Re Arthur and Comcare

[2004] AATA 241

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 241

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/160
  )          No A2002/423
  )          No A2002/434
  )          No A2002/476

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DEBORAH ANNE ARTHUR

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Dr M D Miller AO, Member

Date10 March 2004

PlaceCanberra

Decision

The tribunal sets aside the reviewable decision dated 6 December 2002 (application A2002/476) and substitutes its own decision that Comcare is liable to pay compensation to Mrs Arthur in respect of depressive disorder.

The tribunal sets aside the reviewable decision dated 30 October 2001 (application A2002/423) and substitutes its own decision that Comcare is to pay compensation to Mrs Arthur for incapacity to work for the period from 5 to 30 June 2001 on the basis that Mrs Arthur has no ability to earn.

The tribunal sets aside the reviewable decision dated 9 April 2002 (application A2002/160) and substitutes its own decision that Comcare is to pay compensation to Mrs Arthur for incapacity to work for the period from 1 July 2001 to 14 January 2002 on the basis that Mrs Arthur has no ability to earn.

The tribunal sets aside the reviewable decision dated 31 October 2002 (application A2002/434).  The tribunal takes no further action in respect of this decision because the decision in relation to the reviewable decision dated 9 April 2002 has dealt with Mrs Arthur’s compensation entitlements for the period from 2 to 17 July 2001.

The applicant qualifies for costs in accordance with the tribunal’s general practice direction.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – synovitis and tenosynovitis causing no incapacity for employment – depressive disorder aggravated by employment – compensation payable for incapacity for work caused by depressive disorder – action taken by employer not reasonable disciplinary action

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“aggravation”, “ailment”, “disease”, “injury”), (9)(a), 7(4), (6), 14(1), 19(1), (2), (4)(e), 36(1)

Public Service Act 1999 ss 13, 15(1), (3), 22(6), 29(3)

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Re Harper and Commonwealth of Australia (1989) 17 ALD 569

Re Pandos and Commonwealth of Australia (1991) 22 ALD 784

Re To Nga Quach and Australian Postal Corporation (1991) 22 ALD 792

Commission for the Safety, Rehabilitation and Compensation for Commonwealth Employees v Chenhall (1992) 37 FCR 75

Re Choo and Comcare (1995) 39 ALD 399

Re Bennett and Comcare (1992) 17 AAR 18

Re Quarry and Comcare (1997) 47 ALD 113

REASONS FOR DECISION

March 2004 Michael Sassella, Senior Member
Dr M D Miller AO, Member           

RESULT

The tribunal has decided that Comcare should have accepted Mrs Arthur’s depressive disorder as a compensable injury.  The tribunal has decided that the action taken by her managers in Comsuper in respect of her job performance was not disciplinary action.  The tribunal has decided that Mrs Arthur qualifies for incapacity payments for the period from 5 June 2001 to 14 January 2002.  The tribunal has decided that Mrs Arthur qualifies for costs in accordance with the tribunal’s general practice direction.

BACKGROUND

1.Deborah Anne Arthur (“the applicant”), born 20 June 1949, was working for Comsuper when she lodged a claim for compensation for regional pain syndrome with tenosynovitis of the right arm dated 22 May 2000. The date of injury was said to be 1 October 1998 with treatment for an exacerbation on 17 April 2000. In June 2001 Comcare (“the respondent”) accepted liability for this injury, described as “synovitis and tenosynovitis (right)” until 10 August 2000. The date of injury was 17 April 2000, in accordance with s 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1], that being the date when she first sought treatment for the exacerbation.  The injury was conceptualised as an aggravation of a physical condition that had its original onset in 1998.  Comcare did make some medical payments in respect of this condition after 10 August 2000.  On 2 July  2001 Comcare denied liability to pay compensation for incapacity for work from 5 to 30 June 2001..  Comcare reviewed this decision internally and confirmed the original decision.  This was the reviewable decision in A2002/423.

[1] 21 November 2001 Comcare denied liability to pay incapacity payments from 25 June 2001 to 14 January 2002.  This decision was affirmed when Comcare reviewed it on 9 April 2002.  This was the reviewable decision in A2002/160.

3.On 17 July 2001 Comcare wrote to Mrs Arthur informing her that it would make incapacity payments for the period 2 to 14 July 2001. This was inconsistent with the decisions in [2]. On 31 October 2002 Comcare reviewed that decision and revoked it. This was the reviewable decision in A2002/434.

4.On 12 August 2002 Mrs Arthur claimed compensation for tenosynovitis in both hands and forearms and for major depression and anxiety.  The date of injury was 1 October 1998.  Comcare rejected this claim on 3 October 2002.  That decision was confirmed when Comcare reviewed it on 6 December 2002.  This was the reviewable decision in A2002/476. 

