Prudence Gaffey and Comcare
[2014] AATA 659
•10 September 2014
[2014] AATA 659
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3171
Re
Prudence Gaffey
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 10 September 2014 Place Canberra The decision under review is affirmed.
..........................[sgd]..............................................
RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employee – diagnosis of claimed psychiatric condition – deemed date of injury – whether employment contributed to a significant degree – whether condition was suffered as the result of reasonable administrative action taken in a reasonable manner.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B.
Cases
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia Ltd v Reeve (2012) 199 FCR 463
Wiegand v Comcare Australia (2002) FCA 1464Seondary Materials
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Prudence Gaffey, born 1954, has applied for review of a reviewable decision by Comcare dated 28 June 2013 to deny her compensation for ‘major depressive disorder, single episode’.
Ms Gaffey’s application was received by the Tribunal on 3 July 2013. The matter was heard in Canberra on 21 and 22 July 2014.
Background
Ms Gaffey has been employed in the Australian Public Service for twenty years. At the time of these events she was an Executive Level 1 (EL1) officer in the Department of Sustainability, Environment, Water, Population & Communities (agency) and had been at that level for some ten years. She had worked in two divisions in the agency.
Ms Gaffey has accepted injuries, including to her back, which occurred in 2009. By 2010 the effects of the injury had developed into a chronic pain condition with secondary depression and anxiety. She also has thoracic scoliosis (curvature of the spine in the thoracic or mid-back region), and torticollis (a wry neck leading to an asymmetric neck or head position).
At all material times Ms Gaffey was on a return to work program, gradually increasing her work hours.
In February 2012, Ms Gaffey moved to a new work area in the agency. At the mid-year performance assessment in July 2012, her manager, Ms Joanne Nathan, rated Ms Gaffey ‘3-Satisfactory’ for the period to 30 June 2012. As Ms Nathan had to cut short the performance assessment meeting, it was agreed to schedule a further meeting to discuss the work plan for the next year, a standard element of the assessment process.
That further meeting was held on 20 August 2012. Present at the meeting were Ms Gaffey, Ms Nathan and Ms Pieta Laut, Ms Gaffey’s mentor since 2011, attending apparently at Ms Gaffey’s request. Ms Nathan said the meeting was to clarify Ms Gaffey’s understanding of the requirements for the work plan, for the tasks for that financial year, and the standard of performance for each task. Ms Laut recorded the proposed work plan on a whiteboard which was run off and attached to Ms Gaffey’s performance development documentation. Ms Laut left the meeting when she could make no further contribution. At the meeting, Ms Gaffey alleges that Ms Laut made upsetting comments about Ms Gaffey’s appearance of pain, tiredness, grumpiness, absence of passion for, or interest in, her work.
Ms Gaffey attended her general practitioner, Dr Fraser, on Monday 23 August 2012. Dr Fraser’s clinical notes state ‘Some stress at work; new job, feeling some pressure to perform from woman she has asked to mentor her – the latter is high performing; although current boss is supportive’.
At a meeting with her mentor on 30 August 2012, Ms Gaffey again alleged that Ms Laut made inappropriate, negative and upsetting comments about her physical appearance and the impression created in relation to Ms Gaffey’s work attitude and ability.
Ms Gaffey discussed her concerns about the two meetings at a meeting with her rehabilitation case manager, Ms Chi Chu, held after the August meetings but before Ms Gaffey’s leave in October. The meeting was also attended by Ms Chu’s supervisor, Mr Anthony Wickens. Ms Chu and Mr Wickens advised Ms Gaffey to talk to her manager, Ms Nathan, before she went on leave on 22 October 2012 about her concerns relating to the 20 August meeting.
