms Sidhu had applied for a day’s leave for orientation on 7 August 2012. That was a Tuesday. Assuming that orientation ran for the week prior to commencement of the seminar, it extended from 6 to 10 August. Accordingly 11 August 2012 was prior to the commencement of semester 2 on 13 August 2012 when the studybank approval was required. In those circumstances, the Tribunal does not find that the delay in approving the studybank request was unreasonable.
It would have been unreasonable for Ms May not to have informed Ms Sidhu in advance that she could attend an orientation day on 7 August 2012. There is a paucity of evidence on this issue. However, Ms Sidhu said in her statement that Ms May had provided oral approval in advance for her to attend the institution on that day, and there is evidence that Ms May sent an SMS to Ms Sidhu on 6 August 2012 approving her absence for that purpose. In those circumstances there is no unreasonable action involved.
‘Reasonable manner’
In Re Georges and Telstra Corporation Ltd Dr Campbell addressed the issue of what is action taken ‘in a reasonable manner’. As he put it:
[T]he fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry should be considered. ...[W]hile the assessment of ‘in a reasonable manner’ relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instruction that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action ... taken.[13]
[13] Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [23]
Ms Sidhu contends that the actions relating to study leave were not taken in a reasonable manner, including unnecessary delay in the processes. The Tribunal notes that the process of reaching the outcome on the application for leave on 26 April 2012 took some four months (April to July 2012) and Ms May did not reject the leave application until 7 June 2012. The Tribunal is not satisfied, however, that the delay was due to dilatoriness on the part of Ms May, nor was it deliberate. The evidence is that the time which elapsed was in part due to the inability of Ms Sidhu to provide documentary evidence of the extension to 26 April 2012 for submission of the assessment. Although this delay was not of Ms Sidhu’s making it did slow down the process.
Another reason for the delay was that when Ms Sidhu was unable to obtain evidence from the institution, she had asked, on 19 June 2012, whether she could rely on a statutory declaration as an alternative. Ms May informed Ms Sidhu on 10 July 2012 that under the ATO’s relevant enterprise agreement, a statutory declaration could only be used for personal leave, not study leave. This interchange took further time. Ms Sidhu then escalated the matter by seeking a Review of Action relating to Ms May’s decision and she did not withdraw that request until the end of July when the matter had been resolved. Thus the delay cannot be attributed to the fault of Ms May and the Tribunal finds that the delay was not unreasonable.
Ms Sidhu also claims that Ms May acted in an inconsistent manner due to her insistence from April 2012 that Ms Sidhu needed to provide documentary evidence for variations to her study leave, in contrast to her initial response to such a request in March 2012 when no supporting documentation was required.
On its face, there does appear to be an inconsistency in these approaches. Nonetheless, there was a reason for Ms May taking a different approach in April to the one adopted in March. The fact that the day’s leave occurred immediately after a public holiday which Ms Sidhu’s lecturer and, understandably, Ms May assumed could be used to complete an assignment, raised some doubts about the legitimacy of the request.
Ms Sidhu’s explanation for the need to have study leave on 26 April was that she was to meet the group that day and that the assignment had to be handed to the lecturer in person. Ms Sidhu had also said that the members of the group were all employed. That means they could have met on 25th April, the public holiday. In addition, Ms Sidhu could have handed in the assignment either before work on 26 April 2012 or after 3.00pm but still attend work that day.
Another reason for Ms May taking a different approach to the request in April is that by then Ms May had documented evidence of discrepancies in Ms Sidhu’s recording of her time at work. This would have elevated Ms May’s concerns as to the accuracy of Ms Sidhu’s account of her need for a day’s leave. Accordingly the Tribunal is not satisfied that Ms May’s actions, although apparently inconsistent, were taken in an untoward or unreasonable manner.
Ms Sidhu also complained that when Ms Sidhu mentioned to Ms May that she would like to take certain days off on study leave, Ms May had rejected her requests. Ms Sidhu said that because of Ms May’s attitude she took no further days’ study leave in semester 1, 2012. Ms May denied these rejections occurred and said the only conversation she had about Ms Sidhu’s study leave needs was one in which Ms Sidhu indicated she had no need to take regular weekly time off.
The Tribunal does not have corroborating evidence that Ms Sidhu’s oral requests for study leave were rejected. Nor would universal rejection of her requests be consistent with Ms May’s agreement to provide approval for Ms Sidhu’s studybank hours in July/August 2012. The Tribunal is not satisfied that Ms May’s manner of handling these requests was unreasonable.
Performance agreement and related issues
Ms Sidhu had a mid-year performance review in April 2012 and an end-of-year performance review in August 2012. At the mid-year review Ms Sidhu was rated 2/5 – an entry level rating, for people new to a position. Ms Sidhu did not accept the rating and sought feedback on the reasons up to the time of the annual review.