5.Comcare’s position is based on a combination of bases.  These are that:

·     Her total incapacity for work since 5 June 2001 has not resulted from a work-related aggravation of her accepted disability, synovitis and tenosynovitis.

·     She left work on 5 June 2001 because she received notice of formal disciplinary action to be taken against her.

·     If Mrs Arthur suffers from a major depressive disorder which caused her to leave work on 5 June 2001, that resulted from reasonable disciplinary action taken against her.

·     The psychiatric condition is not a sequela of the accepted synovitis and tenosynovitis.

·     If Mrs Arthur’s employment made a material contribution to her medical conditions, she has not mitigated her damages because she has not had treatment recommended for her related to her psychiatric condition.

ISSUES

6.An employee must have suffered an injury, as defined in s 4(1) of the Act, if he or she is to receive any compensation under the Act. An injury is defined in s 4(1) as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

As noted earlier, the issue of reasonable disciplinary action arises in the present case.

7.Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

8.The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

9.An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

10.If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

14. (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.

11.The issues that therefore arise in this application are:

(a)Has there been a compensable injury in the nature of tenosynovitis or depressive disorder under the Act?

(b)If the answer to (a) is yes, does Mrs Arthur qualify for incapacity payments for the period from 5 June 2001 to 14 January 2002?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A) Has there been a compensable injury in the nature of tenosynovitis or depressive disorder under the Act?

12.The condition of synovitis and tenosynovitis (right) was accepted as an injury by Comcare, as noted above.  In accordance with the decision of Cooper J in the Federal Court of Australia in Australian Postal Corporation v Oudyn (2003) 73 ALD 659, 667 this determination remains on foot. That condition, however, resulted in actual payment of compensation for incapacity only up to 10 August 2000, with some medical expenses compensation beyond that date. If the condition returned to incapacitate Mrs Arthur for employment on and after 5 June 2001 then she would qualify for incapacity payments under s 19 of the Act.

13.On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413. In effect, while there is no strict onus of proof in the tribunal, a party such as Mrs Arthur who is seeking benefits under the Act has an effective onus to persuade the tribunal that it should, on balance, decide in her favour. At the same time, as Comcare is asserting that any actual injury resulted from reasonable disciplinary action, it has a similar onus of persuasion on that issue.

14.Ms Ford, representing Comcare, argued that it was most unlikely that Mrs Arthur’s tenosynovitis could constitute a work-related reason for her ceasing work at Comsuper on 5 June 2001.  This argument was based on several factors.  It was Mrs Arthur’s case that she had been able to manage her tenosynovitis in 2000 so as to return to work after the exacerbation that led to the compensation claim in May 2000.  It was then alleged that the condition returned when she was directed on 7 May 2001 to work within the hours of only 8.00 am to 6.00 pm.  Her argument was that she could avoid the tenosynovitis by spacing out her keyboarding duties.  However, these restricted hours meant that she had to “bunch” her keyboarding to a deleterious extent. 

15.Ms Ford referred to a collection of documents appearing at pages 73 to 105 of the section 37 documents provided for application A2002/160.  Mrs Arthur reluctantly conceded that this was the totality of her keyboarding for a period of 3 ½ weeks.  It was suggested that such a relatively low output would not be likely to exacerbate tenosynovitis. 

16.There was a suggestion that Mrs Arthur had seen Dr Black to report arm pain on 28 May 2001.  Dr Black told Ms Ford, however, at the tribunal hearing that Mrs Arthur saw him about her concerns regarding the reduced spread of her work hours.  He noted no complaint of pain.  She was emotionally upset.  He had seen her right arm problem on that day as work-caused because Mrs Arthur had said so.  He considered that the low volume of keyboarding done by Mrs Arthur during May 2001 was unlikely to have exacerbated any tenosynovitis pain. 

17.This means that the tenosynovitis was either not genuinely painful in May-June 2001 or that, if it was acting up, it was not work-related.  One alternative theory for which Ms Ford received some support from Dr Black was that menopause can result in fluid retention which could explain Mrs Arthur’s swollen forearms about six weeks after she left Comsuper.

18.We consider it most unlikely that work-related tenosynovitis caused Mrs Arthur to cease work at Comsuper on 5 June 2001.  We find that Mrs Arthur either did not suffer from an exacerbation of an underlying tenosynovitis on 5 June 2001 or that, if she did so suffer, the exacerbation was not work-caused. 