Ms Gaffey had a meeting with Ms Nathan on 17 October 2012. She says she asked Ms Nathan if she wanted to talk about issues Ms Laut had raised at the 20 August 2012 meeting. She said Ms Nathan’s reaction led her to believe there were no issues. Ms Gaffey says after the meeting she rang Ms Chu to report that her manager was happy with her work. Although at the hearing Ms Nathan said she could not recall the conversation on 17 October 2012, the Tribunal is satisfied, given Ms Gaffey’s reaction and reporting back to Ms Chu, that the conversation took place.
Ms Gaffey was on leave from 22 October for a week, then back at work for a week and on leave again until 26 November 2012.
Ms Gaffey attended Dr Fraser on 23 October 2012 and the clinical notes of that appointment state:
Difficult issues at work – net results she feels stuck and quite depressed again – mentor gave her a very negative assessment, clearly lacked understanding of chronic pain and implying that Prue lacked passion for her work, or that because of her posture, Prue is not performing – Prue says this woman is highly influential with her boss – inc[reasing] demands with this position which consists of roles that used by be done by more than one person’.
In August 2012 Dr Fraser had discussed anti-depressants with her but Ms Gaffey was reluctant to accept that form of medication as she was concerned about its long term effects. She also has a family history of a condition which led to vulnerability to development of dementia in conjunction with anti-depressant medication. At the October consultation, however, she agreed to consider natural therapies used for cases of depression and poor sleep.
On 3 December 2012, at another catch up meeting, Ms Nathan indicated to Ms Gaffey that she was considering performance rating her at 2, a rating indicative that Ms Gaffey’s performance was developing at level in a new job. However, she informed Ms Gaffey that she would seek advice about the appropriate scale. Ms Gaffey claims Ms Nathan said this was temporary, not expected to be permanent, and Ms Gaffey was coming up to speed with the job.
On 11 December 2012 Dr Fraser’s clinical notes state:
‘struggling at work, really stressed – now told she is underperforming; however, Prue’s perspective is that she was brought in to do a job which has expanded far beyond what she was originally told. Also that her job used to be done by 3 people and that someone also has left and she’s been asked to pick up extra work. Feels that performance issues have focused on her personal appearance ie that she looks like she is in pain and not enjoying herself – which is because she is in pain and stressed – really worried about losing her job (and work has been a really important part of Prue’s identity) – sleeping only 4-5 hrs a night despite 2 Stilnox.’
Dr Fraser suggested she trial the natural medications for depression and poor sleep she had earlier recommended.
On 19 December 2012, Ms Gaffey was told that, following advice, Ms Nathan had rated Ms Gaffey as ‘1 – not performing’. Ms Gaffey also claimed that Ms Nathan had rebadged the meeting of 20 August 2012 as a performance management meeting.
Ms Gaffey says she was told by a colleague that staff cuts would be used to get rid of older or sick people, people on long term leave, or those not performing under the Performance Development System. She said this reinforced her distress and anxiety.
At a consultation on 31 January 2013, Dr Fraser’s notes state:
Still very stressed at work – trying to focus on work to please boss, is very afraid that she will lose her job due to ‘performance issues’ – says she has now been told that the session with her supervisor and mentor last yr during which she was criticised for not appearing to be engaged and motivated was a formal counselling session and that she is being performance managed: has a sense that her boss does not want her – wants to work but workplace sounds quite toxic for her and unsupportive, has a case manager and had talked about finding a different workplace soon after starting this one in Feb 012 but was encouraged to stick with it – will talk to case manager again re finding another job.
Ms Nathan was on leave from 21 December 2012 to 3 February 2013. On her return she emailed Ms Gaffey requesting her to process the electronic paperwork for her performance assessment. Ms Gaffey replied that she wished to respond to Ms Nathan’s assessment and needed time to do so because of her medical condition.
On 6 February 2013, Ms Nathan approached Ms Gaffey in person asking her to process the paperwork. Ms Gaffey obliged.
