PLBB and Comcare (Compensation)
[2020] AATA 1348
•18 May 2020
PLBB and Comcare (Compensation) [2020] AATA 1348 (18 May 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/1403
GENERAL DIVISION )Re: PLBB
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Ms S Taglieri SC, Member
DATE OF CORRIGENDUM: 9 June 2020
PLACE: Hobart
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.That the first sentence of paragraph 24 of the reasons for decision reading “After the meeting on 9 July 2017, Ms LJ issued a letter of expectation to the Applicant” be changed to “Before the meeting on 9 July 2017, Ms LJ had issued a letter of expectation to the Applicant.”
...................[sgd]......................
Ms S Taglieri SC, Member
Division:GENERAL DIVISION
File Number(s): 2018/1403
Re:PLBB
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Ms S Taglieri SC, Member
Date:18 May 2020
Place:Hobart
The decision under review is set aside and the matter remitted to the Respondent for determination in accordance with these reasons.
........................[sgd]........................
Ms S Taglieri SC, Member
COMPENSATION – whether the Applicant suffered an injury, disease or aggravation of either for the purposes of the Act – liability exclusion – whether the injury or disease resulted from reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment – meaning of administrative action in respect of employee’s employment - decision set aside and matter remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Public Service Act 1999
Cases
Comcare v Reardon [2015] FCA 1166.
Comcare v Stewart [2019] FCA 365.
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21.
Drenth and Comcare [2011] AATA 582.
Drenth v Comcare [2012] FCAFC 86.
Hart v Comcare [2005] FCAFC 16.
Havnen v Comcare [2010] AATA 535.
Keenan v Comcare [2009] AATA 884.McGee v Comcare [2010] AATA 386.
REASONS FOR DECISION
Ms S Taglieri SC, Member
18 May 2020
The Applicant was a longstanding employee of the Respondent, at relevant times employed at one of its Centrelink Offices.
On 9 October 2017 the Applicant made a claim for worker’s compensation against the Respondent. At this time she was a Service Officer performing customer service duties for many years. In her claim for compensation,[1] she stated that she suffered psychiatric injury, namely an adjustment disorder with anxiety from a series of incidents at the Centrelink Office. Regarding what caused the injury, the Applicant stated “my bullying and harassment claim against Manager was dismissed without the assessor even speaking to me. He seemed to consider that because the letter of expectation was withdrawn then everything was okay. He didn’t look at all the other issues/examples I put.”[2]
[1] T4, pp 21-24, T documents.
[2] T4, p 23, T documents.
On 13 March 2018 the Applicant’s claim for compensation was rejected (the reviewable decision). The grounds for rejection were that although the Applicant suffered an adjustment disorder and employment was a significant contributor, at least one contributing factor was reasonable administrative action taken by the employer in a reasonable manner.[3] That is, the Respondent decided there was no liability to pay compensation to the Applicant for an adjustment disorder because of the exclusionary provisions in section 5A(2) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
[3] T3, p 19 T documents.
The Applicant applied pursuant to section 64 of the Act for review of the reviewable decision and the Tribunal conducted a hearing in respect of her application for review on 27 to 29 August 2019.
The Respondent was represented by Counsel, Mr Wallace and the Applicant appeared self-represented.
At the commencement of the hearing, the Tribunal was concerned to ensure that the issues in dispute and their scope were clearly defined. From the exchange between the Tribunal and the Applicant on 27 August 2019, it was established that she maintained that which she initially claimed.[4] Namely, her contention was simply that she suffered a compensable injury from 31 August 2017 which resulted from actions or inactions of the employer concerning the investigation of a bullying and harassment complaint (BHC) she had made about four managers.[5]
[4] T4, p23, T documents.
[5] Transcript pp 9-11.
The Applicant confirmed the scope of her case in the written closing submissions filed on 8 November 2019. The Applicant also filed written submissions in response to those of the Respondent dated 18 October 2019 and these were filed on 8 November 2019 also. The submissions filed by the Applicant on 8 November 2019[6] have been considered to the extent that they are relevant to the scope of the Applicant’s case. In a number of aspects, her submissions sought to engage in facts or issues in respect of which the Tribunal could not and ought not make findings. The submissions were also repetitive and difficult to follow but this is not surprising as the Applicant is not legally trained.
[6] PLBB, ‘Applicants Closing Submissions’, Submission in these proceedings, 8 November 2019, pp 1-129; PLBB, ‘Response to “Submissions of the Respondent”’, Submission in these proceedings, pp 1-92.
On 5 December 2019, the Applicant was given an extension of time to make submissions in reply[7] (including why leave should be granted to her to file those) and I reserved my decision on whether leave would be granted to make them, in view of the direction made on 27 September 2019.
[7] To the Respondent’s written submissions dated 28 November 2019.
The Applicant filed “reply submissions” on 13 December 2019 and I subsequently made an order refusing leave to her to make the reply submissions. On 14 February 2020, I published, to the parties only, separate written reasons for this decision refusing leave. On 5 March 2020 the Respondent formally withdrew paragraph 10.3 of its submissions dated 28 November 2019 and I have not had any regard to those for the decision made on this review.
The Applicant’s case was not succinctly set out in any of the documents she filed, but the most useful in identifying her case[8] identify that her contentions can be summarised and paraphrased as –
(a)Against a background of a prior compensable injury in 2016, she was subjected to criticisms and interpersonal dispute with managers about performance of her duties and so made a BHC to her employer;
(b)The complaint was the subject of a preliminary investigation conducted by Mr BP and was deficient and unfair;
(c)The employer wrongfully accepted the recommendations of the preliminary investigation and determined not to take action against the persons against whom she had complained; and
(d)As a result of the foregoing she suffered a psychiatric illness and is entitled to compensation.