19.Mrs Arthur suffers from a depressive disorder.  Ms Ford accepted this to be so on the basis of Dr J R Champion’s report dated 15 April 2003, Dr Champion being a psychiatrist.  He diagnosed mild to moderate reactive depression due to perceptions of unjust treatment centring around complaints of poor performance in the workplace.  He thought there may have been pre-existing depression related to physiological factors associated with anaemia and anxiety associated with a possible diagnosis of carcinoma during the period from February to June 2000.  He wrote that some of that depression may have continued as Mrs Arthur had not received any real treatment for depression up to 2001 or since.  We find therefore that Mrs Arthur was suffering from a work-related depressive disorder when she ceased work on 5 June 2001 and continuing.  This was an aggravation of a pre-existing disease.

20.The issue then becomes whether that aggravation was suffered by an employee as a result of reasonable disciplinary action taken against the employee, as set out in the definition of an “injury” in s 4(1) of the Act (see [6] above).

21.The following arguments were put for Mrs Arthur to suggest that action taken affecting her was either not disciplinary action or was disciplinary action but was not reasonable.

(a)Mrs Arthur had joined Comsuper in 1984 and her work had drawn praise over the years.  In 2000 Mrs Arthur had several serious illnesses.  She was incorrectly diagnosed with uterine cancer.  She was found to have anaemia.  This affected her work performance and led to a desire by management to institute “underperformance” processes.  In February 2000 Mrs Arthur complained that her supervisor had been bullying a third person.  This supervisor began to criticise Mrs Arthur’s work and later became personnel manager.

(b)In September 2000 Comsuper management decided to institute underperformance action.  This was contemporaneous with Mrs Arthur’s health problems of which Comsuper was unaware.  Dr Arthur attended a meeting at Comsuper and told management of the health issues.  The underperformance action either ceased or was suspended. 

(c)In addition, Dr Arthur’s view is that this action was based on a false premise.  Ms G Vreekamp (later Ms G McGann), Mrs Arthur’s manager, wrote on 31 August 2000 to Mrs Arthur referring to counselling sessions held on 7 April 2000 and 22 May 2000 in which Mrs Arthur had been told her work would be monitored.  In August Ms Vreekamp was writing to say that she remained dissatisfied with Mrs Arthur’s level of performance.  She itemised concerns such as low output, timeliness, inflexible and inefficient work methods and lack of commitment to her team mates.  This drew a long and detailed response on 15 September 2000.  It seems that Mrs Arthur’s work output in fact met, or almost met, a goal set earlier in 2000.  In a performance assessment for March to August 2000, carried out in March 2001, Ms Vreekamp and another signed off on a document stating that Mrs Arthur had met her targets.

(d)Mrs Arthur lodged a grievance with Comsuper concerning her treatment.  She was dissatisfied with the outcome and so sent the matter for “secondary review” by the Merit Protection Commissioner (“MPC”).  The MPC on 23 December 2002 concluded that Comsuper had not advised Mrs Arthur of deficiencies in her performance before May 2001.  The MPC found that there were no documents in late 2000 or early 2001 advising Mrs Arthur of unsatisfactory performance.  The MPC found a lack of timely feedback from Ms Vreekamp to Mrs Arthur between March and August 2000.  The MPC found that the issues were addressed in March 2001 but that no record of that discussion reached Mrs Arthur before 5 June 2001.  That feedback was undated and not in a usual format.  The MPC found also that steps had not been taken to assist Mrs Arthur to lift her performance.  On 7 May 2001 management representatives saw a voluntary redundancy or inefficiency proceedings as potentially applicable.

(e)There was no sufficient evidence of underperformance. 

(f)Mrs Arthur’s ex-supervisor, Mr H Major, was responsible in Comsuper’s personnel section for Mrs Arthur’s case.  Dr and Mrs Arthur regard Mr Major as biased against Mrs Arthur.  He continued handling Mrs Arthur’s case for a year despite this conflict of interest. 

(g)Comsuper did not accept the MPC’s findings.  On 13 February 2003 the deputy CEO of Comsuper wrote to the MPC expressing dissatisfaction with how the MPC dealt with the evidence and suggesting that the MPC had ignored events occurring in 2000 in coming to its conclusions.  Most relevantly it was suggested that the MPC had been wrong in finding that Mrs Arthur had received no notice of management dissatisfaction prior to May 2001.  The deputy CEO also noted that there was no longer any work for Mrs Arthur in the Comsuper reconsiderations section where she had previously worked and that Mrs Arthur had not previously shown interest in working anywhere else in Comsuper.  Dr and Mrs Arthur took this to suggest that there was no longer a place for Mrs Arthur in Comsuper.  They could not see why this information had been given to the MPC and did not agree that Mrs Arthur had refused to work elsewhere in Comsuper.  Ms McGann in her evidence at the tribunal hearing stated that there is work in the reconsiderations section that Mrs Arthur could do if she returned to work.

