Peta Martin and Comcare
[2014] AATA 553
[2014] AATA 553
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0404
Re
Peta Martin
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 11 August 2014 Place Sydney The Tribunal sets aside the decision under review and in substitution of that decision, decides that Comcare is liable for Ms Martin’s adjustment disorder under s 14 of the Act.
.....................[SGD]...................................................
Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION — Psychiatric injury — Whether injury is the result of reasonable administrative action taken in a reasonable manner — Reasonableness to be assessed with reference to the circumstances surrounding the action
PRACTICE AND PROCEDURE – procedural fairness – role of “pleadings”
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 25(4A), 39
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4; 5A(1);5A(2); 5B(1); 5B(3); 7(4); 14
Workers Rehabilitation and Compensation Act 1986 (SA)
CASES
Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1 at [29]Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
National Australia Bank Limited v KRDV [2012] FCA 543; (2012) 204 FCR 436Rand and Comcare [2014] FCA 584Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335
SECONDARY MATERIALS
AAT, Guide to the Workers’ Compensation Jurisdiction, Version 2.0 September 2013
REASONS FOR DECISION
Senior Member A K Britton
11 August 2014
Ms Peta Martin worked at the Australian Broadcasting Corporation between January 2010 and March 2012. Comcare decided to refuse to accept Ms Martin’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of her claimed injury “anxiety depression”. Ms Martin has asked the Tribunal to review the matter. For reasons I will explain, I have decided to set aside Comcare’s decision.
The parties agree that Ms Martin was suffering from an adjustment disorder when she made her claim for compensation in June 2012, and that condition was contributed to, to a significant degree, by her employment with the ABC. They disagree however about whether, as contended by Comcare, Ms Martin’s condition was “a result of” the decision not to appoint her to the position of cross media reporter and, if so, whether that decision constitutes “reasonable administrative action taken in a reasonable manner”. If the answer to each of these questions is “yes”, by the operation of s 5A of the Act, the ABC will not be liable for Ms Martin’s adjustment disorder.
Ms Martin contends that she had been suffering from an adjustment disorder for about nine months before she learnt that her application for appointment to the position of cross media reporter was unsuccessful. She claims that the primary cause of her condition was the bullying and harassment she was subjected to throughout the two years she worked at the ABC.
The Legislative Scheme
Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Ms Martin if it results in impairment or incapacity for work (s 14 of the Act).
The Act defines “injury” to mean (s 5A(1)):
a disease suffered by an employee;
…
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
“Disease” is defined to mean: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth (s 5B(1)). “Ailment” in turn is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” (s 4). “Significant degree” means “a degree that is substantially more than material” (s 5B(3)).
Section 5A(2) defines “reasonable administrative action” to mean:
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
…
(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.
Background
Ms Martin commenced employment as a producer of the ABC’s local morning radio program in January 2010. Based in Renmark, South Australia, Ms Martin’s position involved finding and researching stories, identifying and briefing suitable interviewees, and preparing scripts for, and providing support to, on-air presenters.
Ms Martin initially worked under the direct supervision of Mr Bruce Mellett who, among other things, was the presenter of the local ABC breakfast program broadcast from Renmark. In August 2011 she was appointed to act on a temporary basis in the role of cross media reporter. In that role she continued to work out of the Renmark studio but came under the supervision of Hobart based Ms Carol Raabus.
When the permanent position of cross media reporter was advertised the following year, Ms Martin applied and was interviewed for that position. Chaired by Ms Raabus, the selection panel included Mr Mellett and regional content director, Mr Johnathon Wright. When advised in March 2012 that her application had been unsuccessful and she would be returning to her substantive position under the supervision of Mr Mellett, Ms Martin “broke down”. She was subsequently diagnosed as suffering from an adjustment disorder. Since March 2012 she has been certified unfit for work.
Allegations of bullying and harassment
In an undated statement prepared by Ms Martin and submitted to the ABC in April 2012 (the first statement) Ms Martin outlined a number of instances of “bullying and harassment” by Mr Mellett and, on occasion, cross media reporter Mr Tom Coull, who was also based at Renmark (until August 2012). In these proceedings she claimed that statement only included the more serious examples of mistreatment. In a subsequent statement Ms Martin addressed Mr Mellett’s response to her allegations ((Exhibit A2) (the second statement)). She claimed that in preparing both statements, she had relied on contemporaneous notes taken by hand and entered into her home computer.
According to Ms Martin, throughout the period she worked at the Renmark studios she was either bullied or ignored by Mr Mellett and the work environment was “toxic”.
In July 2011 in the course of investigating allegations made by Renmark-based ABC producer, Ms Susan Rooney-Harding, about her treatment at work, ABC manager Mr David Hua questioned Ms Martin and was told she also had difficulties with Messrs Mellett and Coull. Mr Hau’s impression from that conversation was that Ms Martin was not very forthcoming, which he found not surprising given they had never spoken before and understandably she may have been concerned that any disclosure made might “travel”. Mr Hua encouraged Ms Martin to make notes of any inappropriate conduct and advised that unless she was willing to document her complaints little could be done. Ms Martin claims that in the course of that conversation Mr Hau said even if she made a complaint he could not “protect her”. Mr Hau strenuously denies that account of the conversation and contends that had there been any suggestion that Ms Martin was “unsafe” he would not have hesitated to act. Mr Hua heard nothing further about Ms Martin’s concerns until informed that she had made a claim for workers compensation alleging that she had been subjected to bullying and harassment.
Two days after being advised that her application for promotion had been unsuccessful Ms Martin emailed Mr Wright and advised that she would not be attending work the following day and would be lodging a “formal complaint about bullying by Mr Bruce Mellett” when her “health permits”. According to Mr Wright this was the first time he had heard of any issue between Ms Martin and Mr Mellett, apart from a dispute between the two in mid-2011 over Ms Martn’s contracted start time. He said he could not recall, as alleged by Ms Martin, being told she had received a lot of negative feedback from Mr Mellett and “did not feel safe in the office”.
The formal complaint lodged by Ms Martin in April 2012 detailed 11 incidents and included allegations that Mr Mellett:
·failed to intervene during a meeting when Mr Coull shouted at her, said her work was “not good enough” and stormed out;
·failed to take action when, in an email copied to other members of staff, Mr Coull accused her of failing to use social media to promote stories featured on ABC radio;
·confronted her and another colleague in an aggressive manner for viewing a You-Tube video at work;
·flew into a rage and said “I’ve got no fucking idea” when asked had he seen the morning’s newspaper; and
·consistently engaged in “passive aggressive behaviour” by, among other things, not responding to her greetings and ignoring her.
