Re Dunkerley and Comcare
[2010] AATA 915
•17 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 915
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0667
GENERAL ADMINISTRATIVE DIVISION ) Re ULLA-MAIJA DUNKERLEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date17 November 2010
PlaceCanberra, ACT
Decision The decision under review, in which Comcare denied liability to pay Ms Dunkerley compensation for an ‘aggravation of adjustment reaction disorder with mixed emotional features’, is affirmed.
..................[sgd]...................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – liability for aggravation of psychological injury – exclusionary provisions – reasonable administrative action taken in a reasonable manner – reasonable appraisal of employee’s employment – recruitment – flexibility in policy – manager’s actions not ‘untoward, irrational, absurd or ridiculous – decision under review affirmed
Public Service Act 1999 (Cth) s 10(1)(b)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(4), 14
British Oxygen Co Ltd v Minister of Technology [1971] AC 610
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Comcare v Chenhall (1992) 37 FCR 75.
Comcare v Mooi (1996) 69 FCR 439.
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Gilbert and Comcare [2009] AATA 224
Re Georges and Telstra Corporation Ltd [2009] 731
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.
Kucks v CSR Ltd (1996) 66 IR 182.
Repatriation Commission v Webb (1987) 13 ALD 421
Re Reubinson and Comcare [2010] AATA 676
Wetzel v District Court of New South Wales (1998) 43 NSWLR 687
REASONS FOR DECISION
1. On 24 October 2007, Ms Dunkerley suffered an 'adjustment disorder with anxious mood'. The condition was substantially contributed to by her employment at the Department of Education, Science and Training (Department). In a consent decision by the Tribunal, on 16 June 2009, Comcare accepted liability for the condition.
2. On 1 September 2009, Ms Dunkerley claimed that she had suffered an aggravation of her condition on 20 July 2009 for which she sought compensation. On 8 December 2009, her claim was rejected. That decision was upheld on review on 11 February 2010. Ms Dunkerley sought further review by the Tribunal on 18 February 2010.
3. At the hearing, Ms Dunkerley was self-represented. Evidence was provided by Ms Dunkerley and Mr Michael Schwager, Head of the Corporate Division of the Department.
Legislation
4. To be eligible for compensation, Ms Dunkerley must establish that she is seeking compensation in accordance with the Act ‘in respect of an injury suffered by an employee [which] results in … incapacity for work, or impairment’.[1]
[1] Act, s 14.
5. To be an ‘employee’ requires, as relevant, that the applicant be ‘a person who is employed by the Commonwealth or by a Commonwealth authority’.[2]
[2] Act, s 5(1)(a) – ‘employee’.
6. ‘Injury’ is defined, as relevant, as a ‘disease suffered by an employee’.[3] ‘Disease’ is further defined, as relevant, as an ‘ailment suffered by an employee … that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth’.[4] An ‘ailment’ means any ‘mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’,[5] and an ‘impairment’ for the purpose of section 7(4) ‘means the …. damage or malfunction, of any part of the body or of any bodily system or function’.[6]
[3] Act, s 5A(1)(a) – ‘injury’.
[4] Act, s 5B(1)(a).
[5] Act, s 4(1) – ‘ailment’.
[6] Act, s 4(1) – ‘impairment’.
7. However, to be a compensable ‘injury’ the claimed condition must not be ‘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’.[7] ‘Reasonable administrative action’ is defined.[8]
[7] Act, s 5A(1).
[8] Act, s 5A(2).
8. An ‘injury’, being a ‘disease’, is taken to be sustained on the deemed date of injury, namely, ‘on the day when (a) the employee first sought medical treatment for the disease’ or (b) the disease or aggravation … first resulted in the incapacity for work, or impairment of the employee’.[9]
[9] Act, s 7(4).
Issues
9. The principal issues are:
· whether Ms Dunkerley’s injury resulted from reasonable administrative action undertaken in a reasonable manner, pursuant to section 5A(2) of the Act;
· if not, whether liability should be accepted under section 14 of the Act for ‘aggravation of adjustment disorder with anxiety’.