[8] Exhibit A14, Applicant’s Amended Statement of Facts, Issues & Contentions [65] and [56] second-occurring; T22, pp 347-351, T Documents.
Although the Respondent in the decision under review had accepted that the Applicant’s employment contributed to a significant degree to her condition,[9] it did not maintain this position at the hearing.
[9] T20, p 292, T Documents.
Rather in summary, it contended that:
(a)The Applicant suffered a recurrence of an ailment being a disease for the purposes of section 5B of the Act; and
(b)The recurrence of the ailment was not significantly contributed to by employment with the Respondent and did not arise out of or in the course of employment.
The Respondent also contended that in the event the Tribunal was satisfied that the Applicant’s recurrent ailment arose out of or in the course of employment, there was no compensable injury because it was suffered as a result of reasonable administrative action taken in a reasonable manner.[10]
[10] Exclusion to injury in s 5A of the Act.
The Respondent asks that the decision under review be affirmed because it was correct to deny liability for the claim by the Applicant.
Accordingly, upon this review, the Tribunal needs to determine:
(a)Whether the Applicant suffered an injury, disease or aggravation of either on or around 31 August 2017,[11] for the purposes of the Act; and if so
(b)Whether liability is excluded because it resulted from reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
Although subsection 5A(2) of the Act provides non-exhaustively for what constitutes reasonable administrative action, neither party contended that the facts of this case fell within any of the actions referred to in the subsection.
[11] The date the applicant sought medical treatment and was certified incapacitated – T24, T Documents.
THE EVIDENCE BEFORE THE TRIBUNAL
The Tribunal received the entirety of the section 37 documents and a supplementary set of section 37 documents. These were received collectively as an exhibit marked T1.
The Applicant elected not to give oral evidence in chief but relied upon the T documents and a large number of other documents tendered at the hearing.[12] In summary, the documents in evidence disclosed that she had progressive interactions with named managers between October 2016 and July 2017 relating to how she performed her work. The interactions occurred on a background of disagreement and conflict between her and her immediate manager Ms LJ (and later others in the workplace) relating to how complaints about electronically raised customer debts were managed and the Applicant’s work performance.
[12] Exhibits A1-A21.
Due to the collective interactions referred to at [17], the Applicant made a BHC against her immediate manager, Ms LJ and other managers, Mr BS, Ms LQ and Ms CD.[13] This complaint was made in written form and although undated was made soon after a meeting in July 2017.
[13] T 14.20, pp 225 – 242, T documents.
The substance of the BHC is not easy to distil, but careful attention to its contents discloses that the Applicant’s complaint was that she was subjected to bullying over the period of October 2016 to July 2017 due to the matters referred to at [17] and –
(a)negative reactions from managers, Mr BS, Ms LQ and Ms CD over time arising from a letter she sent to Mr DM;[14]
(b)loss of trust in her manager, Ms LJ; and
(c)refusal to allow mediation.
[14] T14.20, p 225, T documents.
Each element of the complaint was expanded upon, but all elements were in some way related to how Ms LJ had managed the Applicant’s work performance in regard to customer complaints about electronically raised debts and a meeting on 9 July 2017.
The Applicant tendered into evidence many documents concerning the conduct of investigations in the public service.[15] In addition, her Statement of Facts, Issues and Contentions dated 26 August 2019 was received and she was cross-examined by counsel for the Respondent.
[15] Exhibits A1 – A12.
Various emails were also tendered into evidence by the Applicant,[16] which recorded the interactions she had with senior personnel of the Respondent, including those who were the subject of her complaint. A bundle of documents from the Applicant in response to a Code of Conduct review concerning her behaviour during and around the meeting on 9 July 2017 was also received in evidence.
[16] Exhibits A16 – A20.
Ms FE was a person present at the 9 July 2017 meeting. A chain of emails between the Applicant and Ms FE about Ms FE observations of what occurred on 9 February 2017 was also received in evidence.[17]
[17] Exhibit A15, Chain of emails between Ms FE and the Applicant.
After the meeting on 9 July 2017, Ms LJ issued a letter of expectation to the Applicant. The nature of this communication was a source of disagreement as the Applicant interpreted it as “disciplinary”, which she claimed was not warranted.
The Applicant did not call any expert witnesses to give evidence but did tender a report of Dr Jager of 21 November 2018.[18] Dr Jager’s view was that the Applicant suffered an adjustment disorder with depressed mood. He considered that this condition was contributed to by employment factors and non-employment factors. In particular, the employment factors were her unhappiness with the employer’s processes in relation to her efforts to assist clients and the issuing of the letter of expectation. The non-employment factors were obsessional personality and the longstanding litigation regarding child protection and her daughter.
[18] Exhibit A13, Report of Dr Jager dated 21 November 2018.
In response to a question about the level of contribution of the various factors to her condition, Dr Jager stated – “The employment factors triggered the condition and her obsessional nature maintains it.”[19] Dr Jager quite rightly declined to provide an opinion about whether the Applicant’s condition was a result of reasonable administrative action by the employer.
[19] Ibid, p 6 of report 4.b.
Short reports from Dr Kaur, general practitioner and Max Jacobs, psychologist were received in evidence in the Applicant’s case also.[20] They are of little assistance to the Tribunal, although Dr Kaur records that the Applicant’s medical records do not disclose a diagnosis of personality disorder. This is potentially relevant in view of the expert evidence relied upon by the Respondent.
[20] Exhibit A4, Letter from Dr Kuar, dated 5 April 2019.
The Respondent also tendered additional documents at the hearing[21] and called two witnesses; Mr BP and Dr Chow, a Consultant Psychiatrist. During the hearing, two documents were the subject of objections in respect of which I reserved my ruling. MFI 1, a letter of 16 July 2019 addressed to the Applicant, the admissibility of which I have addressed at [43] below. Secondly, MFI 2, an email 20 August 2017 authored by Ms LT. The email from Ms LT gives context to part of the Applicant’s BHC.