The clinical notes of Dr Fraser following a consultation on 6 February state:
Still highly distressed – was a bit better at work for a few days while boss away, now struggling to function again. Perceives boss as angry with her. - Will be seeing case manager after this appointment to discuss work situation and alternatives – also going to the union. This distress has been ongoing since Aug 012 session with boss in which she felt criticised re her appearance. Says that boss now says this was a performance m’ment session and Prue is terrified of losing her job. Aware that her ability to concentrate and produce work is impacted by anxiety/depression; increased distress with various events at work in last 2 months or so’.
Dr Fraser certified Ms Gaffey as unfit for work from 6 February 2013 to 18 February 2013 and later extended the certificate. Subsequently Ms Gaffey has been certified unfit for work and has not returned to the workplace.
Evidence was provided that the agency Performance and Development Scheme Policy states that a performance agreement for someone on a graduated return to work requires the following:
The PDS (Performance and Development Scheme) process for employees on a graduated return to work (GTW) program (both compensable and non-compensable) needs to be conducted in a supportive manner that encourages and assists rehabilitation where required. If you are on a GTW program you and your manager should seek advice and assistance from your rehabilitation case manager in developing your performance agreement. The performance agreement will only include KRAs (key results areas) and performance expectations that can realistically be achieved, taking into account the hours you work, any restrictions on your work and the vocational goals and timeframes in the GTW plan.
Ms Gaffey’s contention is that this policy was not taken into account in her case.
Ms Gaffey lodged a claim for compensation for severe depression and anxiety, dated 20 August 2012, for which she sought medical treatment from Dr Fraser, on 23 August 2012. The claim was said to be due to inappropriate comments by Ms Laut, at a meeting with Ms Nathan and Ms Gaffey on 20 August 2012. The comments were said to relate to negative and upsetting personal remarks about Ms Gaffey’s physical appearance, work attitude and ability.
Legislation
The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) and the relevant provisions are sections 4(1), 5A, 5B.
Issues
The issues are:
·What is the diagnosis of the claimed psychiatric condition?
·What is the deemed date of injury of the condition?
·Did Ms Gaffey’s employment contribute to the condition to a significant degree?
·Is any compensation excluded because the condition was ‘suffered as a result of reasonable administrative action taken in a reasonable manner’ (s 5A(1), (2))?
Consideration
Diagnosis
Ms Gaffey made a claim for severe depression and anxiety. The claim was dated 16 February 2013. At the hearing, it was accepted that the claim was one for aggravation of a pre-existing psychiatric condition.
Dr Fraser provided a number of medical certificates which indicated that Ms Gaffey was experiencing an increase in depression, anxiety and stress symptoms since August 2012. In particular Dr Fraser certified that Ms Gaffey suffered severe depression and anxiety occurring after a meeting on 20 August 2012 due to workplace stress.
Her specific diagnoses were: ‘1. Generalised anxiety disorder and 2. major depression’. Dr Fraser also noted that her DASS [Depression, Anxiety and Stress Scale] scores of 14 March 201[3] were ‘extreme’.
Ms Gaffey’s treating psychologist, Ms Marion Swetenham, in a report dated 20 March 2013, diagnosed Major Depressive Disorder, and said that Ms Gaffey had symptoms of generalised anxiety disorder with panic attacks and agoraphobia. According to the Beck Depression Inventory she said Ms Gaffey had severe symptoms, and her DASS scores for depression, anxiety and stress, were ‘extremely severe’. She recommended weekly or twice weekly sessions with herself at that time.
Dr John Saboisky, consultant psychiatrist, provided a report for Comcare dated 18 September 2013. He referred to ‘the diagnosed condition of Major Depressive Disorder and Generalised Anxiety’, resulting from chronic back pain.
In its reviewable decision dated 28 June 2013, Comcare accepted that Ms Gaffey suffered from a major depressive disorder and generalised anxiety.