Background
10. Ms Dunkerley joined the Industry and Small Business Policy Division (Division) of the Department on 22 January 2009 in an Australian Public Service Level 6 (APS6) position. She was regarded as a happy and productive member of the Division until 21 July 2009, when she left work as a consequence of an interview process in which she had been unsuccessful.
11. As a consequence, she suffered an aggravation of an earlier accepted condition of adjustment disorder with anxious mood, which had been in remission. Ms Dunkerley said her condition arose after she received advice following a selection process for an Executive Level 1 (EL1) position that she 'had not qualified for an EL1 interview, but was invited for charitable reasons'. As she said, 'I had believed [until that advice] that I was attending an interview as a valid candidate'.
12. The circumstances leading to that advice were that in June 2009, Mr Schwager was appointed to chair a selection committee to fill several EL1 positions in the Division. In an undated and unattributed ‘Statement regarding Compensation Claim by Ulla-Maija Dunkerley’ the author states, ‘As someone within the Division, she was interviewed. It is common practice in this Division to interview all internal applicants for a Divisional selection process’. In the Tribunal documents, an email from Mr Tony Greenwell dated 25 November 2009 addressed to Ms Liz Staltari, Injury Prevention and Management Advisor for the Department, states:
If an application was not as strong as others, but the person is known to have merit from their work in the Division, then the Division will recognise this by short listing that person for an interview. It is on this basis that internal applicants will generally be offered an interview. This is a convention as opposed to a formal policy, and ultimately it is up to the selection committee to decide who to short list.
13. The selection committee received 35 applications, 17 of which including an application from Ms Dunkerley, were short listed. Mr Schwager had been familiar with Ms Dunkerley's work, since she had worked closely with him in late 2008 when the Prime Minister had requested assistance in running a small business summit by the Department, which only had a week to set it up.
14. Mr Schwager said he was impressed with Ms Dunkerley’s ability to work under pressure, her commitment and her positive attitude. He said he believed she contributed well to her team. As a consequence, although her written application was not of the same standard as some others shortlisted, he had persuaded the other members of the selection panel to shortlist her.
15. According to Mr Schwager, Ms Dunkerley did not perform well at the interview on 8 July 2009 and she was ranked unsuitable. She had also not done well in a written test, which preceded the interview and was part of the selection process. As a consequence, her referees were not contacted.
16. Mr Schwager said in his statement that he contacted all the unsuccessful applicants on 15 or 16 July 2009 to notify them of the outcome and provide some brief feedback. To the best of his recollection, he had contacted Ms Dunkerley on the evening of 15 July 2009. In evidence at the hearing, Ms Dunkerley said Mr Schwager had provided the feedback in person in his office on Friday 17 July 2009. That was consistent with information in the workers’ compensation claim form lodged by Ms Dunkerley on 1 September 2009, which noted that the injury had occurred ‘in a manager’s office’.
17. Mr Schwager said that in his feedback session with Ms Dunkerley, he believed he had advised her that she had been unsuccessful, that her written application was below par, that she had presented as nervous at the interview, she did not properly address the selection criteria, and that some of her answers lacked depth. He said, however, that her response to managing stakeholders was sound. He invited her to seek further feedback if she required it but she did not do so. That evidence is consistent with the formal ‘Comparative Assessment’ document compiled by the selection committee, and with a file note written by Mr Schwager on 27 July 2009.
18. Ms Dunkerley asserted that Mr Schwager had used the term 'charity' or 'charitable' in his feedback in describing why she had been selected for short listing. Mr Schwager conceded he may have done so 'in the sense that [the Department was] doing something good for Ms Dunkerley by giving an opportunity to demonstrate capabilities that I had observed during the work on the PM's summit and allowing her to progress further in the written process despite a below par written application'. As he said in a file note dated 27 July 2009, 'I may have suggested that she really would not normally have got an interview, but she was given the benefit of the doubt'. At the hearing, Mr Schwager said that 'charitable' is a term he regularly uses, although he has no recollection of having done so on that occasion.