[21] Exhibits R1 – R5.
Mr BP stated that he was employed by the Respondent at the relevant time in the human resources area. His position was at APS 6 level and his title was Senior Human Resources Consultant.[22] He had been requested to undertake a preliminary investigation into the Applicant’s BHC about various managers, including Ms LJ. He also stated that he was tasked with conducting a preliminary investigation of a BHC by Ms LJ about the Applicant.[23]
[22] T10, p 55, T documents.
[23] Transcript of these proceedings, p 38, lines 40 – 45.
Mr BP said he investigated Ms LJ’s complaint first, and some material gathered in it was also relevant to and used for the purpose of the Applicant’s complaint.[24] He then prepared a preliminary assessment report (PAR) dated 24 August 2017, [25] concerning the Applicant’s complaint. The PAR identifies that the task of performing the investigation was referred to him on 20 July 2017 and he completed the investigation on 24 August 2017.[26]
[24] Ibid, p 40, lines 22- 32.
[25] T10 pp 55-63 of T documents.
[26] T14.5, p 199, T documents.
The contents of the PAR together with the employer’s acceptance of Mr BP’s recommendation that no further action be taken regarding the Applicant’s complaint,[27] formed the basis for the Applicant claiming that she suffered a compensable injury.
[27] T14, pp 87-91, T documents.
Mr BP gave evidence about his experience in conducting preliminary investigations. He stated:
Member Taglieri: “In the interim, you indicated you had done prior investigations of the preliminary investigations in the role that you undertook in what I think is human resources?”
Mr BP: “Yes.”
Member Taglieri: “How many of those would you have undertaken prior to commencing your investigation with Ms LJ’s complaint?”
Mr BP: “I would say approximately 10. It could – it could be more. They’re quite a standard process for the HR teams to undertake.” [28]
[28] Transcript (n 23) pp 40 – 41.
He also described his role in investigating the Applicant’s complaint as follows:
Member Taglieri: “And is it the case that in terms of any, what’s described in your report as a preliminary assessment, all you can do is make a recommendation to the delegate or a person standing in the delegate’s shoes at the relevant time, as to whether or not the complaint should be pursued into a full investigation?”
Mr BP: “Yes, that’s right. The difference with a preliminary investigation is, is that unlike in, say, a ‘normal investigation', the purpose of this one is to determine whether further investigation is necessary for a referral for code of conduct or – or some other action. And importantly the person doing the investigation is not permitted to offer opinion or – they have to present the facts so that the delegate can then make a decision on what information is before them. And then the delegate can either chose to endorse or approve, reject or stay the investigator’s findings.”[29]
[29] Transcript (n 23) p 41, lines 4 – 14.
Mr BP admitted that he did not receive formal training about how to conduct preliminary assessments/investigations, but explained that when originally asked to assume the role he was given a buddy to mentor him and that he followed the Department of Human Services (DHS) policies and guidelines and in-house training about bullying and harassment.[30] In particular, the evidence was that:
(a)The DHS did not have a “bullying and harassment investigations officer” role and as such there were no courses for such a role.[31]
(b)The Respondent produced no documents relevant to the qualification and training Mr BP had to conduct the investigation of the Applicant’s complaint.[32]
[30] Ibid p 43; T14.15, p 199, T documents.
[31] Exhibit A2, Letter from Ms LT dated 17.12.2018.
[32] Exhibit A3, Letter from Ms SF dated 11.02.2019.
There were some documents tendered in evidence about policies and procedures relevant to BHCs, but neither party tendered the full policies and guidelines into evidence. A general understanding of the likely content of them can be gleaned from the Information Sheets,[33] Complaints Management Policy (CMP) [34] and Conduct and Behaviour Policy.[35] Surprisingly, the parties did not tender all policies and guidelines relevant to BHCs which are referred to in the CMP.[36]
[33] T14.15, pp 199 – 213, T documents.
[34] ST7, pp 69 – 74, Supplementary T documents.
[35] Exhibit R3, Conduct and Behaviour policy.
[36] These are footnotes 10 and 16 - documents over which the Respondent seems to have ownership.
The policies and procedures appear to be flexible, intended to achieve resolution of the complaint by informal means but escalate to more formal approaches if the complaint is not resolved satisfactorily. In addition, the policies and procedures clearly embrace the notion of fairness to both parties to a complaint. The CMP itself states:
“that in managing employee complaints:
·The department investigates complaints fairly, independently and without bias;
·The principles of natural justice and procedural fairness apply.”[37]
[37] ST7, p 69, Supplementary T documents.
The Tribunal made enquiries about the delegations and authority applicable to complaint management and directed that the Respondent file evidence as to this subject. On 29 August 2019, the Respondent filed two lengthy documents containing the Instrument of Delegation and Authorisation for Human Resources related matters, being version 2017.1 and 2017.2. The difference relates to the period of time for which the delegations operated, and the potentially relevant functions or powers relate to the subjects Conduct and Performance and Review of Actions. There are no specific powers or functions in the Instruments relating to handling or investigating employee complaints about bullying and harassment.
When the Applicant’s complaint was received in July 2017, it appears from the content of Mr BP’s PAR and his evidence, that Ms SM was EL1 level Assistant Director in the HR Support People Delivery Centre. His evidence was that he was asked by Ms SM to perform preliminary investigations into both the Applicant’s complaint and Ms LJ’s complaint.[38]
[38] Transcript (n 23) p 113, lines 26 to 32.
Mr BP stated that Mr ST was the authorised delegate to act upon the report when he completed it and explained that Ms SM, who was the original decision maker, was on leave by the time he completed his report on 24 August 2017.[39] The Applicant disputes this and asserts it was Ms SM.[40] She relies upon the contents of a letter dated 25 June 2018, which refers to Ms SM as the “delegate”.[41]
[39] Ibid, p 40, line 31 – 34.