Ms Martin’s complaint was referred to Ms Catherine Ilcesin, the manager of the ABC’s People and Learning unit, for “case appraisal”. In an undated report Ms Ilcesin wrote “there is no evidence to support Peta’s claim that Bruce had behaved inappropriately towards her”. The report indicates that in the course of investigating Ms Martin’s complaint Ms Ilcesin spoke to Messrs Mellett and Coull and another staff member based at the ABC’s Renmark studios (not Ms Rooney-Harding). Apart from that contained in the report, little information was available in these proceedings about the steps taken to investigate Ms Martin’s complaint.
Mr Mellett denied mistreating or failing to support Ms Martin. Attached to a statement prepared for these proceedings was a copy of notes he claimed were prepared contemporaneously. It records his observations of Ms Martin appearing to be under pressure and having difficulties gathering stories and meeting deadlines. Mr Mellett’s notes are dealt with in greater detail below.
Ms Rooney-Harding testified that throughout the period she worked at the ABC’s Renmark studios, 2010 to September 2012, she was mistreated by Messrs Mellett and Coull. She lodged a formal complaint which was investigated by the ABC and found not proven. She decided to leave the ABC because in her opinion her position had become untenable after two years of “constant bullying and harassment”. Ms Rooney-Harding believes her complaint was not properly investigated.
Ms Rooney-Harding testified that based on her observations, Mr Mellett’s behaviour towards Ms Martin was “very different” to his behaviour towards other members of staff. She claimed, among other things, that she observed Mr Mellett ignoring Ms Martin’s greetings, excluding her from conversations, and on several occasions swearing at her in editorial meetings.
Counselling and medical treatment
Ms Martin spoke to counsellors with Davidson Trahire (the counselling service) – a phone counselling service offered to employees of the ABC, on 27 May 2011, 2 June 2011, 16 June 2011 and 29 July 2011. Copies of the notes made by the counselling service were produced to the Tribunal. A document headed “Case management” dated 27 May 2011, records Ms Martin’s current symptoms as being “appetite, sleep, energy levels, judgement and mood” and notes:
Lose confidence; anxious; put on a lot of weight; eat through stress; goes to the gym; sleeps ok unless the bully goes on leave and when they come back doesn’t sleep; previously physically ill due to bullying; paranoia
The records produced by the counselling service also include notes made by the counsellors which record Ms Martin reporting that the office:
is “quite toxic” and there was “bullying, manipulation”
has a passive /aggressive culture (talking under breath/slamming doors)
The notes record “interventions” discussed with Ms Martin, including “self-care and strategies to deal with the stress she was experiencing in the workplace”. The notes also record Ms Martin saying she felt “scared” and “like a better person when away [from the office]”.
A note of Ms Martin’s consultation with the counselling service on 29 July 2011 records “things weren’t great but have improved since made appt”; “decides needs to be happy”; “as long as there is hope can cope”; “client advised that she will hold onto the remaining sessions until she feels she needs them and will call at this point”. Ms Martin’s next contact with the counselling service was a week after being advised that her application for the role of cross media reporter had been unsuccessful.
Ms Martin consulted GP, Dr Kulatunga, on 25 June 2011. Dr Kulatunga’s notes of that consultation record Ms Martin reporting:
sleep problems, disturbed and early wakening, in the morning she feels nauseated and some time[s] diarrhoea
chest tightness on and off
Under the heading “management”, Dr Kulatunga wrote:
Seems she is under stress, explained 2 options
Change environment or change the way she thinks
Talk to a friend
Advised regarding re-enforcing positive lifestyle modifications (exercise, healthy diet and maintaining a range of interests)
Three days later Ms Martin saw another doctor at the Renmark Medical Centre where Dr Kulatunga was based, about a minor physical problem. The notes of that consultation made no reference to any psychiatric symptoms.
Ms Martin’s account of symptoms
In her first statement, Ms Martin wrote that by mid-2010 she “began to fear Mr Mellett’s inappropriate behaviour”. She claimed he often acted in an aggressive manner towards her and refused to acknowledge her greetings. She said this impacted on her personal life and by early 2011 she began to dread going to work and felt unsafe.
According to Ms Martin around this time she noticed that she was perspiring more than usual and her energy levels were low. She wrote that during her annual performance appraisal conducted by Mr Mellett in March 2011 she believed her situation was hopeless and she began to develop a range of physical symptoms such as “feeling sick or vomiting before work, headaches and stomach cramps”. She described her psychological condition as “battered”. She claimed that she had difficulties sleeping and by May 2011 found it difficult to concentrate at work.
According to Ms Martin the reason she consulted Dr Kulatunga in June 2011 was because of “a consistently upset stomach and tight chest”. Consistent with the clinical notes, Ms Martin testified that Dr Kulatunga advised that she had two options: either leave her job, or change the way she thought about her situation. She claimed that she declined Dr Kulatunga’s offer to refer her to a counsellor because she was already using the ABC’s counselling service and was concerned that “word might get out” if she saw a local counsellor.
Symptoms after appointment to the position of cross media reporter
Ms Martin wrote that her appointment to the acting role of cross media reporter in August 2011 led to “an easing of, but not a conclusion to Mr Mellett’s passive aggressive behaviour”. She wrote that she decided at that time to stop documenting incidents of inappropriate behaviour and to instead focus all her energy on winning the permanent position of cross media reporter. She said that throughout this period Mr Mellett continued to ignore her despite the fact that throughout most of January 2012 they were the only two people working out of the Renmark studio. She said this made her feel anxious and unable to sleep.
According to Ms Martin, before applying for the position of cross media reporter, she had made several unsuccessful applications for positions within the ABC in locations other than Renmark. She claimed that the cross media reporter position was not her preferred option because it required her to be based at the Renmark studio, although not under the direct supervision of Mr Mellett.
Medical opinion
Psychiatrists, Drs Michael Clarke and Jules Begg, assessed Ms Martin for the purpose of these proceedings. Each prepared reports and gave oral evidence concurrently. There was little about which they disagreed.
In oral evidence they explained that despite using different labels – “adjustment disorder with mixed anxiety and depressed mood” (Dr Clarke) and “major depressive disorder” (Dr Begg), any difference between them on the question of diagnosis was “splitting hairs”. They explained that while those labels are commonly used interchangeably, the latter is generally used to describe depressive symptoms that are especially severe and pervasive.
Dr Clarke was of the opinion that Ms Martin was probably suffering an adjustment disorder when she saw Dr Kulatunga in June 2011. In his report of 5 June 2013, Dr Begg stated that the date of onset of Ms Martin’s condition was probably 19 March 2012 but in oral evidence, after being taken to the clinical notes made by Dr Kulatunga, he revised that opinion and agreed with Dr Clarke. According to Dr Begg, providing Ms Martin had been suffering the symptoms recorded by Dr Kulatunga for at least a couple of weeks, that would be sufficient to support a diagnosis of an adjustment disorder. In his experience physical symptoms such as early morning wakening and diarrhoea are significant and commonly found in people anxious about going to work or becoming depressed.