The medical, including psychiatric and other evidence supports the diagnosis of major depressive disorder and generalised anxiety, a condition that was an aggravation of a secondary psychiatric condition which had been accepted by Comcare as compensable in 2010. The Tribunal finds that Ms Gaffey was suffering from an aggravation of those conditions. In accordance with the Act a psychiatric condition is classified as a ‘disease’.[1] A disease is only compensable if it meets the criteria for an ‘injury’ in the Act.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
Date of injury
Section 14 of the Act provides for compensation for a work-related injury provided ‘the injury results in … incapacity for work, or impairment’. An ‘impairment’ ‘means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’. Ms Gaffey was suffering an ‘impairment’, namely, a malfunction of her cognitive ability and on the basis of the medical evidence and the evidence of Ms Gaffey, the Tribunal so finds.
Ms Gaffey, in her workers compensation claim, dated her symptoms as first being apparent on 20 August 2012, and said she had first sought medical treatment for the condition on 23 August 2012. The reviewable decision found that the condition did not incapacitate her for work until 6 February 2012, being the date of injury.
Dr Saboisky said the injury was ‘outside the boundaries of normal mental functioning and behaviour in December 2012’.[2] In other words, she was impaired in her cognitive ability and was suffering an impairment by December 2012.
[2] Comcare v Mooi (1996) 69 FCR 439 at 446.
In a report dated 21 March 2013, Dr Fraser said that from August 2012 ‘overall the pattern is one of increasing distress, starting in August 2012, and accelerating from December 2012, leading up to the presentations of 6/2/13, 14/2/13 and 14/3/13 when Ms Gaffey was in a state of high distress’.
Ms Swetenham did not reassess Ms Gaffey until March 2013 so she cannot judge whether Ms Gaffey was impaired prior to her assessment.
The Tribunal notes that although Ms Gaffey has nominated 20 August 2012 as the date of injury, that injury did not then incapacitate her for work. As Dr Fraser said although she was initially distressed about the comments in August 2012, and took steps to discuss the matter with her case manager and her director, she had spoken with her supervisor and believed, by October 2012, following that conversation that Ms Nathan was not concerned about the remarks made in August. Ms Gaffey then took two periods of leave until November 2012.
On 3 December 2012 Ms Nathan indicated she might downgrade Ms Gaffey’s rating. On 19 December 2012 Ms Gaffey was informed that she was to be rated at the lowest level. From December 2012 Ms Gaffey also commenced taking the recommended therapies for her depression, anxiety and inability to sleep. In other words she became more significantly distressed in December 2012.
However, during January when her supervisor was away she said she recovered a little, and it was not until 6 February, after her supervisor’s return and when she was pressed by her to complete paperwork for the performance development process that she became incapacitated for work or impaired. As Dr Fraser said when certifying her unfit to work on 6 February 2013 ‘Prue is too fragile to function at present’.
Although Ms Gaffey may have suffered cognitive difficulties in the latter part of 2012, that impairment did not incapacitate her for work until February 2013. For that reason the Tribunal finds that the 6 February 2013 is the date of injury.
Did Ms Gaffey’s employment contribute to the condition to a significant degree?
Ms Gaffey was suffering from a major depressive disorder and generalised anxiety. The condition is an ‘injury’, namely a ‘disease’ for the purposes of the Act.[3] To be compensable the disease must be ‘contributed to, to a significant degree, by … employment’.[4] There are two issues involved in responding to this question: did Ms Gaffey’s employment contribute to her suffering the disease; and if so was that contribution to a significant degree.
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1) and 5B(1).
[4] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(1).
There is no doubt, on the evidence of Ms Gaffey, as corroborated by Dr Fraser, that events in the workplace made a contribution to the development of Ms Gaffey’s major depressive disorder and generalised anxiety. The issue is whether that contribution was significant, that is to ‘a degree that is substantially more than material’.[5]
[5] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).
That second issue is complicated in this instance because Ms Gaffey had a pre-existing chronic pain syndrome with depression or adjustment disorder as a secondary accepted condition. That secondary condition had been accepted to have arisen in 2010. The Tribunal notes that Ms Gaffey’s earlier diagnosed psychiatric condition was a secondary condition, variously described as an adjustment or depressive disorder.