Ms Sidhu’s complaints of unreasonableness for administrative actions which arose prior to 16 August 2012 are as follows:
·No PDA was finalised for the mid-term review, nor by the annual review;
·She did not receive appropriate support to complete her PDA;
·She was the only member of Ms May’s team of seven to be provided with a rating, and Ms Sidhu did not accept the rating;
·She did not receive appropriate support for her claimed underperformance;
·Her claimed underperformance would have been relied on by Ms May had she lodged her approval on the ATO Corporate Mobility Register for Ms Sidhu to relocate.
PDA
Ms May claims that as a matter of fairness she had only assessed Ms Sidhu on her performance in February 2012 for the purposes of the mid-cycle review in April 2012. As Ms Sidhu had only worked for some seven weeks in her new position before taking extended leave from November 2011 until the end of January 2012, and she had had to refamiliarise herself with the role on her return, the Tribunal finds reliance on only one month’s work performance was not unreasonable.
Her rating of Ms Sidhu at 2/5 is another issue. The 2/5 rating is an entry level rating, appropriate for someone ‘new to the job, developing required skills and performance level’. At the hearing, Ms Quigley said she would not have given such a rating. Instead she would have rated Ms Sidhu 3/5 - a ‘satisfactory performance’ rating. That is because a 2/5 rating is also used for someone who is not performing at level. To give someone an adverse rating based on one month’s work performance would be neither appropriate, nor fair.
Ms May’s evidence was that she gave the rating to indicate the lack of familiarity, not of underperformance. Although there is evidence that over the course of the year Ms May assessed Ms Sidhu’s work performance as inadequate, at the time of Ms May’s original assessment in March/April 2012 her justification for the rating of ‘developing’ and ‘new to the position’ was understandable in the circumstances of Ms Sidhu’s short time in the section and was likely to be an accurate reflection of her views at that time. On balance, the Tribunal accepts there was nothing untoward about the action.
Ms Sidhu also claimed she had received insufficient support to complete the PDA. The Tribunal considers her request for support was warranted for several reasons. Ms Sidhu had not completed a PDA since 2007. So she had not had to provide a performance agreement for someone at the EL1 level. Secondly, there was evidence that the Superannuation Design and Business Readiness team were involved in developing a program which was ground-breaking, innovative, constantly evolving and had to be approved by a significant number of other agencies. This inevitably complicated the processes of identification of performance measures for the purposes of a PDA.
Ms Quigley and Ms May also acknowledged that the downwardly cascading series of documents from the Corporate Plan, to the Superannuation Line Plan, and to the Superannuation Design and Business Readiness Team Plan had not been finalised by the time of Ms Sidhu’s mid-cycle review. This also affected officers’ ability to finalise their PDAs.
Nonetheless, to claim that Ms May has provided insufficient support to Ms Sidhu is also not borne about by the evidence. Initially, given Ms Sidhu had no PDA in March 2012, Ms May recommended she use the information in the Australian Public Service Commission EL1 leadership template as a guide. In addition, the Tribunal has evidence of a Line Plan of 11 July 2012 and a Team Plan dated 22 May 2012. These documents were sufficiently detailed to have enabled guidance to be provided to Ms Sidhu for the purposes of her PDA.
The evolutionary nature of the work in which she was involved meant a degree of fluidity was to be expected in the nature of her work. The Tribunal considers it was understandable in these circumstances that Ms Sidhu might have had difficulty in choice of outcomes and deliverables in her PDA form – the area which Ms May said the PDA was deficient. Nonetheless, changing policy parameters is a constant for those employed in the public sector and that is not usually a barrier to an officer being able to complete a satisfactory PDA. So the Tribunal is not satisfied either that Ms Sidhu was not given sufficient support to produce a PDA, nor that there was insufficient guidance available in corporate documents.
Ms May’s evidence was that she did attempt to advise Ms Sidhu about how to finalise her PDA. Ms May said she had been providing feedback to Ms Sidhu but she did not appear to understand what was being conveyed. Ms Sidhu’s apparent failure to understand may also be due to her failure to accept what was required of her. That is evident from the PDA document before the Tribunal. Under Performance Measures it is apparent from her responses that on a number of issues Ms Sidhu’s entries recorded disagreements with Ms May’s views. So that too probably explains a reason for the failure to complete the document by the time of the annual review. Disagreement with the views of one’s supervisors is not the kind of information to be included in a person’s performance measures.
In these circumstances, there was no unreasonable absence of support to enable Ms Sidhu to complete her PDA. Nor was the delay unreasonable given that Ms May considered the PDA could have been finalised in June 2012 but the Performance Measures element of the PDA needed work and it was intended this element be completed at the annual review. The Tribunal does not accept that Ms May’s attempts to assist Ms Sidhu complete her PDA was evidence of unreasonable failure of support on Ms May’s behalf.