[40] PLBB, (n6) p 14 (‘Applicant’s closing submissions’).
[41] ST6, p 57 – 68, Supplementary T documents.
I also note the content of the timeline at T14.1, which suggests the decision to accept Mr BP’s recommendation had been taken by 31 August 2017 at the latest and before Mr ST’s email of 1 September 2017.[42] Mr ST’s position was Acting Assistant Director in the HR Support People Delivery Centre and he certainly formally communicated the decision to the Applicant, but it is unclear who took it.
[42] T 14.5, p 198, T documents.
Regardless of whether it was Ms SM or Mr ST who took the decision, it is likely that it was taken by an Assistant Director in HR Support People Delivery Centre with an EL1 classification.
The evidence establishes that the Applicant was the subject of a complaint by Ms LJ also made in July 2017. Ms LJ’s complaint was subject to preliminary investigation by Mr BP as described in his evidence[43], but in that instance he recommended further action.
[43] [27] of these reasons.
The Respondent sought to tender a document relating to the eventual outcome of Ms LJ’s complaint.[44] I have decided not to receive the document in evidence in this case. The document was created some two years after the Applicant claims to have suffered her compensable injury and its relevance in my view is marginal and does not assist in determining the issues on this review. Further, no medical expert appears to have placed any emphasis on the outcome of the complaint by Ms LJ.
[44] MFI 1, Letter to PLBB regarding breach of the APS Code of Conduct, dated 15 July 2019.
The Respondent relied on Dr Chow, a Consultant Psychiatrist. Dr Chow had initially provided an opinion dated 20 November 2017.[45] His opinion at that time was that of a diagnosis of adjustment disorder,[46] and that the Applicant had developed clinically significant psychological symptoms causing impairment.
[45] T16, p 260, T documents.
[46] T16, p 266, T documents.
Dr Chow stated the Applicant’s symptoms and therefore I infer, the adjustment disorder “stem from” an unreasonable letter of expectation, subsequent appeals relating to the letter of expectation and a previous worker’s compensation claim. Dr Chow also identified that the Applicant had described twelve months of interpersonal difficulties with her Manager, and some unreasonable comments about performance perceived to be bullying. In Dr Chow’s opinion, incapacity was triggered from “finding out her bullying and harassment complaint was dismissed” and that the adjustment disorder had been significantly contributed to by her employment.[47]
[47] Ibid.
The contribution of the various employment related factors in Dr Chow’s view were -
·disagreement about performance, a minor contributor;
·lodgement of a BHC and withdrawal of a letter of expectation in August 2017, also minor contributing factors; but
·dismissal of the BHC, was a major contributor.[48]
[48] T16, p 267, T documents.
In his first report, critically in the Tribunal’s view, Dr Chow stated “the interpersonal difficulties in the workplace should be looked at from both party’s perspective rather than one sided.”[49]
[49] Ibid.
Dr Chow prepared a further report dated 18 September 2018, after being asked to review a bundle of documents, all of which are listed in the report and which was tendered in evidence at the hearing.[50]
[50] Exhibit R1, Report of Dr Frank Chow, consultant psychiatrist, dated 18 September 2018.
Dr Chow gave oral evidence and explained that having received the various documents referred to in his report of 18 September 2018, he changed his opinion about the cause of the Applicant’s psychiatric symptoms. The contents of his report, however, are rather confusing. He states that his diagnosis is unchanged and that the Applicant suffers an adjustment disorder and that she has had other episodes of adjustment disorder in the past.[51]
[51] Ibid, p 8.
Dr Chow identified as relevant history pre-existing conditions, namely post-natal depression and three other workers compensation claims relating to psychiatric conditions. In addition, he referred to 90 workplace incidents indicative of conflict with colleagues, preoccupation of physical state and suggestive of a degree of reduced resilience and possibly underlying depression.
He considered the Applicant had pre-existing history and significant underlying personality dysfunction and that her presentation from 31 August 2017 was a recurrence of a pre-existing underlying condition, without identifying what that condition was.[52] However, in the last paragraph of the answer to question 3 on page 9 of his report, Dr Chow refers to the underlying condition and separately to an episode of adjustment disorder, which presumably means that there are two conditions.
[52] Ibid; Transcript (n 23), p 125, lines 9 – 14.
Following preparation of the report of 18 September 2018, Dr Chow also considered a report of Dr Kaur,[53] a report of Dr Jacobs, Forensic Psychiatrist [54] and two reports of Dr Lee, Psychiatrist.[55] He stated that none of the medical reports subsequently received altered the views he expressed in the 18 September 2018 report. Those views were that the reports demonstrated the Applicant having worsening of psychological symptoms over time since 2005 due to issues with her daughter, then workplace difficulties in 2008 and 2010 involving worker’s compensation claims and the 90 incidents reported by her.
[53] Exhibit A4, Letter from Dr Kaur, dated 05 April 2019.
[54] Exhibit A13, Report of Dr Jager, dated 21 November 2018.
[55] Reports not in evidence but obtained by the Respondent.
The Tribunal did not receive particularly helpful evidence about the nature of the 90 incidents on which Dr Chow placed some emphasis. A vague idea of what they entailed was touched upon in cross-examination of Dr Chow.[56] Some were suggested to relate to incident reports logged by the Applicant in her capacity as an Occupational Health and Safety (OHS) representative. Dr Chow did not explain what the incidents were, but instead seemed to rely on the number of “grievances/complaints” in themselves as indicative of dysfunction, as he referred to them being indicative of a personality who could not adapt to change.
[56] Transcript (n 23), p 133.