Dr Fraser noted of Ms Gaffey’s pre-existing condition that ‘the chronic pain problem certainly contributes to Ms Gaffey’s psychological vulnerability and the mood and anxiety disorders are linked to the chronic pain issue, but not in any simple way’.
Ms Swetenham noted that her current work situation ‘has reactivated anxiety and depression [experienced in 2010], however, her symptoms of depression and anxiety this time are much more severe’.
Dr Saboisky considered she ‘would still be suffering from chronic pain and depression today’ but the symptoms were ‘made worse by the negative commentary by the mentor in August 2012’.
In the clinical notes of Dr Fraser commencing in August 2012, apart from Stilnox for sleep problems, Ms Gaffey was not on any medication for her depression, but was taking pain relief medication for her back condition. On 2 August 2012 Dr Fraser discussed the need for anti-depressant medication and whether Ms Gaffey should be seeing a chronic pain specialist. Dr Fraser’s clinical notes state ‘Given functioning fairly well on current regime and no real change I continued current restriction/treatments. Flagged with Prue that may be worth considering changes in the future and some problems with long-term opiates’.
The Tribunal finds that in August 2012 Ms Gaffey’s depression was not causing her to be impaired, nor to incapacitate her for work. All the medical reports indicate that she had an underlying vulnerability to development of a major depressive disorder due to her pre-existing condition. However, their reports indicate that in the subsequent months her symptoms were ‘made worse’ (Dr Saboisky), are much more severe’ (Ms Swetenham), and ‘are linked but not in any simple way’ (Dr Fraser).
The result was that by no later than February 2013, the events in the workplace led to Ms Gaffey being rated on psychological assessment tools as being in the ‘severe’ or ‘extreme’ range, and she became too fragile to continue to work. There was no evidence of other stressors in Ms Gaffey’s life which contributed to her condition.
As a consequence the Tribunal finds that the events in late 2012 and early 2013 in Ms Gaffey’s workplace contributed to a significant degree to the exacerbation of her psychiatric condition and led to her being incapacitated for work.
Is any compensation excluded because the condition was ‘suffered as a result of reasonable administrative action taken in a reasonable manner’ (s 5A(1), (2))?
The final issue is whether liability to pay compensation for Ms Gaffey’s condition is excluded because the condition was suffered ‘as a result of reasonable administrative action taken in a reasonable manner in respect of’ her employment.[6]
[6] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1).
Ms Gaffey’s contentions were that the exclusionary provisions in section 5A(2)(a) and (b) of the Act did not apply because:
The alleged performance management (allegedly starting from August 2012) was neither reasonable nor was it taken in a reasonable manner.
·[Ms Gaffey] was rated ‘3 – satisfactory’ in the previous cycle ending 31 June 2012 by Ms Nathan and was never advised she was under performance management at the commencement of the new cycle from 1 July 2012.
·The meeting on 20 August 2012 was neither intended to be a performance management meeting nor was [Ms Gaffey] so notified beforehand.
·Such meeting was retrospectively ‘re-cast into’ a performance management meeting by the Agency in December 2012, after Ms Nathan had consulted Corporate, presumably to warrant an unjustifiably low performance rating of [Ms Gaffey] (‘1 – not performing’). Corporate allegedly advised Ms Nathan that employees are required to meet standards set out in performance agreements regardless of a return to work program being in place.
In contravention of the Agency’s Performance and Development Scheme Policy, the PDS process for [Ms Gaffey] was not conducted in a supportive manner, nor did it take into account … the fact that [Ms Gaffey] was at all material times on a return to work program with a compensable chronic pain condition. [Ms Gaffey] was given [a] fulltime workload on her reduced hours in February 2012 and was given the extra work of 2 colleagues in August 2012.