(h)It is unclear what then passed between Comsuper and the MPC but on 26 March 2003 Comsuper sent the MPC a conciliatory letter noting in passing that Mrs Arthur was medically certified as unfit for work.  This letter was not copied to Mrs Arthur until two months later, a much longer delay than had occurred with the earlier critical letter in [21(g)] above. 

(i)Comsuper had not managed Mrs Arthur’s alleged underperformance in 2001 as required by Comsuper’s certified agreement, the Comsuper Workplace Agreement 2000-2002..  The MPC identified this problem. 

(i)In paragraph 4.3 of its report the MPC stated that, despite the requirements of the certified agreement, there was no action taken in relation to Mrs Arthur’s performance from August 2000 to March 2001.  That was why the MPC concentrated its attention on events in 2001. 

(ii)In paragraph 5.10 the MPC stated that Ms McGann’s decision to initiate formal underperformance proceedings invoked clause 243 of the certified agreement.  That clause stated that formal procedures would commence “in circumstances where, despite attempts to improve performance through feedback and other measures, performance consistently falls below the expected standard”. 

(iii)The MPC saw little evidence of attempts by Comsuper to assist Mrs Arthur to achieve desired levels of performance.  Rather, the MPC said, the view was that Mrs Arthur had not been performing and this view was held some months before Mrs Arthur was informed of any concerns.  When she was informed, said the MPC, there appeared not to be any attempt to identify strategies to help her improve. 

(iv)The MPC’s conclusion was that Comsuper’s actions in managing Mrs Arthur’s performance in 2001 were not consistent with the standards identified in the certified agreement.  Likewise these actions were inconsistent with normal practice in that they did not allow for continuing feedback and documentation of the required standards together with an assessment of Mrs Arthur’s achievements against those standards.  The MPC wanted the action to cease. 

(v)Dr Arthur submitted that these findings mean that the disciplinary action cannot have been reasonable if contrary to the certified agreement. 

(j)Mrs Arthur’s documented performance was satisfactory.  Her performance agreement required her to prepare cases for internal review at a rate of 13 cases every six months, to deal with clients in a courteous and sensitive manner, to work with people by contributing to the workgroup and interacting effectively with people.  The recorded assessment for March to August 2000 indicated that she had met her targets (albeit with some loss in quality), there were no problems identified with client service and there were some reservations about her working with her colleagues.  It seems that they bore the brunt of her sick leave absences and she would see her manager for more work when she had no more to do rather than approach her colleagues to relieve their burdens. 

(k)There was a six-month period from September 2000 to March 2001 when Mrs Arthur was given no feedback

22.We note that not a lot was made by Dr Arthur of the decision to require Mrs Arthur to work within the hours of 8.00 am to 6.00 pm.  We consider that was wise as a 10-hour work band permitted her sufficient time to spread keyboard work, especially where there was as little keyboard work required as seems to have been the case here.

23.Ms Ford answered these objections to Comsuper’s management of Mrs Arthur’s performance with the following arguments:

(a)Clause 243 of the certified agreement is not part of Comsuper’s disciplinary process.  It is an investigative step to see whether there are grounds for later disciplinary action. 

(b)Throughout 2000 and up until June 2001 Mrs Arthur was counselled, criticised and reprimanded in respect of her poor work performance.  This was based on monitoring that had already occurred.  This is disciplinary action.

(c)The deputy CEO’s letter to the MPC was not an incident of Mrs Arthur’s employment at Comsuper.  Thus, even if it aggravated her condition, it is not relevant to these proceedings.

(d)The MPC’s report does not refer to a number of documents from 2000 that are before the tribunal.  In 2000 Mrs Arthur was told much that the MPC was unaware of. 

(i)She was told that her performance problems predated any medical condition.  Reference in July 2000 was made to difficulties extending back to 1999.  In April 2000 she was told that her work in 1999 was less than half the target for that year. 

(ii)Comsuper managers offered assistance to Mrs Arthur in April 2000 to help her cope with the work.  Ms Vreekamp offered to discuss Mrs Arthur’s cases with her and to take her diverted telephone calls.  Mrs Arthur did not avail herself of this except for a telephone diversion on one occasion. 

(iii)In May 2000 in a document not referred to by the MPC, a record of a performance review, noted that some of Mrs Arthur’s cases had not been addressed for four or five months and that she had taken a long personal telephone call.  She was again offered help to get her files up to date. 

