Rajendra Kolige Srinivas and Telstra Corporation Limited
[2012] AATA 406
•29 June 2012
[2012] AATA 406
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/1235
Re
Rajendra Kolige Srinivas
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 29 June 2012 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
Catchwords
COMPENSATION – psychological injury - whether reasonable administrative action – whether taken in a reasonable manner
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14
Cases
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
Regina Perton, Member
1.Mr Rajendra Kolige Srinivas has worked for Telstra Corporation Limited (Telstra) or its subsidiaries since December 2005. He initially sold advertising in The Trading Post, a publication in which individuals and companies listed new and second-hand items for sale. In October 2009 the print version was closed and staff members of The Trading Post were offered positions in a division of Telstra or were retrenched. Mr Srinivas went from a telephone‑based position to one where he visited potential clients on-site in an effort to convince them to advertise in an online publication. Some meetings were by appointment but at other times, he would cold-call potential purchasers.
2.Mr Srinivas was a high achiever when working with the print version of The Trading Post. His excellent results continued when he first transferred to Telstra. However, Mr Srinivas’ performance subsequently deteriorated. Mr Srinivas believes that the performance criteria applied to his work were too harsh. He also believes that he had been discriminated against in relation to the available positions at Telstra and bullied by a supervisor.
3.Following a meeting with his manager on 14 October 2010, Mr Srinivas was diagnosed with a stress disorder. He was away from the workforce for several months, eventually returning on a return to work program. Telstra accepts that his medical condition is work-related but submits that it is not compensable as the condition arose due to reasonable administrative action undertaken in a reasonable manner.
4.Mr Srinivas made his claim for compensation on 30 November 2010. His claim was rejected on 25 January 2011. Mr Srinivas requested reconsideration on 8 February 2011. The original decision was affirmed on 15 February 2011. Mr Srinivas lodged an application with the Tribunal on 4 April 2011.
5.The issues before the Tribunal are:
·Whether Mr Srinivas suffers from an injury, namely a disease, for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act)?
·If Mr Srinivas does suffer from an injury, was that injury suffered as a result of reasonable administrative action?
·If so, was the reasonable administrative action taken in a reasonable manner in respect of his employment?
LEGISLATION
6.Sections 5A and 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provide:
5A Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee's performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c)a reasonable suspension action in respect of the employee's employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(2) In this Act:
significant degree means a degree that is substantially more than material.
Ailment is defined in section 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 14 of the SRC Act provides:
14Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
DID MR SRINIVAS SUFFER FROM AN INJURY FOR THE PURPOSES OF THE SRC ACT?
Telstra documents include an Incident Report lodged on 8 November 2010 by, or on behalf of, Mr Srinivas. Mr Srinivas signed a formal claim for workers compensation on 30 November 2010. In the form, he gave the date of injury/illness as 18 October 2010. He described his injury as Stress disorder, Depression. In response to a prompt question asking him to describe the sequence of events leading to the current injury/illness and the body part(s) affected, Mr Srinivas stated: Due to Harassment, Bullying and Racial discrimination – stress going on for a long time.
Mr Srinivas was not at work from 18 October 2010 until 20 June 2011. He attempted to resume his normal working hours on 22 November 2010 but lasted only three hours.
Mr Srinivas stated that initial medical treatment for his condition occurred on 18 October 2010. On that day, Mr Srinivas’ general practitioner, Dr S H Reddy, provided a medical certificate stating that his patient was unfit for work from 18 October 2010 to 22 October 2010. Further medical certificates and Certificates of Capacity which certified Mr Srinivas as unfit for work were issued until there was an agreed return to work plan some months later. Dr Reddy and Dr John G King, a psychiatrist to whom Mr Srinivas was referred by Dr Reddy in late October 2010, both diagnosed Mr Srinivas as suffering from depression and anxiety directly related to his employment.
On 25 January 2010, Telstra accepted that Mr Srinivas suffered from an injury as defined in s 5B of the SRC Act, namely depression as diagnosed by Dr Reddy and Dr King.
Almost a year after the injury, on 4 October 2011, Mr Srinivas was examined by Dr N R Rose, psychiatrist, at the request of Telstra. Dr Rose concurred that Mr Srinivas still suffered from a psychiatric injury which had been significantly contributed to by his perception of bullying and harassment at work.