Comcare contended as follows:
·If [Ms Gaffey’s] condition was caused by perceived negative commentary made by Ms Laut, the condition does not meet the definition of disease in the SRC Act as the perception does not relate to an incident or state of affairs that actually occurred.[7]
·In the alternative, [Ms Gaffey’s] case is excluded by operation of the exclusionary provisions in section 5A of the SRC Act. [Ms Gaffey’s] performance development process, including the meeting on 20 August 2012, subsequent meetings between [Ms Gaffey] and Ms Nathan and the allocation of [Ms Gaffey’s] mid-cycle development rating were reasonable administrative actions, taken in a reasonable manner.
The Tribunal rejects Comcare’s first contention. The incident to which reference is made refers to the comments Ms Laut is alleged by Ms Gaffey to have made at a meeting on 20 August 2012, and repeated at a mentor meeting on 30 August 2012. Ms Laut denies making the remarks. The remarks said to be attributable to Ms Laut were listed by Comcare as:
‘you look as though you have no energy’, ‘your look tired’, ‘you look in pain’, ‘you look like you have no vigour’, ‘you look as though you have no passion for the work’, ‘you don’t look like you are interested’, ‘you look as though you have no interest in driving the program’, ‘I think you don’t handle stress’, ‘I don’t think you have any passion for the work’ and ‘I think you like to be comfortable’.
[7] Wiegand v Comcare Australia (2002) FCA 1464 at [31] per Doussa J.
The Tribunal does not accept Ms Laut’s version of events and her denial that she said these or similar remarks. Ms Laut admitted at the hearing that she left the agency in early 2013 and had not seen Ms Gaffey’s statements so was unaware of the particulars of her claim. She had destroyed her notes of any meetings with people being mentored before she left, including a summary of the notes in relation to Ms Gaffey that she had made in March 2013. Accordingly she was relying on her memory some fifteen months after the events. She said she was mentoring some 40 people so details of her contact with each person was likely to be indistinct and she admitted she could not recall the details of the 20 August 2012 meeting without reference to her notes.
By contrast Ms Gaffey kept three diaries: a work diary; a personal diary; and a pain diary. There are records in the spaces listed for 20-23 August 2012 of the meeting and a recording of some of remarks; those remarks were expanded in records she made in early September with reference to the comments made at both the 20 August and the 30 August meetings. Pertinently, Ms Laut admitted in evidence that her role as a roving executive officer meant she moved around the agency regularly and would make remarks to people such as ‘Smile, it’s not that bad’, indicative of the remarks she was prone to make.
The Tribunal also notes that, objectively, the remarks recorded by Ms Gaffey are the kind of remarks which a mentor would make to a person being mentored. They can be interpreted as feedback designed to assist someone to project themselves better so as to improve the perceptions others have of the person. Accordingly the Tribunal accepts that the remarks were made by Ms Laut.
Furthermore, if it had been necessary, the Tribunal would have found that Ms Laut’s words created a perception in the mind of [Ms Gaffey] (whether reasonable or unreasonable in the thinking of others) and the perception did contribute in a material degree to an aggravation of her ailment.[8] Ms Gaffey was shocked by the feedback and it has preyed on her mind subsequently as her diaries and evidence, and the evidence of her general practitioner, attest.
‘Reasonable administrative action taken in a reasonable manner’
[8] Ibid.
Comcare also argued that the claim was excluded on the grounds that Ms Gaffey’s condition was not compensable because it was ‘suffered as a result of reasonable administrative action taken in a reasonable manner’ by her employment.[9]
[9] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1).
The first issue is whether the actions causing concern to Ms Gaffey during the latter part of 2012 until February 2013 were ‘administrative actions’. The claim focused on whether the actions by Ms Nathan and Ms Laut related to Ms Gaffey’s formal performance management under the agency’s Performance and Development Scheme Policy.
The concept of ‘administrative action’ refers to actions taken by an agency specific to an employee and which relate to the employment relationship,[10] that is, ‘action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment’.[11]
[10] Commonwealth Bank of Australia Ltd v Reeve (2012) 199 FCR 463 at 473, 474 per Gray J.