(iv)The MPC appears not to have seen a document addressed to Mrs Arthur dated 31 August 2000 noting continued dissatisfaction with Mrs Arthur’s performance in the six weeks since she had returned to work following a hysterectomy operation and full resolution of her medical problems.  Problems with business function, timeliness, work methods, client service and teamwork were noted with examples cited.  Although this appears inconsistent with the performance assessment for March to August 2000 carried out in March 2001, Ms Ford argued that the March 2001 assessment was positive only in respect of meeting targets and, the tribunal would add, customer service.  It did betray quality problems.  Ms Ford concluded that the MPC was wrong in stating that Comsuper had identified no strategies to try and assist Mrs Arthur to lift her performance. 

(v)She was told in May 2001 after her return to work when she felt well that Comsuper was still dissatisfied with the quality of her work.

(vi)The underperformance procedures intended for September 2000 were suspended or ceased only because of Dr Arthur’s intervention and mention of the medical issues.  Although it was suggested that medical issues were inhibiting Mrs Arthur’s performance there were concerns about her performance outside the period affected by medical problems, both before and after that period. 

(vii)At no stage in 2000 or 2001 did Comsuper management ever tell Mrs Arthur that they were completely happy with her performance.  Rather, there is a continuous record starting in April 2000 of dissatisfaction with Mrs Arthur’s work performance. 

(e)Mrs Arthur received feedback starting in April 2000 and ending in June 2001.  She did not take well to criticism.  There has been no acceptance by Mrs Arthur that her work has been under par or that she has been at fault in any way.  This shows that Mrs Arthur cannot tolerate criticism.  This caused her to go on extended sick leave in June 2001. 

(f)Section 15 of the Public Service Act 1999[2] provides that an employee who does not adhere to the Code of Conduct can be reprimanded.  The rebukes, criticisms and feedback Mrs Arthur received over an 18-month period fell within the meaning of reasonable disciplinary action.  

[2] suggested in response to these submissions from Ms Ford that Ms Ford failed to appreciate the Australian Public Service process whereby performance assessment is conducted within particular assessment periods.  There is supposed to be a continuous process of advising an employee within an assessment period so that, if at the end an adverse assessment is to occur, the employee has had sufficient notice and an opportunity to remedy the situation. 

24.There is considerable authority on the concept of “disciplinary action”.  The tribunal in its earlier decisions required a disciplinary outcome such as the imposition of a penalty before action could be seen as disciplinary (see Re Harper and Commonwealth of Australia (1989) 17 ALD 569, Re Pandos and Commonwealth of Australia (1991) 22 ALD 784 and Re To Nga Quach and Australian Postal Corporation (1991) 22 ALD 792). This interpretation tends to favour an employee because it would apply in fewer circumstances than a broader understanding of the concept. Such a broader understanding might mean that action is disciplinary even if there is no sanction or penalty applied. We can understand why the tribunal in the cited cases took this route. The Act is beneficial legislation which, where there is ambiguity, might be expected to be interpreted in the employee’s favour.

25.However, in 1992 the Federal Court (Cooper J) considered the matter in Commission for the Safety, Rehabilitation and Compensation for Commonwealth Employees v Chenhall (1992) 37 FCR 75. Cooper J held at page 83 that the phrase, “disciplinary action” means no more than “reasonable action lawfully taken against an employee in the nature of or to promote discipline”.. Cooper J enlarged on this. He saw “the relevant discipline” as constituted by “the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth”. In Mrs Arthur’s case this refers to the Public Service Act (including its Code of Conduct) and the Comsuper certified agreement.

26.Cooper J emphasised that it must be the disciplinary action itself, and not “the steps anterior to the decision to take such action” which is covered in the Act. “Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning … in the Act” (page 84).

27.Cooper J then identified what may be lawful disciplinary action.  This depends on the nature of the duties, the rules of conduct or behaviour and the means provided by statute or at common law to enforce them.  He posed three questions to be answered in a case such as this:

(a)What discipline or rules of conduct apply to an employee of the Commonwealth?

(b)In what circumstances can the Commonwealth as an employer take action of a disciplinary nature to enforce the discipline or rules of conduct against the employee?

(c)What type of action may the Commonwealth take against an employee if the circumstances giving occasion to the taking of disciplinary action exist?

The answers to these question will determine whether any particular conduct is or is not disciplinary action. 

28.The core of Cooper J’s analysis is that the emphasis is not on the imposition of a sanction or penalty.  It is whether action that can be regarded as disciplinary in accordance with the rules that apply in the particular Commonwealth workplace has been taken.  In one workplace disciplinary action may have to result in exaction of a penalty to be termed disciplinary.  In others the action may be disciplinary where the rules require no more than a finding that there are reasonable grounds to believe that an employee has breached, or may have breached, or may in the future breach, any duty he or she owes or may breach a code of conduct or rules of behaviour without any requirement that misconduct be proven. 