19. On Monday 20 July 2009, the Employment Services Section of the Department sent a letter to Ms Dunkerley advising that her application had been unsuccessful and inviting her to contact Mr Schwager for feedback. That day, at 7.45am, Ms Dunkerley emailed Mr Richard Byron, General Manager, Human Resources and Facilities in the Department, who had given her advice to assist with the interview process. The letter said:
I was unsuccessful in the EL1 promotion round. I was told at the post interview feedback that I was never a contender as my application was invalid. I was advised that the addressal (sic) of the selection criteria with examples not from my current duties was not acceptable. I was only allowed to participate in the interview process out of charity. I found out on Friday, but was too humiliated to email you.
I should have been told this at the outset, and offered a chance to practice my interview skills (which I would have declined on the grounds that I believe my application did not receive fair treatment, and I would achieve nothing except further embarrassment and humiliation).
I apologise for wasting your time, however, the information you gave me was very useful.
I feel destroyed, because I feel I was set up to be part of a sadistic prank.
I will be organising a session with a psychologist, and going to my doctor tomorrow to get extended sick leave. I am too intimidated to discuss any of this with my supervisor in the workplace because I just don't understand the rules of engagement.
20. Ms Dunkerley obtained a medical certificate from a general practitioner, Dr John Sanderson, at the Phillip Medical and Dental Centre (Phillip Medical Centre) on 21 July 2009, saying Ms Dunkerley had suffered an adjustment disorder that was substantially contributed to by her employment, and certified her unfit for work from 20 July 2009 to 31 August 2009. He also recommended counselling. His clinical notes indicate that Ms Dunkerley had arranged for an appointment with a psychologist and that he had prescribed Temaze, medication used for insomnia and to control anxiety.
21. Further medical certificates to the same effect were obtained from the Phillip Medical Centre on 11 August 2009 and 28 August 2009. Summonsed clinical notes from Ms Anna Crichton, a clinical psychologist, on 18 August 2009, recorded Ms Dunkerley saying she wanted to work but also wanted 'to feel safe'. In a report of 19 August 2009, Ms Crichton considered Ms Dunkerley presented with symptoms of anxiety and depression relating to bullying in her previous workplace and feeling marginalised, unwelcome and demeaned in her current workplace. The reason advanced was that when she had been appointed to the APS6 position in the Department her supervisor, according to Ms Dunkerley, had indicated she had not wanted Ms Dunkerley and that she was only doing APS5 work.
22. On 1 September 2009, Ms Dunkerley lodged a claim for workers' compensation for an 'aggravation to adjustment disorder with anxious mood', which she first noticed on 20 July 2009 and for which she first sought treatment on 21 July 2009.
Consideration
23. Comcare agreed in its reviewable decisions of 11 February 2010 and in its statement of facts, issues, and contentions that Ms Dunkerley was an ‘employee’,[10] being employed by an Agency, namely, the Department; that she suffered from an ‘ailment’,[11] namely, aggravation of adjustment disorder with anxious mood, which was outside the boundaries of normal mental functioning and behaviour.[12] In turn, that ailment was a ‘disease’,[13] which also means Ms Dunkerley had suffered an ‘injury’.[14] Both parties also accepted that Ms Dunkerley’s employment had contributed to her condition to a significant degree.[15] The Tribunal accepts, based on the evidence, that these concessions were properly made.
[10] Act, ss 4(1), 5.
[11] Act, s 4(1) – definition of ‘ailment’.
[12] Comcare v Mooi (1996) 69 FCR 439.
[13] Act, s 5B.
[14] Act, s 5A.
[15] Act, s 5B(1).
24. It was also agreed that the date of injury was deemed to be 20 July 2009. That was the date on which Ms Dunkerley informed Mr Byron and her Division that she would not be in to work and intended to obtain a medical certificate for extended sick leave. As she said, ‘I am too intimidated to discuss any of this with my supervisor in the workplace because I just don’t understand the rules of engagement’. On 21 July 2009, she obtained a medical certificate certifying her to be on sick leave until 31 August 2009.