In oral evidence Drs Begg and Clarke agreed that on the basis of the history each had been given, it is unlikely that Ms Martin’s adjustment disorder had resolved when told that her application for appointment for the position of cross media reporter had been unsuccessful.
They conceded however that Ms Martin’s failure to seek further medical treatment for her psychiatric symptoms after June 2011; the record of the final counselling session in 2011, which indicated some improvement in the work situation; the positive assessment made by Ms Raabus about Ms Martin’s performance while acting in the role of cross media reporter (August 2011 to March 2012 ); and the evidence of Ms Martin not having taken any significant time off work, were factors that indicated that her condition may have resolved by March 2012. Both agreed that, even if there had been some improvement, Ms Martin probably “limped along” mentally and physically during this period. According to Dr Begg, Ms Martin’s reduced contact with Mr Mellett throughout would have been “extremely beneficial” and consistent with her apparent reduction in symptoms. Nonetheless, in his opinion, she would have carried the memory of her distressing interactions with Mr Mellett during this time. As a consequence, according to Dr Begg, when faced with the prospect of returning to Mr Mellett’s supervision, Ms Martin would probably have become more distressed than would have normally been expected.
Drs Begg and Clarke agreed that in March 2012, when notified that she had not been appointed to the position of cross media reporter, there was, as Dr Clarke put it, a “significant deterioration in [Ms Martin’s] mental state”.
Was Ms Martin suffering an adjustment disorder in March 2012?
Ms Martin submits that the promotion decision is irrelevant to the question of whether she sustained an “injury” within the meaning of the Act. Before addressing that submission I will address two factual assumptions that underpin that submission, namely that the date of onset of Ms Martin’s adjustment disorder was June 2011 and that she continued to suffer that condition when notified that her application for promotion had been unsuccessful.
The weight of medical evidence is that Ms Martin was suffering an adjustment disorder when she saw Dr Kulatunga in July 2011. The more difficult question is whether she continued to suffer from that condition nine months later. Counsel for Ms Martin, Mr Grey, submits that while the evidence reveals that there had been an easing of symptoms throughout the period she worked as a cross media reporter, her symptoms had not resolved. Counsel for Comcare, Mr Gollan, on the other hand argues that the experts effectively conceded that Ms Martin’s condition had resolved.
The task of deciding whether Ms Martin was already suffering from an adjustment disorder when advised that her application for the position of cross media reporter was unsuccessful is a difficult one. The following comments made by Dr Begg point to the difficulty of deciding whether during that period her condition had fluctuated or had resolved (Transcript of Proceedings, Re Martin and Comcare, (AAT, SM Britton 12 June 2014) p 35, l 15-25):
It's possible that the symptoms resolve when things are going well in the office, and that might be okay for a few weeks and you might say that she doesn't have an adjustment disorder at that point because everything's okay, but the sensitivity is there, the memories of what's happened. So generally the stressors start to accumulate, and the final stressors that give rise to the person decompensating may not appear to be that severe, than when you understand them in the background of a prolonged period of struggle, it makes better sense. So to summarise my answer, I think it is possible that the adjustment disorder would fluctuate, but it depends on the evidence of presentations to the doctors and what her history is of persistent symptoms.
As Comcare points out, there is some evidence of an improvement in Ms Martin’s mental state during the period she worked as a cross media reporter. It is to misstate the evidence however to assert the experts conceded that because of that evidence they believed the condition had resolved. Both were of the opinion that her actual experience of symptoms was also relevant. Dr Clarke emphasised the history he had been given suggested her condition persisted, albeit with reduced and fluctuating symptoms.
Like the Tribunal, both psychiatrists were reliant on Ms Martin’s uncorroborated self-report given some time after the relevant period and after her claim for compensation had been rejected. (Ms Martin was assessed by Dr Begg in August 2012 and Dr Clarke in March 2013.) While the evidence is finely balanced I find that Ms Martin was probably suffering from an adjustment disorder during the period she acted in the role of cross media reporter. While plainly not an independent witness, nonetheless Ms Martin has consistently given a history of suffering some symptomatology throughout the period she acted as cross media reporter. In reaching that finding I have also had regard to Dr Begg’s explanation that a diagnosis of an adjustment disorder is available even where the person has a fairly low threshold of symptomatology.
When should the assessment of liability be made?
Counsel for Ms Martin, Mr Grey, contends that where, as in this case, the alleged injury is in the form of a “disease”, specifically a “mental ailment … of gradual development”, in determining whether the employee has sustained an “injury” for the purpose of the Act, the correct approach is to identify the date at which a proper diagnosis of the alleged ailment was or would be capable of being made, and then ask whether, at that point in time, the elements of “injury” are satisfied, namely:
That the subject ailment, was contributed to, to a significant degree, by the employee’s employment, and
If so, whether that ailment was not a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
Adopting that approach, Mr Grey contends that Ms Martin sustained an injury within the meaning of the Act because, as at June 2011, she was suffering an adjustment disorder which had been contributed to, to a significant degree, by her employment and it was not a result of any reasonable administrative action. Mr Grey contends that it is therefore irrelevant that nine months later when told her application for promotion had been unsuccessful there was a worsening of her condition. He argues that as a matter of logic it could not be said that Ms Martin’s adjustment disorder was “a result of” an action that post-dated its onset.
Mr Grey contends that approach is consistent with the decision of the Full Court of the Federal Court in Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335. Counsel for Comcare, Mr Gollan, disagrees.
In Smith the Full Court considered whether the Tribunal erred in deciding the “s 7(4) issue” before addressing whether the injury, namely the aggravation of Mr Smith’s osteoarthritis, was contributed to, to a material degree, by his employment. Section 7(4) states that “an employee shall be taken to have sustained an injury, being a disease … on the day when: the employee first sought medical treatment for the disease, or aggravation; or, the disease… resulted in the death…or first resulted in the incapacity…, or impairment of the employee; whichever happens first”. Buchanan J (with whom Greenwood J agreed) stated (at [34]) that “it involves no mere procedural criticism” of the Tribunal “that it should have said nothing about the potential operation of s 7(4) before addressing and concluding (at least in its own mind) the question of liability under s 14”. His Honour held (at [35]) that the Tribunal erred by:
making a finding about a matter which arose under s 7(4) of the Act without any foundation upon which to do so, whether by way of prior finding for the purpose of s 14 or by way of assumption.
His Honour remitted the matter to the Tribunal stating (at [39]) he could not exclude:
the reasonable possibility … that the AAT’s premature and unnecessary attention to the question in s 7(4) might have sent it on the wrong line of inquiry about the issues arising under s 14.