Absence of support by Ms May to assist Ms Sidhu’s underperformance
Ms Sidhu also maintained that Ms May had not provided her with guidance and support generally in relation to her work performance. Ms May’s evidence is that she did provide that support. Her testimony was that initially she provided verbal feedback to Ms Sidhu. However, when work was returned which indicated the feedback had been ineffective, she gave advice to Ms Sidhu in emails and provided review comments on work submitted. An example of such work was examined at the hearing and although Ms Sidhu initially claimed the comments were not those of Ms May, the Tribunal is satisfied on the evidence that they were. The comments were made by Ms May, they were detailed, and were intended to guide Ms Sidhu. For these reasons the Tribunal is not satisfied that Ms May did not offer sufficient support to Ms Sidhu on her work performance.
Inconsistency of treatment
Ms Sidhu complained that she had been the only one of the officers in Ms May’s team of seven who had been rated in the mid-year review. Ms Quigley, at the hearing, denied this was the case. The Tribunal accepts her evidence. Apparently three of the officers in the team, including Ms Sidhu, had been rated. So Ms Sidhu had not unreasonably been singled out for a rating.
Corporate Mobility Register
A related management action arose when Ms Sidhu informed Ms May on 16 July 2012 that she wished to place herself on the Corporate Mobility Register, that is, as someone who was interested in moving to another position within the ATO. In order to effect placement on the Register, the supervisor’s approval is required.
Ms May had responded that she would be happy to support the request after the annual review, scheduled for August 2012. Ms Sidhu responded that her working in the section was affecting her health. Ms May said in those circumstances she would act earlier but she notified Ms Sidhu when doing so she would be honest in her comments on the system concerning Ms Sidhu’s ‘unresolved issues with TMS and leave’; and ‘current work performance’. On 27 July 2012, Ms Sidhu informed Ms May that she withdrew her request to register.
The Tribunal’s findings are that there was nothing untoward or unreasonable about Ms May’s responses to these requests by Ms Sidhu, nor were the responses provided in an unreasonable manner. Ms May was entitled to be honest in her comments when providing support for the move, and she had informed Ms Sidhu of her intentions in that regard.
TMS
Ms Sidhu contends that Ms May’s actions relating to the discrepancies in Ms Sidhu’s time management records were not undertaken in a reasonable manner as follows:
·Ms May accepted that Ms Sidhu should be permitted to take part in an informal study arrangement within the workplace, but later denied she had given permission, and used this matter as the basis for the issuing of a formal direction against Ms Sidhu;
·Ms May did not formally or informally communicate her concerns about Ms Sidhu’s attendance between February and June 2012, in other words, this was unfair and involved unreasonable delay;
·Ms May did not align her actions to relevant policy and procedure;
·Ms May required Ms Sidhu to provide documentary evidence to prove attendance during times Ms Sidhu disputed she was not at her desk or doing work related to her duties when she was aware that some of the data was incorrect, a requirement which was unfair and illogical.
Informal study arrangements
When Ms Sidhu joined Ms May’s team she was to be working six hours a day. At that time her hours were 9.00am until 3.00pm and Ms Sidhu was apparently working for the six hours without a break. To work for six hours without a break was later discovered to be contrary to the agency’s enterprise agreement. In any event, when Ms May observed that Ms Sidhu did not always arrive at 9.00am nor did she always leave at 3.00pm and was not at her desk at other times when no meetings were scheduled, it was reasonable for her to be concerned and to take action to warn Ms Sidhu since it was apparent that Ms Sidhu was not working her required six hours a day, nor attending for six hours while taking appropriate breaks.
Unreasonable delay
Ms May began to make notes of these absences and in April 2012 when Ms Sidhu presented her time sheets for approval, Ms May showed her the notes and asked for her to correct the discrepancies. Ms Sidhu did so. Ms May also provided her with the relevant policies concerning time management. This occurred on 19 April 2012. That means in April 2012 Ms Sidhu was aware that Ms May had been monitoring her time-sheets and she was then on notice that Ms May had concerns about the issue.
The Tribunal finds that there was no unreasonable delay in Ms May notifying Ms Sidhu in April of her concerns about Ms Sidhu’s timesheets. Nor was it unreasonable for Ms May to continue to keep a close eye on Ms Sidhu’s attendance records given the evidence of discrepancies in these records.