25. The date of injury is either the day on which the person ‘first sought medical treatment for the disease', or the day when the disease ‘resulted in incapacity for work’.[16] In Ms Dunkerley’s case, her psychological condition ‘first resulted in the incapacity for work’ on 20 July 2009, when she said she could not face discussing the issues with her supervisor, or 21 July 2009, when she went to the Phillip Medical Centre and obtained a medical certificate. Nothing turns on which of these two dates is chosen and the Tribunal is prepared to accept that the date of injury was 20 July 2009.
[16] Act, s 7(4).
26. The principal contested issue is whether Ms Dunkerley’s ‘injury’ was not compensable because it was ‘suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [her] employment’.[17] The relevant provision under which the exclusion is said to arise is that the administrative actions relating to Ms Dunkerley were ‘a reasonable appraisal of the employee’s employment’.[18]
[17] Act, s 5A(1).
[18] Act, s 5A(2)(a).
27. The ‘appraisal’ relates both to Ms Dunkerley being appraised, that is, assessed, as suitable for short listing, and to the appraisal or assessment of her performance at interview in the feedback session after the appointments round concluded.
‘Reasonableness of administrative action’
28. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful.[19] In addition, for ‘administrative action’ to be reasonable, it must be established that there was nothing ‘untoward’ about the actions involved.[20] The actions must also not be ‘irrational, absurd or ridiculous’.[21]
‘Administrative action taken in a reasonable manner’
[19] Comcare v Chenhall (1992) 37 FCR 75.
[20] Re Gilbert and Comcare [2009] AATA 224, para 33 (DP Hack).
[21] Repatriation Commission v Webb (1987) 13 ALD 421, 421 (Beaumont J).
29. The question of whether ‘administrative action’ is taken ‘in a reasonable manner’ is a question of fact and must be considered on an objective basis.[22] Matters that should be taken into account in that consideration include the circumstances leading to and flowing from any relevant administrative action, the particular circumstances of the individual known to the employer or which could have been discovered by simple inquiry, and any relevant corporate policy framework within which the actions took place.[23] These principles will be applied to the circumstances involved in this case.
[22] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105, 128 (French J).
[23] Re Georges and Telstra Corporation Ltd [2009] 731, paras 22, 33; Re Reubinson and Comcare [2010] AATA 676; Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.30. The relevant corporate policy framework in the case of a selection process is found in the Department’s Policy Statement on Recruitment, Selection and Engagement (Policy Statement), Version No 3, dated March 2008. These policies provide the legal framework within which selection committees must act albeit as policy they should not be interpreted in a narrow or pedantic fashion.[24]
[24] Kucks v CSR Ltd (1996) 66 IR 182.
31. The Department's Policy Statement sets out the principles and procedures for managing the selection process. In broad terms the Policy Statement provides under the heading 'Principles’, that employment decisions are ‘based on merit’; selection will be ‘free from patronage, favouritism or discrimination’, and engagement and merit selection actions will be ‘streamlined, efficient and timely’.
32. The notion of merit in the recruitment process is dealt with in Part 1 of the Policy Statement. Merit includes that selection will result from a ‘competitive selection process’; that an assessment will be 'based on the relationship between the candidate's work-related qualities and the work-related qualities genuinely required for the duties'; that the assessment focuses on the ‘relative capacity of the candidates to achieve outcomes related to the duties’; and the ‘assessment is the primary consideration in making the decision’.[25]
[25] Department of Innovation, Industry, Science and Research, Policy Statement: Recruitment, Selection and Engagement (March 2008, version 3) (‘Policy Statement’), 2.
33. The Selection Process is dealt with in Part 3 of the Policy Statement. The delegate and members of the selection advisory committee are to ensure that ‘consistent assessment is applied to all applicants’, and the responsible delegate must ensure that the ‘decision satisfies the process of this policy’, that the selection process is based on procedures which ‘achieve organisational objectives’, are 'free of patronage, favouritism or discrimination' and are 'based on principles of merit, equity and procedural fairness'. [26]
[26] Id, 8.