Bromberg J agreed that the task the Tribunal was required to undertake was to first assess whether the aggravation of Mr Smith’s osteoarthritis was contributed to, to a material degree by his employment, before considering the s 7(4) issue (at [56]). His Honour however dismissed the appeal because in his opinion the Tribunal’s findings on the s 7(4) issue had no bearing on the manner in which it determined the issue of liability (at [69]).
As Mr Grey points out the relevant date for the purpose of s 7(4) — and the date a diagnosis of the subject ailment was or could be made, will not necessarily correspond. Nonetheless it seems to me that the approach Mr Grey urges me to adopt is not dissimilar to the approach the Full Court warned against in Smith.
Smith is authority for the proposition that the assessment of whether an employee suffered an injury for the purpose of s 14 of the Act, relevantly whether employment contributed to that ailment to a material degree, must be made prior to, and independently to, the s 7(4) issue. I am unable to accept that Smith is authority for the proposition that that assessment must be made at the date a diagnosis was or could be made. Nor am I able to accept as Comcare suggests that Smith is authority for the proposition that the assessment of liability can only be made at the end of the employment period. When that assessment is made will sometimes be critical to what, if any, employment factors contributed to the condition, or whether the condition was suffered as a result of reasonable administrative action. The Full Court did not expressly address when the assessment should be made. As Bromberg J commented in Smith (at [59]) the date of “onset” may well be relevant to the question of causation.
The majority in Smith considered it necessary in deciding whether employment contributed to Mr Smith’s ailment to a material degree, to give consideration to “the whole of the relevant period of employment” (at [38]). I see no reason not to adopt that approach in this matter where, as the evidence reveals, a number of one-off and on-going stressors contributed to Ms Martin’s condition. Adopting that approach it follows that it is necessary to consider the entirety of Ms Martin’s period of employment and ask whether her adjustment disorder was suffered as “a result of” the decision not to promote her to the position of cross media reporter.
Was Ms Martin’s adjustment disorder “a result of” the decision not to promote her to the position of cross media reporter?
Comcare contends Ms Martin’s adjustment disorder did not constitute an “injury” for the purposes of the Act because it was “a result” of her failure to be promoted to the position of cross media producer. Ms Martin contends that Comcare is not exculpated from liability because, consistent with the opinion of Drs Begg and Clarke, the worsening of her condition was caused by her realisation that she would be returning to the supervision of Mr Mellet, a prospect she dreaded, and any contribution caused by her disappointment with the loss of an opportunity for career advancement was immaterial.
Ms Martin’s condition will be suffered as “a result of” the decision not to promote her to the position of cross media reporter (the decision), if it was an operative cause of the condition, even if there were other unrelated causes. (Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at [18] – [26]; Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 at [54] – [56]; Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1 at [29]).
On 16 March 2012, Ms Raabus rang Ms Martin to advise that her application for appointment to the role of cross media producer had not been successful. According to Ms Raabus, while disappointed, Ms Martin initially appeared to take the news in her stride and indicated she would be happy to participate in a hand over with the successful applicant. According to Ms Raabus, as the conversation progressed and the issue of returning to work in her substantive position was raised, Ms Martin became “very upset and emotional” and said she had problems with Mr Mellett and did not want to return to work under his management. Ms Martin agrees with this account. According to Ms Martin when she realised she would be returning to work with Mr Mellett she was devastated, “broke down uncontrollably”, could not stop crying and became overwhelmed by the hopelessness of her situation.
Immediately after that conversation Ms Martin went home and suffered what she described as “a breakdown”, her first “true” panic attack. She packed up and drove to be with her family in Adelaide. The following day she consulted GP, Dr Bennett, who diagnosed her as suffering from a psychiatric illness, referred her to a psychologist and certified her unfit for work.
Ms Martin testified that the primary reason she had applied for the position of cross media reporter was so she would not have to return to work under Mr Mellett’s direct supervision and to this end she had applied without success for a number of positions outside South Australia. She claimed her preference was to leave the Renmark studio and the reason she applied for the cross media reporter role was because at the time it was the only available option and at least guaranteed that she would be removed from the direct supervision of Mr Mellett.
Drs Begg and Clarke agree that the history each had been given, which they agreed was broadly the same, did not suggest that Ms Martin had any particular interest in the cross media role or a “yen for career advancement” but rather saw the position as a way to remove herself from Mr Mellett’s supervision. In their opinion the deterioration in Ms Martin’s condition was caused by her realisation that she would be required to return to work under the supervision of Mr Mellett and, as she saw it, her position had become hopeless. They agreed that any “yen” for the position was so minor its contribution to Ms Martin’s adjustment disorder was immaterial.
Conclusion
I do not agree, as I understand Comcare to suggest, that Ms Martin’s claim that the primary reason she applied for the role of cross media reporter was to remove herself from the supervision of Mr Mellett, is a recent invention designed to avoid the operation of s 5A of the Act. There is powerful evidence to corroborate Ms Martin’s claim that her belief she had been mistreated by Mr Mellett pre-dated the decision not to promote her to the position of cross media reporter. This includes the notes made by the counselling service and Dr Kulatunga, the evidence given by Ms Rooney-Harding and the evidence of the conversation between Ms Martin and Mr Hau in July 2011.
I accept Ms Martin’s claim that the cross media reporter position was not her preferred option and the primary reason she applied for that position was to remove herself from Mr Mellett’s direct supervision. I agree with the experts that what caused her to “decompensate” was the realisation that the decision meant she would be returning to Mr Mellett’s supervision and her belief that the alleged bullying would continue.
While the Act is beneficial in nature, I see no warrant, as suggested for Ms Martin, for interpreting the phrase “failure to obtain a promotion” in s 5A(2)(f) as being synonymous with “failure to obtain career advancement” or “failure to obtain monetary or other reward”.
A number of consequences flowed from Ms Martin’s failure to obtain the promotion to the position of cross media producer. These included:
·Ms Martin would be required to return to her substantive position and work under the direct supervision of Mr Mellett; and
·Ms Martin would be denied a small pay increase and the opportunity to further develop her skills in cross media production.
The question posed by s 5A(1) is whether the claimed ailment was suffered as a result of the nominated action, in this case the failure to obtain the promotion. It matters not which of the anticipated consequences of the offending decision was most likely to have troubled Ms Martin. That her reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement, is irrelevant. In her mind the former was a direct and foreseeable consequence of the decision.
I am satisfied on balance that one of the operative causes of Ms Martin’s adjustment disorder was her failure to obtain the position of cross media reporter. I find that Ms Martin’s condition was “a result of” that action.
Was the action taken in a reasonable manner?
Ms Martin contends that the decision not to appoint her to the position of cross media reporter was not taken in a reasonable manner. Comcare disagrees.