[11] Ibid at 482 per Rares and Tracey JJ.
The actions taken by Ms Nathan and by Ms Laut such as those relating to Ms Gaffey’s performance development (the subject of the meetings of 20 August 2012, 3 December 2012, 19 December 2012), and the requirements by Ms Nathan in early February 2013 that Ms Gaffey complete the documentation for the performance development process are actions specifically relating to Ms Gaffey, and relate to matters concerning her employment rather that matters of a policy or operational nature. Accordingly they are administrative actions.
Meeting of 20 August 2012
The next issue is whether those actions were reasonable and taken in a reasonable manner. The first meeting was on 20 August 2012. Ms Nathan had been unable to complete the performance development mid-year process with Ms Gaffey and scheduled another meeting in order to do so. The expectation was that this was a meeting to assist Ms Gaffey to complete her work plan for the next year.
There was some dispute about whether Ms Laut’s attendance at that meeting was appropriate since it was intended to be a meeting between Ms Gaffey and her supervisor. There is also dispute about whether Ms Gaffey suggested that Ms Laut attend the meeting or whether it was an initiative of Ms Laut. In any event, Ms Laut’s attendance was not unreasonable since Ms Gaffey had agreed to her presence, Ms Laut had experience of a key aspect of Ms Gaffey’s work plan, and Ms Gaffey had had difficulties getting to see her mentor.
The expected outcome of the meeting was to flesh out Ms Gaffey’s work plan and according to Ms Nathan, to discuss work performance. The first outcome was fulfilled since Ms Laut recorded the elements of the plan on the whiteboard, and this was included in Ms Gaffey’s performance development documentation. Ms Laut also left the meeting at that stage. That was reasonable behaviour.
At first sight the personal comments Ms Laut made concerning Ms Gaffey were not reasonable. Nor would they have been reasonable if this meeting had been solely to develop a work plan. However, Ms Nathan said the meeting was also to discuss expectations of standards and timelines, that is, work performance. In that context, broader discussions about future performance could be expected and were not unreasonable.
It is not known what triggered Ms Laut’s comments at that meeting. This did not emerge during the hearing, nor is it apparent from statements made by any of the participants. As discussed earlier, however, the comments are precisely the kinds of comments which could be expected by a mentor in response to discussion about barriers to, and improvements which could be made to, the performance of a person being mentored. So in that context and in the context of discussions about performance issues the remarks were not unreasonable.
It would be unreasonable to have raised performance if the discussion of performance issues was unexpected. Ms Gaffey’s work diary refers in the lead-up to the meeting to ‘PDS [performance development scheme] 2012-2013 – due end of Aug’ [entry for 9 August 2012), and to ‘PDS 2012-13’ and ‘Prue-work plan’ (entry on 17 August 2012). So there are clear references by Ms Gaffey in her diary before the meeting that Ms Gaffey was expecting that the work plan would be an element of the discussion.
Ms Gaffey had been a member of the Australian Public Service for twenty years and at an EL1 level for 10 years. She would know from that experience that the PDS discussions can be broad ranging and that even in the context of development of a work plan, performance weaknesses and how to correct them are often central. In that context, it was not unreasonable for such discussions to have occurred regardless of whether the performance aspects of the meeting were flagged in advance.
Meeting of 30 August 2012
There is little evidence, apart from Ms Gaffey’s records, of this meeting. It was a scheduled mentoring meeting, so it was not unreasonable for the meeting to be held. The remarks about her personal appearance made again , according to Ms Gaffey, by Ms Laut were not unreasonable for the reasons indicated earlier. They are remarks which are consistent with the role of a mentor.
Meeting of 3 December 2012
Ms Nathan warned Ms Gaffey at this meeting that for the end of year assessment, she was considering giving Ms Gaffey a rating of ‘2 – developing at level in a new job’. However, she had to seek advice from the human resources section before finalising the matter. Ms Gaffey was, accordingly, notified in advance of Ms Nathan’s thinking, a reasonable step.