34. Processes available to assess the relative merit of applicants, include, if interviews are to be conducted, establishing a short list of applicants, finalising a shortlist after contacting referees, and completing the selection by making an assessment based on conducting interviews and/or conducting performance tests.[27] The purpose of short listing is to decide which candidate will be considered further. Only those candidates with ‘very strong claims to the position’ should be shortlisted for interview, and the method of short listing ‘is a matter for each [selection advisory committee]’.[28]
[27] Id, 10.
[28] Id, 11.
35. The outcome of the recruitment process must be documented, including a selection report and recommendation. For those interviewees not assessed as suitable, a relevant note stating the primary reason should be on their individual assessment as sufficient documentation of this outcome. All applicants have a right to seek feedback about how they went in the selection process and, as such, the selection committee must retain sufficient information to provide feedback and/or counselling to all candidates.[29]
Were the administrative actions ‘reasonable’?
[29] Ibid.
36. In the circumstances relating to Ms Dunkerley’s claim, the Tribunal finds the Selection Advisory Committee, chaired by Mr Schwager, followed the procedures set out in the Policy Statement. The positions were advertised, there was a panel of three persons, applicants were shortlisted and of the 35 who applied only 17 were offered an interview, the panel set up a written test as part of the process, documentation of the selection process was kept, and Mr Schwager provided feedback to the unsuccessful applicants. These aspects of the procedures complied with the principles underpinning the Policy Statement and the particular procedures in the selection process.
37. Ms Dunkerley claimed that as the file note of 27 July 2009 by Ms Schwager said ‘she did not present any examples of how her current work in the Division addressed any of the selection criteria’ and that this criticism was not recorded in the ‘Comparative Assessment’ summary of the selection committee document for Ms Dunkerley, the process was not lawful. However, clause 3.10 of the Policy Statement only requires under ‘Documenting the outcome’, that a ‘relevant note stating the primary reason should be on [the applicants’] individual assessment’ (emphasis added). Hence no legal error is identified. In any event, although the Policy Statement is regarded as governing the processes of selection, it remains a policy statement with limited legal status and can be departed from if circumstances so require.[30] On balance, the Tribunal finds that as Mr Schwager and the selection committee followed the procedures in the Policy Statement, and as a matter of judgement there was nothing ‘untoward, irrational, absurd or ridiculous’ about what they did, their actions were lawful.
Were the administrative actions ‘taken in a reasonable manner’?
Short listing
[30] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J; Wetzel v District Court of New South Wales (1998) 43 NSWLR 687, 693 (Priestley JA); British Oxygen Co Ltd v Minister of Technology [1971] AC 610, 625 (Lord Reid).
38. The principal issues that govern whether Mr Schwager’s actions were taken in a reasonable manner arise from the principles and criteria in the Policy Statement. Mr Schwager knew about Ms Dunkerley’s work performance from the week in which they worked together on the Small Business Summit in late 2008. However, his seniority as compared to Ms Dunkerley means he would not have directly supervised her.
39. On that basis, and in the light of his emphatic denial at the hearing that he knew anything about Ms Dunkerley’s previous medical conditions, the Tribunal finds that he was not aware that she had earlier suffered a psychological injury and had been made redundant; and that she had returned to work, without, as she and her medical advisers had requested, a return to work management plan. Nor would it have been reasonable for him to have discovered that information, given their limited contact in the workplace, her laudable performance while working with him on the Summit, and the fact that she had applied for an EL1 position, thus implying her belief in her developing capability. So, apart from that week of working together, Mr Schwager’s knowledge of any particular circumstances relating to Ms Dunkerley was limited and to that extent his actions in the short listing of her were taken in a reasonable manner. That leaves for consideration any other circumstances of the short listing of Ms Dunkerley.
40. Ms Dunkerley contended that short listing her on the basis that her application be given ‘the benefit of the doubt’ was to take a ‘favourable’ or ‘advantageous’, that is, charitable approach. In her view, this was contrary to the principles in the Policy Statement that selection be based on merit and be ‘free from patronage, favouritism, or discrimination’. As she suggested, ‘the benefit of the doubt’ includes giving ‘a favourable judgement … in the absence of full evidence’ and ‘favouritism’ is ‘the unfair practice of giving someone help or advantages that you do not give to others’. In her view, she had received positive discrimination and she disliked any form of discrimination. In her view this was insulting, demeaning, and diminished the fairness of the process.