Ms Martin argues that the decision was not taken in conformity with the ABC’s policy on recruitment, the “ABC Recruitment & Selection Guidelines”, August 2010 (the Guidelines). She contends, that consistent with the Guidelines, Mr Mellett should have disqualified himself from participating in the selection panel or, at the very least, disclosed to other members of the panel the “highly negative” views he held about her competence and integrity.
Comcare contends that there is no evidence that Mr Mellett was biased against Ms Martin. While conceding that Mr Mellett was probably exasperated by Ms Martin’s handling of certain issues, Comcare submits that the evidence does not establish he was biased against her or failed to act impartially. The “proof in the pudding”, argues Comcare, is the evidence that Mr Mellett awarded Ms Martin a slightly higher score than other members of the panel and, when approached by Ms Raabus in July 2011, had recommended she be given the opportunity to act in the cross media reporter role, notwithstanding his reservations about her ability to manage her time. Comcare contends that if Ms Martin’s argument is accepted, any manager who has cause to reprimand a person under their supervision would be excluded from participating in the recruitment process.
In Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 Robertson J cited with approval (at [83]) the following passage from Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42, where commenting on a similar (but not identical) provision to s 5A of the Act contained in the Workers Rehabilitation and Compensation Act 1986 (SA), Lander J stated (at pp 47-48):
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
In Keen in a separate judgment Bleby J said (at p 63):
Whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
The above passage was cited with approval by Cowdroy J in National Australia Bank Limited v KRDV [2012] FCA 543; (2012) 204 FCR 436 (at [51]).
Commenting on the relevance of alternatives, in the assessment of whether the subject administrative action was undertaken in, a reasonable manner, Robertson J said in Martinez (at [81]):
In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.
ABC Policy on recruitment
The purpose of the Guidelines (at p 3) is stated to be to assist people “involved in recruiting and selecting staff to fill vacancies covered by the ABC Employment Agreement 2010-2013”.
The Guidelines state:
Merit principle
Selection in the ABC is based on merit.
Merit selection means selecting the best person for the vacancy:
(g)having regard to the inherent requirements of the job;
(h)without patronage, favouritism or discrimination on any of the recognised grounds of unlawful discrimination (see the Workplace Behaviour Policy for more information on the recognised grounds of unlawful discrimination); and
(i)through the application of a selection process that is fair and objective.
Merit is assessed by referring to the applicant’s work performance, skills, knowledge, personal qualities, qualifications, experience and potential as they relate to the selection criteria for the position.
The Guidelines state that the Selection Panel is responsible for making a recommendation to the relevant ABC delegate regarding the appointment of a particular candidate. The Guidelines also address (at pp 6, 7) the composition of the Panel:
Generally, the Selection Panel should be made up of at least 3 people; include the hiring manager of the position (usually the convenor) and someone from outside the department; be of mixed gender.
The Selection Panel shall: include a staff nominee (Arrangements for the appointment of the staff nominee will be coordinated by the National Recruitment Unit) preferably include at least one person who has been trained in or has experience with ABC selection procedures.
Selection Panel members should preferably be at least one band higher than the maximum band of the vacant position. It is not generally appropriate for a staff member to be on a Selection Panel where their supervisor or manager is an applicant.
If a Selection Panel member (including the convenor) believes their personal relationship with an applicant could affect an applicant’s selection prospects, they should raise this with the convenor, or a People & Learning representative, and withdraw from the Selection Panel. All reasonable steps should be taken to ensure that the Selection Panel does not include persons who could reasonably be perceived to have a conflict of interest in the selection decision (refer to the ABC Conflict of Interest Policy). It is the responsibility of all panel members to raise any concerns they may have regarding a potential conflict of interest of other panel members.[emphasis added]
…
Recruitment process
Twenty people applied for the permanent position of cross media reporter advertised by the ABC in February 2012. The candidates were assessed against six selection criteria:
1Proven ability to create local multi-platform media content, including presenting to air, in a contemporary manner with an audience focus.
2Detailed understanding of the issues that affect the local audience.
3Good editorial skills including the ability to source and analyse information and exercise sound judgement.
4Can use all software and hardware relevant to this role such as web publishing, writing and photography as well as being aware of emerging technologies and audience trends.
5Proven ability to work effectively as an integral and positive member of a small team and ability to work independently and remotely from management.
6Demonstrated understanding of the spirit and intent of the ABC’s Editorial Policies and workplace values and other policies and guidelines relevant to your employment – including Equity and Diversity and OH&S.
The panel shortlisted and interviewed four candidates, including Ms Martin. The candidates were asked six identical questions prepared by Ms Raabus and agreed to by other members of the panel. Each member asked the same two questions of each candidate.
After interview and before any discussion with other panel members, each member was required to award the candidate a score of between one (does not meet selection criteria) and five (meets selection criteria to a superior level) for each selection criteria. The panel then discussed their respective assessments and awarded an agreed score.
As the table below reveals, there was little difference between the scores each member of the panel initially awarded Ms Martin:
Selection Criteria Scores Ms Raabus Mr Mellett Mr Wright Agreed score Selection Criteria 1.
3
3
3
3
Selection Criteria 2.
3
3.5
4
3.5
Selection Criteria 3.
2.5
3
3
3
Selection Criteria 4.
2.5
2.5 - 3
3
3
Selection Criteria 5.
2.5
2.5
2
2.5
Selection Criteria 6.
3
3.5
3
3
TOTAL
16.5
18-18 ½
18
18
The margin between the total scores awarded to short-listed candidates was also small. The successful candidate was awarded a score of 19; Ms Martin and another candidate a score of 18 (each) and a fourth candidate a score of 17.5.
The selection panel recommended that Ms Martin be offered the position if the successful candidate did not accept the offer. The report of the selection process was written by Ms Raabus and agreed to by the panel. It contained an interview performance summary about each candidate and in relation to Ms Martin, stated:
Peta is currently employed in the position of acting cross media reporter at Renmark. In this role, Peta is responsible for maintaining the Local ABC website, providing multimedia content for the web and content for the radio.
Peta has been acting as cross media reporter in Renmark since the position was vacated by Tom Coull in August 2011. Peta is a producer with ABC Local Radio and took on the online role with enthusiasm, teaching herself many of the skills needed for the job. The panel felt Peta did not demonstrate a strong local knowledge of the Riverland region, despite having lived and worked in the area for two years. Peta’s technical skills and knowledge needs work and she was not able to provide a good example of her ability to work as an integral and positive member of a small team. The panel did feel, however, that if the first choice was not able to accept the role, we would like to offer it to Peta.
Ms Raabus wrote that she and other members of the panel were of the opinion that Ms Martin did not answer the questions regarding selection criteria two (detailed understanding of the issues affecting the local audience) as well as could be expected from someone with experience in the region. Ms Raabus also was of the opinion that Ms Martin had not answered the question regarding selection criteria five (proven ability to work as a member of a small team …) well and failed to address the criteria sufficiently. In addition Ms Raabus was of the opinion that Ms Martin did not perform highly on the question addressing selection criteria four (can use all software and hardware relevant to the role…).