29.Since Chenhall [25] above the principles enunciated by Cooper J have been applied in other decisions. In one, Re Choo and Comcare (1995) 39 ALD 399, the tribunal omitted any reference to Chenhall, but this was unusual.  The later cases provide some examples regarding what is and is not disciplinary action.  In Re Bennett and Comcare (1992) 17 AAR 18 the tribunal dealt with an employee employed by the Australian Bureau of Statistics (“ABS”). In 1988 he was notified that his efficiency would be assessed under the ABS policy guidelines for inefficiency introduced in 1986. The assessment ran for three months from mid-September. He was found to be inefficient. His employment was terminated from 8 August 1989. The tribunal found that the employee suffered from stress and hypertension which were aggravated during the assessment process. The tribunal addressed Cooper J’s three questions in [27] above. It found the applicable rules on disciplinary action in the Public Service Act as it then was and the ABS manual of personnel management.

30.That tribunal found that neither the employee nor his managers during the assessment process understood themselves to be engaged in a disciplinary exercise.  The employee was served with a warning requiring him to sustain an acceptable standard of work performance for an ASO 1 officer.  The person issuing that notice understood that the procedures were invoked compassionately to counsel the employee about his work performance, to give him encouragement to improve and to find out whether there were medical factors.  It was not issued to punish the employee.  This was regarded in Chenhall terms as action taken to determine whether or not disciplinary action would be taken against the employee.

31.On the other hand the tribunal found that the retirement of the employee under the Public Service Act, while not provided for in the disciplinary provisions of that Act, was disciplinary action within the meaning of s 4(1) of the Act. It was described by the tribunal as action taken by the ABS to enforce the disciplinary regime as far as it concerned the employee. We take the crucial point to be that this was action depriving Mr Bennett of a job because of his inefficiency. The retirement was found to be reasonable action. Mr Bennet was compensated only for the assessment period.

32.In Re Quarry and Comcare (1997) 47 ALD 113 the tribunal applied Chenhall [25]. The employee was required by her managers at a meeting to undergo a competency needs analysis. She was upset by this requirement, left the premises and did not return to work for some weeks. She suffered an adjustment disorder as a consequence. Prior to the managers’ meeting there had been several counselling sessions. The tribunal surveyed the remedies open to management in the Public Service Act. It looked also at the matters now found in the Code of Conduct in the Public Service Act 1999 which it thought were in departmental policy documents.  In fact they were at the relevant time in the Public Service Regulations.  The tribunal referred to the relevant department’s personnel management manual.  The tribunal then considered the grounds on which the agency could take disciplinary action. 

33.However, at the end of the process the tribunal decided that, when the employee left work, no decision had been made whether to take action in relation to the employee on the basis of inefficiency, inability to perform her duties, medical incapacity, being an excess officer, or failing to fulfil her duty as an officer. The managers at the relevant time were still dealing with her compassionately. The tribunal regarded the counselling sessions as preliminary discussions at a stage when the managers were seeking both to assist her and to assess what action was appropriate. The actions were not disciplinary action. They were actions taken to determine whether or not disciplinary action would be taken in relation to the employee. There was, therefore, an injury under the Act.

34.In the present case the answer to the first of Cooper J’s questions in [27], “What discipline or rules of conduct apply to an employee of the Commonwealth?”, in Mrs Arthur’s case is:

·     The Public Service Act 1999. Section 13 of that Act requires an APS employee, which Mrs Arthur was at all relevant times, to abide by the Code of Conduct appearing in that section. Section 15 permits an agency head to impose six types of sanction where an APS employee has breached the Code of Conduct. These are termination of employment, reduction in classification, reassignment of duties, reduction in salary, deductions from salary by way of fines and a reprimand. Section 15(3) requires an agency head to establish procedures for determining whether an APS employee in the agency has breached the Code of Conduct. In cases of underperformance or inefficiency s 29(3) might be applied to allow the agency head to terminate an employee’s employment.

·     The Comsuper certified agreement.  This included a number of relevant sections.  Employees were committed in clause 171 to applying the APS Values and Code of Conduct which were reproduced at attachment C to the agreement.  Section I related to a people management program.  The objectives in clause 240 emphasised successful performance.  Clause 240 was linked in clause 241 to other processes such as assisting in the early identification and management of underperformance.  In clauses 242-245 there was considerable attention to underperformance:

(i)Underperformance issues were to be addressed promptly and fairly, with feedback being the initial and primary channel for discussing these issues (clause 242).