Under cross-examination, Dr Chow clarified that “personality dysfunction” was not a reference to a diagnosis of psychiatric disorder but a term used to describe aspects of personality which, in the context of stress, can cause problems with relationships in family and work.[57] He also stated that there is a psychiatric disorder under DSM -5 known as personality disorder.[58]
[57] Ibid, p 128, lines 15 – 34.
[58] Ibid, line 35.
The Tribunal sought to clarify Dr Chow’s opinion to understand whether the “personality dysfunction” he referred to was a reference to a psychological illness, ailment or disorder, or instead a descriptor of the effects of such an illness, ailment or disorder. An answer was provided that the Tribunal did not find particularly helpful.[59] At no time did he state that the Applicant suffered from a diagnosed personality disorder under DSM-5.
[59] Ibid, p 129, lines 11 – 21.
The general tenor of Dr Chow’s evidence before the Tribunal and in his later report was that the Applicant would likely have experienced the recurrence of psychological symptoms in July 2017 regardless of the PAR and the decision not to do anything in relation to the BHC made against the managers.
DID THE APPLICANT SUFFER AN AILMENT AND, IF SO, WHAT?
On the basis of all the psychiatric opinions of Dr Chow and Dr Jager, the Tribunal is satisfied that on 31 August 2017, the Applicant suffered from a recurrence of adjustment disorder. This is consistent with the concession by the Respondent.[60]
[60] Comcare, ‘Submissions of Respondent’, 18 October 2019, [2.2].
The Tribunal also accepts the views of the experts referred to above, that due to the earlier episodes of post-natal depression and episodes of anxiety related conditions in 2005, 2008, 2010 and 2016, the Applicant was particularly vulnerable to an adjustment disorder recurring.
Having observed the Applicant throughout the hearing and heard her give evidence, I find that she is a fastidious person and places great reliance on what is “right”. This is also supported by the various descriptions of her personality traits as follows –
·Ms Anderson - as obsessive and placing importance on following rules;
·Dr White – described pre-morbid personality to include liked lists, liked to be organised and could be pedantic[61];
·Dr Chow – as obsessive, perfectionistic a good thing over time can be adverse due to lack of flexibility and capacity to change[62];
·Dr Sheehan – obsessive personality.[63]
[61] T 14.3, p 111, T documents.
[62] Transcript (n 23), p 139.
[63] T 13, p 83, T documents.
Although the Applicant has the above traits, there is no evidence of a diagnosis of personality disorder. While Dr Chow’s view might support a finding that the “personality dysfunction” he identifies is an underlying pre-existing psychological condition or illness, I am not satisfied that the Applicant had such an underlying premorbid condition. However, it is quite likely that the successive episodes of adjustment disorder have reduced psychological resilience, hence making her vulnerable.
When assessed by Dr White in 2009, he stated that there was no pre-existing or underlying condition.[64] Dr Sheehan and Ms Anderson did not identify a pre-existing or underlying psychiatric condition and nor did Dr Miller.
[64] T14.3, p 113, T documents.
It is also relevant to observe that the Applicant’s history of symptoms of anxiety and depression have invariably been related to episodes of stress and difficulty in her life, such difficulties not being particularly out of the ordinary. For example, post-natal challenges, family difficulties and work stresses. Despite these, she has largely been able to rebuild relationships, has re-partnered and remained in the workforce. Accordingly, I am not persuaded by Dr Chow’s ultimate view about an underlying personality dysfunction rising to the level of a mental ailment, illness or disorder.
WAS EMPLOYMENT A SIGNIFICANT CONTRIBUTOR TO THE AILMENT?
There is clear evidence in this case that the Applicant had suffered episodes of psychological symptoms and illness in the past. I find that:
(a)In 2005 her symptoms of anxiety were primarily related to her marriage breakdown and issues with her daughter which later resolved.
(b)In 2008 she had further psychological symptoms in the context of workplace stress. She was diagnosed to be suffering an aggravation of generalised anxiety disorder.[65] She claimed compensation for this condition and it was accepted to be compensable under the Act.[66]
(c)In 2010 she also developed psychological symptoms which she attributed to employment factors. Her 2010 claim was rejected but it appears that there was limited incapacity for work and she remained at work for years thereafter, although the history recorded by Dr Sheehan notes that she has had intermittent difficulties with managing her work and has found it stressful.[67]
(d)In 2016, she had more difficulties with employment duties relating to customer debts. She made a compensation claim and liability was accepted for a closed period from 3 November 2016 to 18 November 2016.[68]
(e)The Applicant had returned to work by May 2017 and her Medical Centre records state she was coping at work.
(f)On 31 August 2017, the Applicant again suffered psychological symptoms in response to a specific identifiable stressor, namely being informed of the content of the PAR report and its recommendation which was adopted by the employer.
[65] Dr White, T14.3
[66] T14.4, p 118, T documents.
[67] T13, p 78 -80, T documents.
[68] Comcare, ‘Respondent’s submissions in reply’, 28 November 2019, [17.6].
The psychological symptoms that re-emerged on 31 August 2017 have been consistently diagnosed as an episode of adjustment disorder and occurred in the context of the factual findings above. Because of the prior episode of adjustment disorder in 2016 and the factual matrix interrelating the episodes in 2016 and 2017, I am satisfied that the Applicant suffered a recurrence of adjustment disorder and this was contributed to by a number of factors. Namely:
·Psychological vulnerability or low resilience due to past episodes of psychological disorder, some of which were employment related;
·Personality style as described by herself and others; and
·The investigation by Mr BP, the content of the PAR and the employer’s acceptance of a recommendation not to do anything about her BHC.
By virtue of section 5B of the Act, I need to be satisfied that the recurrence of the adjustment disorder experienced by the Applicant was contributed to, to a significant degree, by her employment with the Commonwealth. This involves an assessment that requires me to be satisfied that the contribution by employment was substantially more than material,[69] and it is necessary to also take into account the matters in subsection 5B(2) of the Act.