According to Ms Martin, she was extremely anxious during the interview, knowing Mr Mellett’s poor opinion about her abilities as a journalist. She thought that her answers to the questions he asked during interview — selection criteria 2 and 5 — were particularly poor and this was confirmed by the post-interview feedback given by Ms Raabus. She said she attempted to be “light” during the interview but was tense and felt the interview had not gone well.
Mr Mellett’s diary entries relating to Ms Martin
According to Mr Mellett, for a number of years his practice has been to make contemporaneous notes about any conduct or performance issue concerning staff under his supervision that might later require attention. Tendered in these proceedings was a copy of the notes he made about Ms Martin (the notes). Covering the period, February 2010 to June 2012, the notes run for some 18 pages. Mr Mellett explained that not all of the instances where he had cause to speak to Ms Martin are recorded in the notes.
About a third of the notes were devoted to a Cybershot camera reported missing from the Renmark studio in late 2011. Mr Mellett’s comments about that issue were triggered by a report sent by Ms Martin on 17 January 2012 to ABC managers across South Australia, Northern Territory and Tasmania, in which she requested that consideration be given to replacing the camera, stating that when transferred to Western Australia, Mr Coull “must have thrown away [the camera] in his clean up”.
In an entry made after receiving an email from Mr Wright asking: “Seems odd … did we really throw out a camera?”, Mr Mellett wrote:
This is lie!! The camera was never ‘thrown away’ as alleged by Peta. Get this from Jono and fire off e-mails to Jono and Carol:
No we did not!!! Peta already has had this explained to her, and frankly I am a little tired over having to try and re write history with this sort of stuff and Peta’s continued misinterpretation or misrepresentation! And it’s more than a little mischievous of Peta to suggest Tom said and quoted that when it plainly isn’t the truth. BUT here we go again.
The … camera was faulty and was returned to Multiplatform by Tom [Coull] during his last month on board. … the basics are this: In the essence of co-operation Susan was to ‘share’ or make available her camera for online while Multiplatform sorted out either repairs or a new camera. This was at the height of the war between Susan and Tom and I think there was never any movement from both parties for that to happen.
I have no idea of what has become of the old camera, other than it ended up with Multiplatform in Sydney …
Do you want me to contact Carol re this?? Because it needs to corrected'!!!!!!
Under the entry for 17 January 2012 was a copy of an email sent by Mr Mellett to Ms Raabus:
Peta has been told previously about this and that the … camera was faulty and had been sent to be repaired or replaced by former Renmark cross media reporter Tom Coull. For her to state that: Tom Coull said the [camera] must have been thrown away in his clean up is plainly not correct and it's a bit annoying quite frankly.
…
Sorry to be a bit pedantic but Peta’s version is simply not correct and it shouldn't be seen as though we simply throw cameras away during a clean out!!!!!!
The notes record Ms Raabus’s reply that she found it “odd” that Ms Martin continued to claim that that the camera had been thrown out after she had spoken to her about the issue and that she would “… correct Peta on this issue again”.
Under the entry for 23 January 2012, Mr Mellett wrote:
Contact Catherine [Ilcesin, manager, People and Learning] and tell her I have grave concerns about this report and the continued misrepresentation by Peta Martin and I consider this a breach of workplace behaviour. [emphasis added]
In an email to Ms Ilcesin of the same date Mr Mellett wrote that he considered Ms Martin’s “continued misrepresentation” to be “a breach of workplace behaviour and a potential issue of misconduct”. He wrote that Ms Martin’s actions in publishing a report to ABC colleagues across a number of states raised “a few issues”:
l/. That Peta continues to repeat these false allegations that suggest Tom Coull misappropriated ABC property in his direct charge. This is despite her knowing these allegations are false and she’s been told this at least twice by myself and also Carol Raabus from Multiplatform of this. For her to continue to repeat these false allegations is malicious and alleges Tom Coull has misappropriated ABC property, I consider this a breach of workplace behaviour and a potential issue of misconduct.
2/. That Peta quotes Tom Coull in her report and I have serious doubts this is something Tom would have said, given its complete nonsense. If she is using a false quote - that is also a serious breach.
3/. Peta is well aware and knows about defamation and her job requires her to make sure facts are checked. She would not consider publishing an item online knowing it was false, so why would she continue to do so, even if it is in house?
In oral evidence Mr Mellett conceded that when he made these notes he was annoyed by Ms Martin’s allegation that Mr Coull had “thrown out” the camera especially given that he had informed her earlier that the camera had been sent to Sydney for repairs.
The notes also record other observations about Ms Martin’s performance and conduct throughout the period she was under Mr Mellett’s supervision and the period she acted in the role of cross media reporter. These comments relate to, among other things, Ms Martin’s alleged failure to report to work on time, to provide appropriate support to on–air presenters, to comply with proper procedures for using ABC equipment and various shortcomings in her work.
The flavour of the entries made throughout the latter part of 2011 and early 2012 indicate Mr Mellett’s growing frustration with Ms Martin. For example, on 18 November 2011, he wrote:
Carol Raabus rings re positions in Renmark. She asks how Peta is going? I tell her OK, but I am worried that with a very limited workload, Peta is working 11-12 hour days. I tell her this is an issue we flagged previously and that is essentially one of Time Management and Peta's inability to manage her time, set priorities and actually achieve tasks within an acceptable timeframe. To be honest I cannot understand why Peta cannot get her work done. Meg has been producer for two months and she is already getting through more than Peta ever did and finishing on time!!
A month later he wrote that Ms Martin had failed to organise photos for ABC on-line when nearby towns were “belted by a massive storm”. He wrote:
10.11.11 …We have an update on the web BUT NO photos and no urgency to actually attend and do live radio crosses!! The supreme irony in all of this is that Multiplatform did an Emergency mock exercise two days ago, and yet when the real thing hits here.... Peta just sits in the office and worries about the Open 11.11 project!!!!!!!! There's no sense of urgency, no sense that this is in fact a big story and no sense that people will want to know what the hell is going on. And no sense that she should be there on the ground, reporting ACROSS the MEDIA! I tell her she needs to go to Waikerie - she says it's a long way and she can be more productive here. I tell her she should go and do a live cross into programs - Peta tells me she needs written permission from Carol to do any work for Radio-I cannot believe this!! I ask her when this was made a rule. She says it’s always been the case and that's what Carol has said, I tell her she is missing the big yarn of the year for this audience and I am very disappointed in her attitude.