Ms Sidhu has complained that there was unreasonable delay in communicating those concerns between February and June 2012. The Tribunal accepts that Ms May alerted Ms Sidhu to those concerns in April. Thereafter the policy required Ms May to see whether the timesheet problems continued before taking any further action. Ms May did so over the last weeks of April. When issues continued, she consulted Ms Quigley and ATO People about how best to handle the issue. That was a not unreasonable delay. Nor was there a need for Ms May to inform Ms Sidhu that she was seeking advice about how to deal with the situation. There is no obligation on a supervisor to inform an employee that the supervisor is contemplating further corrective action. So for both reasons, the administrative actions taken by Ms May in relation to this matter were not taken in an unreasonable manner.
Late in April 2012, Ms May had sought Ms Sidhu’s log-in/log-out records to check the accuracy of her timesheets. The records were sought on 6 June 2012. Ms Sidhu was alerted to Ms May’s actions when she emailed Ms May on 19 June 2012 asking her to approve a backlog of time sheets. Ms May responded that she was aware of the backlog and was doing a comparison between the time sheets and the log-in/log-out records. On 25 June 2012, Ms May emailed the spreadsheet to Ms Sidhu and asked for a meeting to explain the more serious discrepancies which were highlighted. There were some 12 more serious examples of these spread over 67 days. Ms Sidhu’s response was provided by 29 June 2012.
The Tribunal does not consider this was an untoward delay, given the need for Ms May to monitor Ms Sidhu’s attendances from mid-April, to seek advice from Ms Quigley and ATO People, to obtain access to the log-in/log-out records, and then to do the comparison with the time-sheets, identify the discrepancies and set up a meeting to discuss the issue with the employee. In effect these steps took place between mid-April and mid-June, a period of only eight weeks. .
Nor does the Tribunal accept that Ms May did not communicate her concerns to Ms Sidhu either formally or informally. An initial meeting took place on 19 April 2012 when Ms Sidhu was alerted to Ms May’s concerns and reminded of the ATO’s attendance policies. On 6 June 2012 Ms May obtained access to Ms Sidhu’s log-in/log-out records. Ms May says she informed Ms Sidhu of this; Ms Sidhu denies it. That is a contested matter. As Ms May said the notification was oral, and no witnesses were called on this issue.
However, Ms May said she informed Ms Sidhu on 17 July 2012 that another employee in the section had told her he had been informed by Ms Sidhu that the access was occurring. When Ms May informed Ms Sidhu of this, and that Ms May was prepared to obtain a statement from that employee to this effect, Ms Sidhu did not pursue the matter. So, on balance the Tribunal accepts that Ms May did provide the information to Ms Sidhu.
On 21 June 2012 Ms Sidhu was aware that access to her log-in/log-out records had been provided and a comparison with her timesheets was occurring. Ms Sidhu was emailed the spreadsheet on 25 June 2012 showing the discrepancies between the timesheets and the log-in/log-out records and she was given an opportunity to provide an explanation. This history does not indicate that Ms May unreasonably withheld information from Ms Sidhu concerning her monitoring of her attendance, nor did she unreasonably delay the processes of dealing with the matter. The Tribunal does not accept Ms Sidhu’s contentions on this issue.
Compliance with policy and procedure
Ms Sidhu’s complaints about this issue are listed in an email from Ms Sidhu to Ms May dated 13 August 2012. Ms Sidhu said the email contained the policy setting out the steps required before a formal direction is issued when an employee has not accurately reflected their attendance in their TMS records. Ms Sidhu says she was advised by HR that these were the steps. Ms Sidhu did not provide any reference to a numbered policy document which confirms these steps. Nonetheless, the Tribunal notes that the steps read as if taken from a policy.
Ms Sidhu’s contentions, based on the list, would appear to be that Ms May did not provide her with ‘written evidence of suspicion’ of TMS breaches, did not ‘provide ongoing feedback’ during the period when her timesheets were being monitored, and did not provide informal counselling when the issues persisted.
The Tribunal’s findings earlier do not support these contentions. Ms May had informed Ms Sidhu on 19 April of her concerns about her TMS, had counselled her and provided her with the ATO’s relevant documentation. Ms May may not have provided her with ‘ongoing feedback’ but as the Tribunal has found, Ms Sidhu was aware from the 19 April that Ms May had concerns about Ms Sidhu’s time-management and had given her the opportunity to explain her absences. So Ms Sidhu was alerted to Ms May’s concerns. Ms May was also aware of Ms May’s concerns because the Tribunal has found that Ms May informed her orally that her log-in/log-out records were being sought. These interchanges occurred over a period of some eight weeks, a relatively short period.
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.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. ..................[sgd]......................................................
Associate: S. Wardell
Dated 12 September 2014
Date(s) of hearing 28 & 29 July 2014 Applicant In person Counsel for the Respondent Jane Godschalk Advocate for the Respondent Ella Howard Solicitors for the Respondent Australian Government Solicitor
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