[69] Subsection 5B(3) of the Act.
Surprisingly, given [2.2] of the Respondent’s closing submissions, it did not make any specific contentions addressing whether employment significantly contributed to the recurrence of adjustment disorder, other than relying on the views of Dr Chow and seemingly urging the Tribunal to accept them.[70]
[70] Comcare (n 60), [10.1] to [10.3].
Past decisions of the Tribunal have addressed section 5B of the Act and what is involved in being satisfied that employment is a significant contribution to a disease or aggravation, including recurrence of a disease.[71]
[71] Definition of aggravation, section 4 of the Act.
In Keenan v Comcare[72] and Havnen v Comcare,[73] the Tribunal said that an evaluation of the role played by employment and non-employment factors was required.
[72] [2009] AATA 884.
[73] [2010] AATA 535.
I would add that the evaluation is both qualitative and quantitative as it is necessary to weigh the various factors to be satisfied that degree of contribution by employment factors is significant, meaning substantially more than material.
In my view, the exercise does not involve taking a last or temporal contributing factor as having more or less weight than other contributing factors. A qualitative and quantative weighing up is required guided by subsection 5B(2) of the Act, to determine if employment contributed to the disease by a significant degree. Despite this, it is not necessary to be satisfied that contribution from employment is the only significant contribution.[74]
[74] Ibid, [66].
Of assistance in determining whether employment factors have contributed to a significant degree to an injury, the statement in Comcare v Reardon[75] by Mortimer J at [36] – [40] is pertinent. It being:
“the Tribunal needs to be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.”
[75] [2015] FCA 1166.
The contributing factors to the Applicant suffering the recurrence of adjustment disorder are those I have found at [64] above. Of those factors, the Applicant’s psychological vulnerability has escalated over time and has been contributed to by various employment events, some of which led to compensable injuries. Her personality is a constant and there is no convincing evidence that it causes underlying impairment or dysfunction. I do not accept Dr Chow’s view that the Applicant suffers from an underlying psychological illness or disorder based on personality dysfunction for the reasons referred to at [59] to [62].
The contents of the PAR and the decision of the employer about it had a marked and immediate impact on the Applicant. It was very clearly the focus of the Applicant’s psychological distress at the time she became incapacitated on 31 August 2017. The Applicant in her evidence and presentation of her case referred to the earlier workplace conflicts with the managers and the many alleged wrongs in dealing with her over the customer debt issues; but it was the investigation of these by Mr BP, the PAR and the employer’s acceptance of the recommendation to do nothing that was clearly the affronting and distressing factor to her.
I am positively satisfied on the balance of probabilities that Mr BP’s investigation, PAR and the employer accepting the recommendation to do nothing further, were collectively a significant contributor to the Applicant suffering a recurrence of adjustment disorder. Further, I am not persuaded by the opinion of Dr Chow, that the Applicant would have suffered the recurrence in any event. I consider that to be speculative and based on his view that there was an underlying personality dysfunction which I have rejected.
The Tribunal was urged by the Respondent to prefer the opinion of Dr Chow over all others in respect of nature of the Applicant’s psychological condition and what caused it.[76] It contended that the evidence relied upon by the Applicant from Dr Kaur, Mr Jacobs and Dr Jager should be discounted because they were not called as witnesses and cross-examined. The Respondent did not object to the reports of these witnesses being received in evidence and could have required them to be present for cross-examination.
[76] Comcare (n 60), [10]; Comcare, (n 68), [14].
In these circumstances, the Tribunal being tasked with having to arrive at the correct or preferable decision has taken the opinions into account and cautiously analysed the views by reference to the opinions of all experts including Dr Chow. There is a considerable degree of consistency amongst all the experts and even Dr Chow fell short of expressing the opinion that the Applicant suffered a diagnosable underlying borderline personality disorder.
I conclude that the Applicant suffered a disease for the purposes of section 5B of the Act, being a recurrence of an adjustment disorder.
IS THE APPLICANT’S RECURRENT ADJUSTMENT DISORDER EXCLUDED FROM THE MEANING OF INJURY?
As I have been persuaded that employment factors, particularly Mr BP’s investigation, PAR and the employer accepting the recommendation to do nothing further, were a significant contribution to the Applicant suffering her disease, if those factors constitute reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment, the application for review must fail.
I accept that the Respondent’s submissions at [5.3] referring to Drenth v Comcare[77] and Commonwealth Bank of Australia v Reeve[78] provide a summary of some of the applicable legal principles, but others are worthy to note because the Respondent’s submissions do not address all relevant legal considerations.
[77] [2012] FCAFC 86.
[78] [2012] FCAFC 21.
For the exclusion to operate, the administrative action must be taken in respect of the employee’s employment. What is meant by “administrative action” and “in respect of the employee’s employment” was the subject of the court’s reasoning in Commonwealth Bank of Australia v Reeve.[79] Ray J said at [30] – [31]:
[30] The limits of the exclusion therefore appear to lie in the word “employment” and the word “administrative”. In the context of the exclusion, the word “employment” appears to be used in the sense of the “action or process of employing; the state of being employed” (Oxford English Dictionary) or “the act of employing” or “the state of being employed” (Macquarie Dictionary), rather than “that on which one is employed” (an alternative meaning given in both dictionaries). The history recounted in the Explanatory Memorandum to the amending Bill, and the identification in that Explanatory Memorandum of the mischief to which the amendment was directed, support this proposition. It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.
[31] The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment.
[79] At [28] and [31].
In Commonwealth Bank of Australia v Reeve, Gray J also said that it is what is done with respect to the employment relationship that the particular employee has with the employer which is excluded, unless the action taken was not reasonable or taken in an unreasonable manner[80]. Rares and Tracey JJ in a joint decision also emphasised that the administrative action referred to was that directed specifically to the employee’s employment itself as opposed to action forming part of the everyday duties and tasks performed in the job.