41. She also claimed that on these facts the requirement in the Policy Statement that ‘only those candidates with very strong claims to the position should be shortlisted’ was breached. In her view, these principles were not followed when she was shortlisted and hence the administrative actions were not taken in a reasonable manner. When asked whether other applicants had been given ‘the benefit of the doubt’ in being shortlisted, Mr Schwager confirmed that others had been in that category.
42. Ms Dunkerley also argued that the definition of ‘merit’ in the APS Values in the Public Service Act 1999 (Cth) section 10(1)(b) requires that a selection process must be ‘fair and objective’ and ‘fairness’, as she claimed, involves ‘conforming with established standards or rules’. In her view, the standards and rules in the Policy Statement had not been followed.
43. To so argue is to neglect other aspects of the Policy Statement. The requirement that the procedures relating to the selection process should be based on ‘principles of merit, equity and procedural fairness’ permit a degree of latitude. Ms Dunkerley did not address the notion of ‘equity’. The meaning of that term as taken from the Macquarie Dictionary is: ‘1. the quality of being fair or impartial; fairness; impartiality; 2. that which is fair and just’.[31]
[31] Macquarie Dictionary (3rd ed, 2001) 636.
44. Since fairness and objectivity (that is, impartiality) are referred to separately in section 10(1)(b), it is the second of those dictionary meanings of ‘equity’ that is the most apt. For a decision to be ‘just’ invokes notions of giving a person what they deserve.[32] To be fair and just permits the decision-maker to take into account matters other than those criteria listed as relevant to a process or a position, including personal knowledge by the members of a selection committee of an applicant’s ability.
[32] Id, 1030 (meaning of ‘just’).
45. That flexibility is reinforced by the principle that the method of short listing ‘is a matter for each [selection advisory committee]’. In other words, there is a residual discretion in the selection committee that sanctions the taking into account, when short listing, of evidence of ability based on personal knowledge of a member of the panel. That is consistent with the need for agencies to achieve the outcome that best serves the interests of the agency. Indeed, Mr Schwager in evidence to the Tribunal said that there was an element of ‘selfishness’ rather than ‘favouritism’ on the part of the Department in deciding to give some applicants the benefit of the doubt in the short listing process in the belief that their work performance belied a below par application.
46. This knowledge can, accordingly, be taken into account when deciding which applicants have ‘very strong claims to the position’. That is neither ‘patronage’ nor ‘favouritism’ with the negative connotations that these terms conjure up, nor is it to deny the ‘merit’ principle. Mr Schwager said at the hearing that Ms Dunkerley was not the only applicant whose written application was below standard. Indeed he said possibly half of those who applied had submitted applications which were below standard. Ms Dunkerley’s application was, therefore, among a number of those interviewed whose applications had the same deficiency.
47. The performance at interview as well as the application, the written test, the interview report and referees’ comments, provide the holistic information within which the panel can then assess suitability for appointment. Being shortlisted alone is, therefore, no guarantee of success. It does not unduly advantage an applicant since the panel must be convinced of their claim based on all these sources. The advantage of short listing a person is that it gives the panel a chance to obtain better information about the capability of persons who do not meet all the stated criteria but who have the potential to be effective officers and to make a contribution to the specific workplace. That is, there is nothing to suggest that the panel had a closed mind or that its ultimate assessment of the applicant or any other interviewee was based on matters other than merit. The Tribunal finds that this practice does not breach the principle in Part 3 of the Policy Statement that the ‘assessment is the primary consideration in making the decision’.