10.11.11: At the daily Editorial Meeting, Peta says she 'won't go to Waikerie’ because 'I need to use my time efficiently' and she needs to do a Remembrance Day piece with a local priest, and no-one wants our website to be a storm page is her exact quote!! When I tell her that that's where the stories and photos are, she says she will go to 22nd St in Renmark and speak to some people about the storm!!!!
The next entry was made in mid-January and relates to Ms Martin’s alleged failure to feature a story about a fire at a local factory:
16.1.12: Massive factory fire at Glossop. Starts at 5.45 and going strong at 7am. Run it in Brekkie, News and Mornings. Peta comes into my office at 11.30 and says she probably better go and get an updated photo from the fire!!!!!!!!!!! I tell her the fire is well and truly out by now and that we've missed another big local story. She says she is covering it from here, but I tell her there's more updated information, photos etc live at the scene.
While most of the entries made throughout February 2012 relate to the camera issue other issues are also addressed:
29.2.12 Get an urgent message from MDBA about a grave error on our website - a story that Peta has done mentions the wrong date. I tell Peta to address this as a matter of urgency and report this to Carol.
2.3.12 Peta asks Jono about Murray Bridge being part of our region!!! I explain to Peta it is not.
2.3.12 Peta posts a story about no high river for SA, despite heavy rain falling in catchment. The figures she quotes are from SA Water- but they are a week old!! Also a few spelling errors in the copy
“ By the end of April in five to six weeks time, which is about the travel time for all of that water in Victoria to get down to South Australia, we're going to see flows at the border that will go above 40,000 megalitres per day."
Some of her copy is written like a 9 year old!
7.3.12: Peta says she has booked the tieline for her cross from MDBA meeting on Friday and will use the iPhone. I ask her which one she is using, as they are both distinct and separate pieces of equipment. I am using the iphone and tieline... I explain that tieline is the OB gear. No!! not that, I am using the iPhone and tieline. I explain AGAIN that tieline is an application on the iPhone, because that's the company that makes the equipment and that the OB gear is THE TIELINE. Peta gets very angry and says I know they are two different pieces and I can use both and I know how to use all of this equipment. I tell her I am not having a go at her, but everyone else in the ABC uses this description and therefore she will "confuse people if she continues to refer to the iPhone app as THE TIELINE. I also explain that she needs to book the equipment and that should be done via the diary as we had explained previously. Witnesses: Will Rollo, James Handcock, Meg Vonic-Joyce.
As of 8.3.12 Peta has still NOT booked out the iPhone equipment despite the fact that I even placed the booking diary on HER desk!
In evidence Mr Mellett denied that when he participated in the selection panel he held “a very low opinion” of Ms Martin or that he believed her to be a liar and incompetent. He pointed out that when initially contacted by Ms Raabus he had suggested that Ms Martin be given the chance to act in the role as cross media reporter notwithstanding his concerns about her time management skills. In his opinion the views he expressed in his notes about Ms Martin did not make it inappropriate for him to be a member of the selection panel. He estimated that while at the ABC he has sat on between 100 to 150 selection panels and fully appreciates that members of a selection panel are required to divorce themselves from any personal views they might hold about a particular candidate. He stated that he believes he did so in this case.
Disclosure of views held about Ms Martin
Neither Ms Raabus nor Mr Wright had seen the notes prepared by Mr Mellett prior to these proceedings. Both reviewed the notes before giving their evidence. Both claim that when the selection panel met they were unaware that Mr Mellett held the views about Ms Martin he expressed in the notes.
Ms Raabus testified that she was aware from emails received from, and conversations with, Mr Mellett his views on the camera issue and his belief Ms Martin might not have been telling the truth. She said however he had never expressed to her the view that Ms Martin was a liar, had maliciously spread rumours about Mr Coulls’ alleged misappropriation of ABC property, or that her conduct constituted misconduct. In respect to her competence, Ms Raabus said that prior to the interview Mr Mellett had told her of his concern about Ms Martin’s time management skills and his disappointment with her apparent failure to respond to emergency situations but not in the terms as recorded in his notes.
Apart from those conveyed in the emails about the camera issue and Ms Martin’s time management skills, Mr Wright was also unaware of Mr Mellett’s recorded views about Ms Martin.
Ms Raabus and Mr Wright agreed with the proposition that if a member of a selection panel held strong negative views about the competence or integrity of a particular candidate they would expect that member to declare those views and it would probably be inappropriate for that person to remain a member of the panel. Each were of the opinion that if Mr Mellett genuinely held the views recorded in his notes, he should probably should have disclosed to other members of the panel that he held those views.
Conclusion: Was the decision taken in a reasonable manner?
There can be no argument and nor was it suggested that the ABC stated policy on recruitment was in some way flawed, unfair or otherwise unreasonable. The real issue is whether in this case the recruitment exercise was conducted in conformity with the policy and, if not, whether the decision was undertaken in a reasonable manner. That assessment requires a review all of the circumstances surrounding the selection decision.
As pointed out by Mr Grey, there was nothing in Mr Mellett’s notes that could be described as complimentary of, or even neutral towards, Ms Martin. The notes chronicle repeated instances of what Mr Mellett apparently considered to be Ms Martin’s shortcomings, in terms of performance and conduct.
That the notes contain only negative entries about Ms Martin of itself does not establish that Mr Mellett’s impartiality was, or might have been “fatally compromised”. Given the stated reason for making the notes — to provide an aide memoir in the event he found it necessary to take future action in relation to Ms Martin — it is hardly surprising that they only include unfavourable examples of Ms Martin’s conduct. Nor in my opinion could it be said that, because Mr Mellett had cause to counsel and discipline Ms Martin, he was rendered incapable of acting in an impartial manner in performing his duties as a panel member.
Mr Grey contends that in reporting Ms Martin’s conduct to Ms IIcecin, Mr Mellett acted without a proper basis because, as he admitted in oral evidence, by early 2012 he was unsure of what had happened to the camera. I agree with the submission made for Comcare that it was entirely proper for Mr Mellett to report the issue given the serious nature of Ms Martin’s allegation about Mr Coull. The relevant question, however, is whether having done so, the views held by Mr Mellett which prompted him to make that report, did, or were likely to, affect his assessment of Ms Martin.
Read as a whole the inescapable inference from the notes is that in the months before the selection panel met, Mr Mellett was more than a “bit annoyed” with Ms Martin. The colourful language he used to describe her conduct indicates a heightened level of annoyance, frustration and incredulity. By late January 2012 he reported to Ms IIcecin that Ms Martin’s “continued misrepresentation” was a breach of workplace behaviour standard and potential misconduct. The language used in that report reveals the seriousness with which Mr Mellett regarded Ms Martin’s conduct. He wrote that she knowingly and repeatedly made allegations she knew to be false; that her conduct was malicious; and that she had probably defamed Mr Coull. The report to Ms IIcecin was more than just idle gossip but notice that in his opinion further action was warranted. Taken together with the negative comments made about Ms Martin’s work performance: “she is missing the big yarn for the year” (10/11/11); “some of her copy is written like a 9 year old” (2/11/12) the irresistible conclusion is that by the time of the selection panel first met Mr Mellett held Ms Martin in very low regard.