[80] Ibid, [33].
The Applicant had a right to make the BHC against her managers.[81] It appears from the material in evidence that the complaint made was for formal resolution.[82] By exercising her right to make the complaint, the Applicant engaged the employer’s policies and procedures to resolve the grievances she had with her managers and sought action by the employer against them. By reference to the process chart for Preventing Workplace Bullying,[83] when Mr BP was tasked with investigating the complaint, the employer’s process involved “Triage 3”, namely “Further inquiry or investigation of the matter to assess complaint substance and inform appropriate course of action.”[84]
[81] ST7, p 71, Supplementary T documents.
[82] T 14.16, p 208, T documents.
[83] T14.7, p 210 -211, T documents.
[84] T14.17, p 211. T documents.
The question is whether the investigation of her BHC, the PAR and the employer’s decision not to take action (the actions) were administrative or operational actions, and only if one was administrative and in respect of her employment,[85] would the exclusion apply.
[85] [2005] FCAFC 16.
The Respondent’s submissions proceed on the basis that the relevant actions are administrative actions, and were “in respect of the employee’s employment”. At [5.4] and [5.5] of the submissions dated 18 October 2019, the Respondent contends that the actions of the employer identified by the Applicant as the cause of her injury, were administrative. I agree, but the provisions of section 5A of the Act, do not operate to exclude liability for all administrative actions an employer takes, only those taken in respect of the employee’s employment.
In addition, at [5.8] of its submissions of 18 October 2019, the Respondent addressed the legal principles applicable to whether the Applicant’s injury resulted from the identified administrative action. While the principles themselves are no doubt correct and binding on this tribunal, the tribunal also needs to consider whether those administrative actions were in respect of the Applicant’s employment.
I have considered if the actions were in respect of relations between the Applicant as an employee and the employer or if they were the implementation of the employer’s policies generally. The investigation and the outcome of it were capable of leading to formal counselling or training and possibly disciplinary actions under the APS Code of Conduct for the managers that were the subject of the Applicant’s BHC. So, if one of the managers suffered a psychological injury and had made a claim for compensation, it is clear in my view that the actions would encompass administrative action in respect of their employment.
The Respondent referred to McGee v Comcare,[86] urging the same conclusion in this case, but the facts of that case were that the compensation claimant was the subject of the investigations which caused him stress and were capable of leading to disciplinary action, so they were administrative not operational in nature in that case.
[86] [2010] AATA 386.
As discussed at [29] above, while the Applicant was also the subject of a BHC which was investigated at the same time because the factual matrix of Ms LJ’s complaint was similar in part to the applicant’s complaint, the outcome of it was not made known until 2019. Further, there is no evidence that the Applicant suffered distress or psychological symptoms in respect of this investigation or process in July 2017. To the extent that the Respondent may urge the Tribunal to draw an inference that these factors also contributed, that has not been expressly or clearly contended and there is no evidence supporting the inference in my view.
I consider that the actions taken via Mr BP and the outcome of the preliminary investigation did not have capacity to impact on the Applicant’s employment. There was no evidence that repercussions or actions by the employer could impact on a complainant. Instead, employees had a right to complain about “matters” affecting them in the workplace without fear of criticism.[87]
[87] ST7, p 71, Supplementary T documents.
On the basis of the foregoing, I am not persuaded that the actions were administrative actions in respect of the Applicant’s employment as an employee. Having arrived at this conclusion, even if the administrative actions were reasonable and taken in a reasonable manner, they were not in respect of the Applicant’s employment and the exclusion in my view does not apply.
I accept Mr BP’s evidence that the preliminary investigation and PAR he undertook at Ms SM’s direction were an informal process adopted by the employer to enable it to determine which of apparently many complaints received under its policies, should be subject to formal Code of Conduct Investigation.[88]
[88] Transcript (n23) pp 48-50 and 73-74.
Ms SM and Mr ST held classifications as EL1 managers and by reference to exhibit R4, I am not persuaded that either had authority to direct Mr BP to undertake a preliminary investigation. Schedule 2 of exhibit R4 identifies that in respect of Conduct and Performance issues under the Public Service Act 1999, particularly establishing procedures for determining breaches of the APS Code, a Central Delegate at G2 classification has the relevant authority. I did not detect anywhere in exhibit R4 where an EL1 manager had authority to establish the procedures and take a decision or action about a BHC or whether there had been breach of the APS Code.
Subsections 15(3),15(4) and 15(5) of the Public Service Act 1999 provide:
(3) An Agency Head must establish written procedures in accordance with this section for determining:
(a) whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)); and
(b) the sanction (if any) that is to be imposed under subsection (1) on an APSemployee in the Agency who is found to have breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A))
(4) The procedures:
(a) must comply with basic procedural requirements set out in Commissioner's Directions; and
(b) must have due regard to procedural fairness.
(5) In addition, and without affecting subsection (4), the procedures may be different for:
(a) different categories of APS employees or former APS employees; or
(b) APS employees, or former APS employees, who:
(i) have been convicted of an offence against a Commonwealth, State or Territory law in respect of conduct that is alleged to constitute a breach of the Code of Conduct; or
(ii) have been found to have committed such an offence but no conviction is recorded.
There is little evidence before the Tribunal about what the procedures envisaged by the above sections of the PSA are. The Information Sheet in the T documents relating to review of actions[89] certainly refers to a delegate reviewing at the request of an employee a decision or action taken. The process outlined provides “the delegate may conduct a review themselves or request another person (Review Officer) to investigate some or all of the relevant matters on their behalf and provide a written report and recommendations for the delegate to review and make own conclusions.” However, this process applies when a decision or action has already been taken or not taken and it is that decision/action which the employee is asking to be reviewed. This process did not apply to the Applicant’s BHC because Mr BP was not reviewing an action or decision already taken, he was considering a complaint and performing an informal investigation of it as asked by Ms SM.