None of the doctors were called to give evidence as Telstra was satisfied that Mr Srinivas suffered from an injury, namely a disease, which was significantly work related.
Having considered the evidence, the Tribunal is satisfied that Mr Srinivas suffered from depression and/or an anxiety disorder which was contributed to, to a significant degree, by his employment with Telstra.
WAS MR SRINIVAS’ INJURY AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION?
Mr Srinivas’ lengthy sick leave followed a one on one meeting with his manager, Matt Wilson, on 14 October 2010 to discuss performance related issues.
On 22 October 2010, Mr Srinivas sent a lengthy email to the Human Resources Team at Telstra Media Classifieds concerning Harassment, Bullying and Discrimination. He set out details of what he believed had been poor and discriminatory practice in the transition from the Trading Post to Telstra Media Classifieds. He recounted promotions and appointments of staff junior to him to positions which he would have liked the opportunity to pursue. He described his motivation in writing the letter as:
…After much thought I had to write this letter as I feel that I am now under a lot of pressure and feel insecure and unappreciated. The unnecessary pressure and fear has exhausted me completely and has tested my patience fully. I can no longer work in these conditions because all the harassment and stress which is going on for a long time is taking a huge toll on my health which in turn is not only affecting myself but also my family, which is very important to me.
They say that working hard and staying positive pays but it appears that nothing I have done and currently doing seems to satisfy my manager…
…
For [the] last 3 months I have been harassed quite often, bullying in regards to my performance and output, has become a common occurrence. As a result I have not had a good night sleep, get severe headaches and feel nervous around the work place. This has now resulted in ill-health and I feel that it is impacting on both my home and work life leaving me unable to concentrate in closing sales which resulted drop in my performance.
Something as trivial as Business Cards is yet another example of some of the issues I had to deal with Matt to just perform my job. I have constantly asked to business cards after running out. I have run out of business cards for 2 months and Matt is aware of this but perhaps he feels that this is an unimportant tool for me to have.
Recently in my Performance appraisal meeting with Matt Wilson he mentioned that my set appointments should be 25 per week. I fail to understand how he arrived at this figure and I have written him regarding this a copy of which will be copied to you.
…
Mr Bryan Yianakis, National Sales Director for Telstra Media Classifieds, gave oral evidence and provided a written statement dated 16 November 2011, stating:
…
2.In late 2009, a number of staff members were made redundant because of a restructure of business. In particular, the printed version of the Trading Post was discontinued and new digital products were launched. Staff members were given notice of the changes on 1 October 2009 and when invited to apply for positions in the remodelled Media Classifieds division. I asked state managers not to compromise on the quality of candidates for the new roles and to seriously consider external applicants. A nationally consistent selection process was deployed….
3.The Applicant, Raj Srinivas, had been employed in a telesales role which was no longer required. He successfully applied for a Business Development Manager (BDM) role. BDMs are responsible for signing new clients up to Telstra media products.
4.The cessation of the printed version of the Trading Post resulted in a number of customers having no immediate alternative for their advertising. This provided BDMs with a significant number of leads for potential customers to sign up for the digital product suite. Consequently, there were good results amongst BDMs nationally in the early part of 2010.
5.Raj's performance, by reference to key performance indicators deteriorated around mid-2010…
6.I understand that his team manager, Matt Wilson met with Raj for coaching and development purposes on 14 October 2010, as a result of his underperformance.
7On 22 October 2010, Raj wrote an email with the subject line 'Harassment, Bulling [sic] and Discrimination' and directed to Rachel Sandford, human resources, in which he outlined a series of complaints about Matt and Simon Pogue, a colleague who is no longer employed by Telstra…
8.Upon receipt of Raj's email, I initiated an investigation into his complaints and directed that Raj would report directly to me as an interim measure only, instead of Matt, with immediate effect.
9.Following an initial meeting with Rachel Sandford, I interviewed Raj. Raj confirmed a list of his grievances that would be further investigated. We identified a total of 15 complaints arising from the email and that meeting.
10.Thereafter, I interviewed Matt Wilson…
11.The results of the investigation are documented… and were presented to Raj and a union representative on or about 21 December 2010. My findings included:
(a)That there was no evidence of bullying or harassment by Simon Pogue or Matt Wilson;
(c)[sic]That although Raj had produced outstanding results in his former telesales role, he did not reach revenue or customer acquisition targets in July, August and September 2010 in his new role;
(b)[sic]That the meeting of 14 October 2010 was an appropriate initial response to Raj’s underperformance in that period.