(ii)Where attempts to resolve underperformance fail and performance consistently falls below the expected standard a six-step procedure was mandated in clause 243.  Without going into this procedure we note that it was an elaborate and labour-intensive process involving, for example, a two-month period in which to remedy problems with fortnightly progress reports which the employee was to be shown.  We do not see the processes that were used in Mrs Arthur’s case as satisfying these requirements until the attempt to adopt them on 5 June 2001.

(iii)These procedures were not to be used for disciplinary or underperformance reasons (clause 245).

(iv)Attachment D contained further material on management of underperformance which stressed immediate feedback in cases of underperformance. 

· There may have been a Comsuper personnel management manual but the tribunal had no evidence before it regarding that. There would be a set of disciplinary procedures within Comsuper as required by s 15(3) of the Public Service Act but we were not shown these.

35.Cooper J’s second question, “In what circumstances can the Commonwealth as an employer take action of a disciplinary nature to enforce the discipline or rules of conduct against the employee?”, is answered by reference to the Public Service Act. Action can be taken under s 29(3) of the Public Service Act 1999 where there is a breach of the Code of Conduct, or where an employee is excess to requirements, or lacks or has lost an essential qualification, or for unsatisfactory performance of duties, or because of inability to perform duties because of physical or mental incapacity, or for failure to complete an entry-level training course, or for failure to meet a condition (eg becoming an Australian citizen) imposed under s 22(6) of that Act, or for any other reason prescribed by regulations.

36.Cooper J’s third question, “What type of action may the Commonwealth take against an employee if the circumstances giving occasion to the taking of disciplinary action exist?”, is answered also by reference to the Public Service Act. The Commonwealth can take the actions in [34, bullet point one].

37.What actually occurred here on 5 June 2001 was the delivery to Mrs Arthur of a minute to the following effect:

·     On 7 May 2001 Mrs Arthur had attended a meeting with Ms Vreekamp, Ms J Ayre, Mr M Taylor (of the relevant union) and a Mr P Naughton from Comsuper Human Resources Branch.  Mrs Arthur was advised of concerns regarding her work performance which, if not addressed, would lead to formal proceedings under the Comsuper certified agreement in respect of underperformance.  A summary of the matters discussed had been given to Mrs Arthur on 8 May 2001  for her to sign and return but she did not.

·     Mrs Arthur’s performance had not improved.  The purpose of the minute was to remind Mrs Arthur of acceptable work standards and identify where she had fallen short. 

·     Mrs Arthur’s work was to be assessed in the following two months in accordance with clause 243 of the certified agreement.  Fortnightly progress reports were to be prepared and Mrs Arthur would be able to comment on these.  At the end of two months a report would be sent to the Manager, Corporate Services who would determine further action.  The possible outcomes were listed in clause 243.

·     Specific allegations of poor performance in relation to eight files were detailed.

·     Mrs Arthur’s actual work output for May 2001 had been low.  There was no apparent reason for Mrs Arthur’s failure to attend to outstanding case work.

·     A fresh set of time standards to be applied by Mrs Arthur in dealing with her files was provided.

·     It was noted that Mrs Arthur had on at least one occasion breached the direction regarding her hours of work.  She was warned that further breaches would result in disciplinary action being taken.

38.It appears to us that no disciplinary action was taken against Mrs Arthur in the sense described in Chenhall [25]. The case is very similar to Re Quarry [32].  All that had occurred was a series of interchanges and communications calling attention to perceived deficiencies in Mrs Arthur’s performance.  The greatest threat made to Mrs Arthur, both in September 2000 and June 2001, was the institution of underperformance procedures under clause 243 of the certified agreement.  According to clause 245 these were not part of the disciplinary process.  We find that Comsuper’s actions here were the same as in Quarry where they were described as “preliminary discussions at a stage when the applicant’s superior officers were seeking both to assist her and to assess what action was appropriate. … They were not disciplinary action.  They were action to determine whether or not disciplinary action would be taken in relation to the applicant”. 

39.We find therefore that Mrs Arthur suffered a compensable injury in the nature of depressive disorder or an aggravation of depressive disorder under the Act because the exclusion based on reasonable disciplinary action was not applicable.

(B) If the answer to (a) is yes, does Mrs Arthur qualify for incapacity payments for the period from 5 or 6 June 2001 to 14 January 2002?

40.Mrs Arthur will qualify for incapacity payments under s 19(1) of the Act if, as a result of her compensable injury, she is incapacitated for work for any period. Under s 19(2) of the Act she would qualify for weekly compensation payments based on her normal weekly earnings less any allowance for her ability to earn, if any, during the period.