As pointed out by Mr Gollan there is no direct evidence that Mr Mellett’s recorded views about Ms Martin infected the decisions he made as a member of the selection panel or those of the other members. Ms Raabus and Mr Wright considered the recruitment process unremarkable notwithstanding each believed Mr Mellett should have disclosed the views he held about Ms Martin. I cannot agree with the proposition that the evidence of Mr Mellett rating Ms Martin slightly higher than other members of the panel “proves” that those views did not influence his actions. Given the strength and duration of those views there was a real and material possibility that they consciously or otherwise influenced Mr Mellett’s deliberations. It may be, as claimed by Comcare, that Mr Mellett managed to quarantine his views from his deliberations as a panel member. I could not be positively satisfied that that occurred. More to the point, in my opinion a fair-minded observer acquainted with the notes would probably apprehend that Mr Mellett might not bring an impartial mind to his role.
For these reasons I cannot be satisfied that the decision was undertaken in a reasonable manner.
Should the Tribunal determine whether the performance appraisal constitutes reasonable administrative action?
At the commencement of final submissions, for the first time in these proceedings Comcare raised the contention that, in addition to the promotion decision, Ms Martin’s condition was “a result of” her 2011 performance appraisal, and that action constituted “reasonable administrative action”. Comcare’s Statement of Facts Issues and Contentions filed in the Tribunal in August 2013, identified a single administrative action, namely the promotion decision.
This submission requires consideration of the Tribunal’s role and procedural powers.
In carrying out its review function the Tribunal must proceed in a manner which is “fair just, economical, informal and quick” (s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)) and ensure that both parties are given “a reasonable opportunity to present [their] … case” (s 39 of the AAT Act). The Tribunal may determine the scope of review of a decision by limiting the questions of fact, the evidence and the issues that it considers (s 25(4A) of the AAT Act).
The Administrative Appeals Tribunal’s Guide to the Workers’ Compensation Jurisdiction, 16 September 2013 (the Guide), provides (at [2.5]) that where, as in this case, a party is required to file a Statements of Facts Issues and Contentions, it must clearly and concisely set out:
the key facts upon which the party relies;
the issues that the party believes are still in dispute; and
the contentions that the party believes should be drawn from those facts.
The Guide instructs (at [4.3]) that at the commencement of the hearing represented parties should inform the Tribunal:
what issues are still in dispute and, in particular, whether any issues identified in the Statement of Facts, Issues and Contentions have been resolved; and
whether any facts have been agreed.
A claimant cannot adduce any matter in evidence without leave of the Tribunal, unless they have disclosed that matter to the Tribunal at least 28 days before the hearing (s 66(1) of the Act).
Mr Gollan submits that notwithstanding the late stage the performance appraisal issue was raised, the Tribunal is not barred from considering that issue because it emerged from the medical evidence that Ms Martin’s condition was “a result of” that issue. Even if that characterisation of the evidence, which Ms Martin disputes, were to be adopted, that is only one of the issues relevant to the question of whether Ms Martin suffered an “injury” within the meaning of the Act. The answer to that question turns on consideration of three additional discrete factual issues, namely:
Whether the performance appraisal action constitutes administrative action in respect of Ms Martin’s employment;
If so, whether that action was reasonable administrative action;
If so, whether that action was taken in a reasonable manner.
Mr Gollan submits that the Tribunal has jurisdiction to consider the performance appraisal issue because the Comcare delegate who made the decision the subject of the Tribunal’s review, nominated the performance appraisal as one of three reasonable administrative actions said to have contributed to Ms Martin’s condition. I agree. The Tribunal’s role is to reach the “correct or preferable” decision and even had the delegate not made that finding the Tribunal would have power to consider the performance appraisal issue. The Tribunal’s jurisdiction does not rest on how the parties chose to define the issues in dispute.
Jurisdiction and procedural fairness however are not one and the same thing. How the parties choose to define the issues in dispute or the Tribunal exercises its powers to determine the scope of review, while not relevant to jurisdiction, is relevant to considerations of procedural fairness.
Flick J in Rand v Comcare [2014] FCA 584 commenting on the role of “pleadings” in AAT proceedings said (at [21 ]) that while an “unquestioning attempt to transpose common law rules of procedure or evidence …is to be resisted” nonetheless there is a “danger of injustice” if those rules are “ignored as of no account”. His Honour wrote (at [26] – [27]):
To universally confine the Administrative Appeals Tribunal to a resolution of the “correct or preferable decision” by reference to pleadings would be (inter alia) inconsistent with the powers vested in that Tribunal by, in particular, s 33(1).
But the facts and legal issues to be considered by the Administrative Appeals Tribunal are not “at large”. The parties themselves may identify those issues which are considered to be relevant to the claims being advanced and resisted. And the Tribunal itself may “require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing”: s 33(2A)(c). There also remains the requirement that a party to a proceeding be given a “reasonable opportunity” to advance his or her case: s 39. Some clarification of facts and legal issues may be necessary to ensure that a party is afforded that opportunity: cf. Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 454 – 457.
After two pre-hearing conferences, two directions hearings, and a neutral evaluation, the matter proceeded to hearing on the basis as set out in Comcare’s Statement of Facts, Issues and Contentions, that the only reasonable administrative action relied upon was the promotion decision. At hearing after the close of evidence Comcare raised a fresh and significant issue. Taken together with the restraints imposed by the Act on Ms Martin adducing new evidence and given that s 5A(1) of the Act operates to deny compensation to an employee who might otherwise have an entitlement to compensation, it is difficult to see how Ms Martin would not be prejudiced if the Tribunal were now to proceed to consider the performance appraisal issue. To extend the scope of the review in those circumstances would in my opinion be contrary to the Tribunal’s obligation to ensure each party is given a reasonable opportunity to present their case. For that reason I have decided not to proceed to consider whether Ms Martin’s condition was “a result of” the performance appraisal.
Conclusion
Ms Martin’s adjustment disorder was contributed to, to a significant degree, by her employment with the ABC. It was not the result of reasonable administrative action taken in a reasonable manner in respect of her employment. I find that Ms Martin suffered an injury within the meaning of the Act. I have decided to set aside the decision under review and in substitution of that decision, decide that Comcare is liable for that injury under s 14 of the Act.
I certify that the preceding 116 (one-hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ..................[SGD]......................................................
Associate
Dated 11 August 2014
Date(s) of hearing 10, 11, 12 and 13 June 2014 Counsel for the Applicant Mr Grey Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Mr Matthew Gollan
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