12In relation to the meeting of 14 October 2010, it is common to use the terminology ‘one on one’ for a meeting between an employee and his or her team manager. Nonetheless, I noted in my investigation findings that Raj may have perceived that expression to have some adversarial connotation and suggested that Matt consider how his choice of terminology could be interpreted.
13.Raj did not raise any specific allegation in relation to the content of the meeting of 14 October 2010 and I did not form any view that the content of that meeting was inappropriate. I understand that Raj's main concern with the meeting was that he was being spoken to about underperformance in circumstances where he had historically been a high performing employee and continued to see himself as a high performing employee.
…
Mr Matthew Wilson, in a statement dated 27 October 2011, and in oral evidence, described the reason for the meeting on 14 October 2010 and the history of his interaction with Mr Srinivas as follows:
…
10.I became Raj’s direct supervisor on 1 November 2009, which was the date the Trading Post became entirely digital and was discontinued in published newspaper form.
11.In the ensuing months, Raj performed his new role well and exceeded his targets. I recall displaying his name in a presentation as a high performer. I was aware that Raj was a higher performer in his previous telesales position as well. He had been invited to attend retreats for high performance, which he attended with his family.
12.In July 2010 I completed a formal performance review process with Raj, and rated him ‘fully competent’ across all criteria in relation to his performance from January to June 2010…
13.Raj’s performance declined after that time. In the three months from July to September 2010 he made only 53% of his performance target…
14In a team meeting on 13 October 2010, Raj complained that business cards used by the team displayed the Telstra logo rather than the Trading Post logo. He said that customers found that confusing. I advised him to simply explain to customers that we were a part of Telstra. At that time we were, in fact, expecting business cards bearing the Trading Post logo to be provided.
15.I am aware that Raj subsequently complained that I had failed to provide him with any business cards after he had run out. Although I had no direct responsibility for ordering business cards, I did in fact ask the entire team in the meeting if anyone needed business cards, took names accordingly and past them on to the appropriate person. I have no recollection of Raj asking me for business cards on that day, other than in relation to his complaint about the logos.
16.Sometime later on 13th October 2010, I telephoned Raj to arrange a meeting. I indicated to him that I wanted to discuss his performance and what could be done to help him improve his performance. It was my practice to meet with staff ‘one to one’ every couple of months regardless of their performance to discuss how they were going in their roles. Raj agreed to a meeting the following afternoon.
17.I met with Raj at 2.30 pm on 14 October 2010 for approximately one hour. I made notes of the meeting afterwards, on the same afternoon…
…
21.At the conclusion of the meeting, approximately 3:30pm, I recommended that Raj spend the remainder of the day trying to improve his product knowledge. Instead he packed up and went home.
22.I am aware that Raj has said that I bullied him in relation to the meeting of 14 October 2010 and deny that allegation. The meeting was in no way intended to be disciplinary…
Mr Wilson prepared a Record of Interview which appears to be a pro-forma document headed with the insignia of Telstra and dated 14 October 2010, following the meeting with Mr Srinivas:
This template may be used at any stage in the Performance Improvement & Conduct process where there is no other prescribed means of documenting interviews/discussions.
It is advisable to keep a record of any employee conduct-and performance-related discussions with an employee. This formal (or similar) should be completed by the employee’s one-up manager.
…
POINTS TO BE COVERED WHERE APPLICABLE:
…
·Details of unsatisfactory performance/unacceptable conduct
…
·Employee’s explanation
·Explanation to employee on why this is unsatisfactory/unacceptable
·Improvement required from the employee
·Actions by manager to assist employees to improve
…
·Any other comments that employee wishes to make including mitigating factors
·Review date
…
Notes:
Matt outlined to Raj that last 3 months target performance were not satisfactory - July 67%, August 42%, September 50%. The average is 53% for the last quarter. It was noted that for the previous Quarter Raj averaged 97%.
Raj gave the feedback that the market was down, cant tie down the key decision makers, customers too busy to see him, he is running all over town to make sales.
Raj also spoke of how he was also unhappy with his own performance and wants to achieve and was willing to learn and try things differently.
Matt outlined that the meeting was about identifying areas for improvement in the goal to get to at least 100% by end of October.