41.We find that Mrs Arthur was incapacitated for work from 5 June 2001. We rely on the report by Dr K Boyapti of Health Services Australia who, on 5 July 2001, wrote that Mrs Arthur was suffering from a significant anxiety state and depression and was unfit to return to her duties until the condition was adequately controlled. Other evidence, such as that from Dr Champion, suggests that the depression existed on and before 5 June 2001. Section 4(9)(a) of the Act defines an incapacity for work as an incapacity to engage in any work. That, in our view, was Mrs Arthur’s condition as at 5 June 2001.

42.The medical evidence also suggests that Mrs Arthur is unfit for any employment at the present time.  General practitioner Dr Black told the tribunal that, even if Comsuper removed the underperformance pressures, Mrs Arthur could not return to work because her depression is so strong.  Psychiatrist Dr Lucas regarded Mrs Arthur’s statements that she wants to return to work at Comsuper as unrealistic.  Psychiatrist Dr Champion, however, considered that Mrs Arthur could return to work as part of a program involving resolution of the performance problems. 

43.We prefer the views of Drs Black and Lucas to Dr Champion.  Dr Black is Mrs Arthur’s general practitioner and knows her case well.  Dr Lucas saw her three times, 15 August 2001, 6 March 2002 and 26 March 2003.  He has had the opportunity of examining her on a longitudinal basis.  Dr Champion saw Mrs Arthur only once, on 10 April 2003.  We have to say also that, from our own observation of Mrs Arthur, her demeanour is teary and redolent of a depressive disorder.  It is difficult to imagine that she could apply herself to a job of work in her current state.

44.There has been no evidence suggesting that Mrs Arthur’s depressive disorder has worsened in recent times.  We consider it more likely than not that she has been incapacitated for work because of her depressive disorder since 5 June 2001.

45.We therefore find that Mrs Arthur had no ability to earn between 5 June 2001 and 14 January 2002. In accordance with the principle in s 19(4)(e) we find that Mrs Arthur has failed to seek other employment after becoming incapacitated for work. However, we also find that there is no amount per week that could reflect any ability to earn because there has been no suitable employment for her in that period as she was, in our view, unfit for work.

CONCLUSION

46.We have concluded that Mrs Arthur suffers from a depressive disorder caused or aggravated by events in the workplace, notably the delivery of a letter instituting formal underperformance procedures on 5 June 2001. We have also concluded that neither the delivery of that letter, nor earlier action calling attention to Mrs Arthur’s work deficiencies, were disciplinary action under the Act. Mrs Arthur therefore qualified for incapacity payments from 5 June 2001 to 14 January 2002 on the basis of being totally unfit for work.

REHABILITATION ASSESSMENT

47.During the course of the hearing Dr and Mrs Arthur expressed an interest in having Mrs Arthur assessed for a possible rehabilitation program. The tribunal undertook to mention in its reasons for decision that Mrs Arthur may be able to secure such an assessment from Comsuper under s 36(1) of the Act. Under s 36(1) the rehabilitation authority, Comsuper in this instance, must, on the written request of the employee, arrange for an assessment of the employee’s capability of undertaking a rehabilitation program.

DECISION

48.The tribunal sets aside the reviewable decision dated 6 December 2002 (application A2002/476) and substitutes its own decision that Comcare is liable to pay compensation to Mrs Arthur in respect of depressive disorder.

49.The tribunal sets aside the reviewable decision dated 30 October 2001 (application A2002/423) and substitutes its own decision that Comcare is to pay compensation to Mrs Arthur for incapacity to work for the period from 5 to 30 June 2001 on the basis that Mrs Arthur has no ability to earn. 

50.The tribunal sets aside the reviewable decision dated 9 April 2002 (application A2002/160) and substitutes its own decision that Comcare is to pay compensation to Mrs Arthur for incapacity to work for the period from 1 July 2001 to 14 January 2002 on the basis that Mrs Arthur has no ability to earn.

51.The tribunal sets aside the reviewable decision dated 31 October 2002 (application A2002/434).  The tribunal takes no further action in respect of this decision because the decision in relation to the reviewable decision dated 9 April 2002 has dealt with Mrs Arthur’s compensation entitlements for the period from 2 to 17 July 2001.

52.The applicant qualifies for costs in accordance with the tribunal’s general practice direction.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the orders herein of Mr M J Sassella, Senior Member and Dr M D Miller AO, Member

Signed:         P. Gatland           .......................................................................................
  Associate

Dates of hearing  12-14 November 2003
Date of decision  March 2004
Advocate for the applicant        Dr E Arthur
Counsel for the respondent      Ms E Ford
Solicitor for the respondent      Phillips Fox Solicitors