Moreover, following the meetings in August 2012, Ms Nathan and Ms Gaffey, at Ms Gaffey’s request, had been having meetings roughly each week. At those meetings Ms Nathan said she was attempting to provide guidance and support to Ms Gaffey to assist with her performance issues. In her opinion Ms Gaffey would have understood that at each of those meetings she was giving her feedback about issues of performance so Ms Gaffey would have understood that there were concerns about her standards of performance. The Tribunal accepts that this feedback occurred.
Ms Gaffey had also been aware of concerns about her performance at least since the meetings in August 2012. Ms Gaffey’s diary entries refer to her being scared about the future because as she said ‘are they trying to get rid of me’. That was a not unreasonable fear in the context of reduction of staff in the Australian Public Service at this time in the context of efficiency dividend demands on agencies.
Ms Gaffey’s concern was sufficient to lead her to consult her case manager, Ms Chu sometime early in October, who in turn involved Mr Wickens, an indicator that Ms Chu regarded Ms Gaffey’s account as sufficiently serious to warrant a level of attention by her superior. Together these advisers persuaded Ms Gaffey not to wait until she had returned from leave in November, but to see Ms Nathan before she went on leave.
Ms Nathan’s reaction led Ms Gaffey to believe Ms Nathan had no issues of the kind raised by Ms Laut, as she reported to Ms Chu, suggesting Ms Gaffey’s worries had been assuaged, that assumption is countermanded by evidence from the clinical notes of Dr Fraser. The notes recorded Ms Gaffey telling Dr Fraser on 23 October 2013 ‘Difficult issues at work – net results she feels stuck and quite depressed again – mentor gave her a very negative assessment’, including ‘Prue is not performing’. Mention is also made of Ms Laut’s influence over Ms Nathan. So Ms Gaffey was aware of her performance issues by October 2012. That means the news given to Ms Gaffey by Ms Nathan on 3 December 2012 would not have been unexpected and accordingly was not unreasonable.
Dr Fraser’s clinical notes for 11 December 2012 also reflect Ms Gaffey’s awareness that she had performance problems. The notes state ‘struggling at work, really stressed – now told she is underperforming’. So although the clinical notes indicate Ms Gaffey’s recurring complaint that the remarks about her appearance were being used – unjustifiably in her view - as a measure of her performance, she has indicated her knowledge that at least by August 2012 and certainly from October 2012 Ms Gaffey is ‘struggling’ and may be found to be underperforming.
Meeting of 19 December 2012
In those circumstances, although Ms Gaffey’s evidence was that when she was notified of Ms Nathan’s final rating of ‘1 – not performing’ on 19 December 2012, ‘it hit her like a bus’, there is evidence to indicate that she was already aware that this news was imminent. In those circumstances, Ms Nathan’s actions, which were considered and only taken after advice, cannot be considered to be unreasonable. Nor was there any suggestion that the information was conveyed in an unreasonable manner. Generally, Ms Gaffey’s notes indicate she had been grateful for Ms Nathan’s support and her criticisms were focused on Ms Laut’s actions rather than those of Ms Nathan.
Conclusion
On balance, the Tribunal finds that although Ms Gaffey’s condition was significantly contributed to by her employment, the Tribunal is not able to be satisfied that the administrative actions involved in that significant contribution were unreasonable or undertaken in an unreasonable manner. That means the exclusionary provisions apply and Ms Gaffey’s condition is not compensable as an ‘injury’ under the Act.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member ......................[sgd]..................................................
Associate: S. Wardell
10 September 2014
Date(s) of hearing 21 & 22 July 2014 Counsel for the Applicant Steven Whybrow Advocate for the Applicant David Lander Solicitors for the Applicant Lander & Co. Counsel for the Respondent Rhonda Henderson Advocate for the Respondent Stuart Marris Solicitors for the Respondent Sparke Helmore
0
4
0