Discussing the concerns collaboratively, the areas identified to improve performance were:
Activity needs to be at least 25 set appointments per week.
Make appointments at specific time with customer to allow time to present.
Present to the key decision maker.
Use any N.E.A.D.S. formula to uncover business needs of customer.
Time management - Plan day/week in territories or areas rather than going all over Melbourne. Use territory management spread sheet.
Be at a competent level with all product knowledge and systems such as Websites, easy sales, ad tools, ad manager.
…
A role-play/demonstration of the easy sales tool took place to gauge Raj’s Knowledge of Websites. It was recommended and agreed that Raj practise with the tool over the next week and send Matt a number of quotes in order to be competent in demonstrating websites to customers. Matt also recommended that Raj become familiar with sites unique has built to demonstrate these to customers.
It was agreed that Raj presented to matter again in 1 weeks time on Websites.
Raj Listened intently and agreed to action all of the above immediately.
Section 5A(2)(a) and (b) of the SRC Act specifically spell out that a reasonable appraisal of an employee’s performance and a reasonable counselling action (whether formal or informal) taken in respect of an employee’s employment are examples of reasonable administrative action. The Tribunal is satisfied that it was appropriate for Mr Wilson to have a meeting with Mr Srinivas on 14 October 2010 to discuss his performance and to counsel him on possible paths to improvement. Based on the oral and documentary evidence, the Tribunal is satisfied that the meeting between Mr Wilson and Mr Srinivas is appropriately classified as a reasonable administrative action.
WAS THE REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER?
In his letter to the Human Resources Department dated 22 October 2010 cited earlier and in a similarly worded statement dated 22 December 2010, Mr Srinivas described the pressures and fears to which he was now subjected because of the discrimination and bullying he had experienced with Telstra. He cited his lack of opportunity to be appointed to an account manager position following the closure of the print version of The Trading Post. He stated that persons junior to him with poorer performances than his were appointed as account managers and that the only available position for him was a BDM. He believed that there had been favouritism towards them by his manager.
Mr Srinivas, in his written statements and in oral evidence, described the difficulties of his role as a BDM. He worked long hours travelling all over Melbourne. He experienced hostility from some clients because the business was solely branded as Telstra and he said he did not even have appropriate business cards. He indicated that the expectation as to the number of appointments he should achieve was unrealistic in light of the available clientele at that time. He also described the harassment and discrimination he perceived on the part of some supervisors.
Notwithstanding the various issues that Mr Srinivas may have had with his employer and that they may well have formed the underlying basis for his medical condition, it was on Monday 18 October 2010 that he first sought treatment for that condition. The one on one meeting had been on the previous Thursday. Mr Wilson provided notes of the meeting on the day it took place and provided written and oral evidence as to his recollection of it. Taking into account the notes of the meeting, the reason why it took place and the evidence of the two participants, the Tribunal finds that the agenda for the meeting and the manner in which it was conducted appears to be reasonable. Mr Wilson stated that Mr Srinivas had appeared attentive. Mr Srinivas was given the opportunity to put forward his viewpoints which were recorded in the minutes of the meeting. Mr Srinivas’ subsequent response to the meeting may well have been affected by the stress and disappointment he was already experiencing but that does not of itself determine the reasonableness of the meeting.
In Hart v Comcare (2005) 145 FCR 29 the Full Court held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary provisions in the definition of injury then in s 4(1) but now in s 5A(1) of the SRC Act, that disease is not an injury. The Court also stated that it is immaterial whether that disease is also suffered as a result of any other employment-related circumstances. In other words, in order for the exclusionary provision to apply, it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances.
Based on the available evidence, the Tribunal is satisfied that the meeting on 14 October 2010 constituted reasonable administrative action in a reasonable manner.
In view of the Tribunal’s findings regarding reasonable administrative action in respect of the 14 October 2010 meeting, Mr Srinivas is not entitled to compensation under the SRC Act.
DECISION
The Tribunal affirms the decision under review.
29. I certify that the preceding (28) twenty-eight paragraphs are a true copy of the reasons for the decision herein of Regina Perton.
30. [sgd]..............................................
31. Administrative Officer
32. Dated : 29 June 2012
Dates of hearing
5 & 6 March 2012
Applicant In person
Counsel for Respondent
Advocate for the RespondentMr John Wallace
Mr Andrew Shelley, Spark Helmore
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