[89] T 14.18, p 212, T documents.
The process described in the information sheet actually occurred subsequently because the Applicant applied for a review of the decision not to do anything about her complaint, but that did not occur until after she suffered her injury on about 31 August 2017.
Accordingly, if I am mistaken that the action which resulted in the Applicant suffering a recurrence of adjustment disorder was not administrative action taken in respect of her employment,[90] I am not persuaded that such action was reasonable and taken in a reasonable manner as required for the injury to be excluded under section 5A(1) of the Act. This is because the Applicant’s BHC was not investigated and determined by a person who had apparent authority to do so. Indeed, there is no evidence about who was authorised to investigate and decide BHC under the formal resolution path referred to in the information sheet dealing with the Bullying Harassment and Discrimination Complaints Process.[91]
[90] [90] of these reasons.
[91] T14.6, p 208-209, T documents; Exhibit R3, Conduct and Behaviour policy, p 3.
When Mr ST took and/or communicated the decision not to take any action in respect of the Applicant’s BHC, he did so as EL1 manager, but there is no evidence that an EL1 manager was authorised to take the decision. For the purpose of arriving at the conclusion above, I have been conscious of the principles referred to in the Respondent’s submissions dated 18 October 2019 at [5.7]. However, in my view, for administrative action in respect of an employee’s employment to be reasonable and reasonably taken, it must be authorised and taken in accordance with a procedure lawfully established by the employer.[92] On the evidence before the Tribunal this does not appear to be so in respect of the relevant actions in this case.
[92] Drenth and Comcare [2011] AATA 582 at [75] and [76] and cases cited there; Comcare v Stewart [2019] FCA 365 at [23].
Furthermore, it is clear that the decision making process concerning the Applicant’s BHC was required to accord with the principles I refer to at [36] and [89] above.
To the extent that Mr BP’s investigation focussed on the events leading to the issuing of the letter of expectation and its withdrawal, it failed to consider the other elements of the complaint and whether some or all of these collectively amounted to “repeated and unreasonable behaviour directed towards an employee while at work that creates a risk to the health and safety of an employee”.
For example Mr BP did not address –
·Whether the Applicant had been asked to not record a customer’s second complaint and whether that was reasonable.
·Whether it was not possible, as the Applicant claimed, for the customer to access self-service and access employer data and whether Ms LJ had treated her reasonably in the interaction described at page 227 of the T documents.
·Whether Ms CD’s negative feedback of the Applicant’s performance was warranted and if Ms LJ as her manager dealt with this reasonably.[93]
·Whether the Applicant ought to have been offered a support person for the meeting on 28 October 2016 and if she wasn’t offered that, was it unreasonable[94].
·Whether Ms LJ made remarks that were unreasonably punitive at the meeting on 28 October 2016[95].
·Whether the direction said to have been given by Ms LJ to the Applicant in the meeting on 28 October 2016, not to record customer complaints, was reasonable[96].
·Whether other feedback during the meeting on 28 October 2016 had been given and whether it was proportionate to that given to other employees for similar things.[97]
·Whether Ms LJ did not approve the Applicant’s timesheets, when the Applicant was following an arrangement suggested by Ms LJ.[98]
·Whether Ms LJ behaved reasonably towards the Applicant at the meeting on 9 July 2017.
·Whether Mr BS gripped a document and caused the Applicant to withdraw[99].
·Given Ms LQ’s recommendation for formal mediation, what invitation was given to the parties about that and why it was not pursued.
[93] T 14.20, p 228, T documents.
[94] Ibid, p 229.
[95] Ibid.
[96] Ibid.
[97] Ibid, p 230 – 231.
[98] T 14.19, p 223, T documents.
[99] Ibid.
Mr BP reached the conclusion at [48] of his report that his investigations had identified a number of occasions where the Applicant’s complaints had been considered and various outcomes determined. But not all her complaints had been considered and determined and not in the context of a cumulative and collective series of interactions.
Mr BP also stated at [46] of his report that he had not made any contact with parties to the investigation, but the evidence before the Tribunal discloses that not to be the case. This is because he conducted a preliminary investigation of Ms LJ’s complaint first, which related to allegations against the Applicant about conduct at the meeting on 9 July 2017. The enquiries of all five other parties were confined to what was alleged against the Applicant,[100] and were in part used to dismiss the Applicant’s complaint.
[100] Exhibit R5, Interviews conducted by Mr BP during Preliminary Assessment.
While it may have been expedient to only take statements from the five persons once, applying principles of fairness, Mr BP ought to have asked about the allegations made against Ms LJ by the Applicant, but it appears he did not.
Further, conducting one set of interviews limited to the meeting in July 2017 and utilising those for the purpose of investigating the Applicant’s complaint also was capable of conveying a perception of bias.
The method of investigation and the use of the same investigator to investigate both complaints, in my view, does not accord with the principles applicable to the complaints management process. I find that the investigation and Mr BP’s report, if administrative action in relation to the Applicant’s employment, was not reasonable or not reasonably taken.
It follows that the employer’s adoption of Mr BP’s recommendation not to take any action in respect of the complaint by the Applicant, is tainted with the same unreasonableness, even if Mr BP was properly authorised to conduct the investigation and make a recommendation to the actual delegate who had authority to deal with the complaint.
The decision under review is set aside and the matter remitted to the Respondent for determination in accordance with these reasons.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member
...........................[sgd]...........................Associate
Dated: 18 May 2020
Date(s) of hearing: 27 - 29 August 2019 Date final submissions received: 13 December 2019 Applicant: In person Counsel for the Respondent: Mr J Wallace Solicitors for the Respondent: Comcare
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