48. Ms Dunkerley also objected to the fact that it was a convention or practice in some parts of the Department to interview all internal candidates. In her view, this was unfair to external candidates. This practice was referred to in the undated and unattributed Statement to Comcare in relation to Ms Dunkerley’s compensation claim. A more considered view of the practice was provided in the email from Mr Tony Greenwell to Ms Liz Staltari on 25 November 2009. That email said that the practice applied to those ‘known to have merit from their work in the Division’, a description which covers Ms Dunkerley. However, as Mr Schwager said, ‘The Department has no formal policy’ to that effect. He also confirmed at the hearing that it was not his policy to do so. Mr Schwager said his regard for Ms Dunkerley’s work meant he regarded her as a strong contender and that is why he persuaded the panel to short list her.
49. The Tribunal finds that the policy was not universally followed within the Department much less the Division and that there was a degree of flexibility in the practice of whether an internal candidate would be short listed. In Mr Schwager’s case, his evidence was that he did not apply any such practice as a matter of course. In any event, the practice of giving internal candidates an interview when they might not have been shortlisted on their application alone is a managerially sound one, given the Department’s knowledge of the person’s capability, and the importance for management of ensuring harmonious relationships within the workplace by fostering promotional opportunities for staff within the agency. It is also sanctioned by the discretion given to selection committee by the Policy Statement. The Tribunal finds that this action was not taken in an unreasonable manner.
50. Finally, Ms Dunkerley objected to the fact that her referees were not contacted, despite the Policy Statement suggesting that finalising the shortlist occurs ‘after contacting referees’. Mr Schwager confirmed at the hearing that on occasion referees’ reports were called for prior to short listing, but that practice had not been followed for this round.
51. The Tribunal finds that there was nothing managerially inappropriate in adopting a practice of seeking referees’ reports after, rather than prior to, the interview process. The number of positions to be filled was six, but seventeen people were interviewed. There would have been a heavy administrative burden in contacting seventeen sets of referees. In any event, the Policy Statement is no more than a policy; it has no binding legal force. It is also common practice for efficiency reasons not to contact referees until after the interviews have resulted in a shortlist for appointment. That is permitted given that the method of short listing is at the discretion of the selection committee. Overall, the Tribunal finds that the management actions in connection with the short listing process were taken in a reasonable manner.
Feedback
52. The factor that contributed most to the aggravation of Ms Dunkerley’s injury was the terms apparently used by Mr Schwager in his feedback to her after the process concluded. Her evidence is that he used the word ‘charitable’ and said that despite her below par application, the panel had given her the ‘benefit of the doubt’ when short listing her. The shock of discovering, as she perceived it, that her application had not been shortlisted on its merits so distressed her that she suffered an aggravation of her earlier psychological condition and spent considerable time following this feedback away from the workplace.
53. At the hearing, Mr Schwager conceded he might have used the work ‘charitable’ since he said it was a term which was part of his ‘day-to-day vocabulary’. However, he had no recollection that he had done so. He confirmed that his file note of 27 July 2009 was his best record of his recollection of his feedback. However, he conceded that it contained dates that were not all correct. He also conceded that his feedback may have been given to Ms Dunkerley in person rather than by telephone as his file note and statement suggest.
54. In relation to the contested issue of whether Mr Schwager’s feedback was given to Ms Dunkerley in person or by telephone, the Tribunal accepts Ms Dunkerley’s evidence as more reliable. In other words, the Tribunal finds that it is more likely than not that Mr Schwager gave feedback to Ms Dunkerley in his office on the Friday afternoon, 17 July 2009. The Tribunal’s findings is made in light of the clarity of Ms Dunkerley’s recollection, the fact that she was then so upset by the information over that weekend, that at 7.45 am on the Monday morning she emailed Mr Byron and informed him she would not be coming into work, and her reference in her workers’ compensation claim dated 1 September 2009 to the ‘injury’ having occurred ‘in a manager’s office’. The first two of these factors suggest that the information was provided late the previous week, which is consistent with Ms Dunkerley responding first thing on Monday 20 July 2009, the next working day. In addition, the number of candidates Mr Schwager had to contact and the likelihood that his memory was, accordingly, a little hazy as to dates, times and places is another reason the Tribunal prefers her evidence. The Tribunal accepts, however, that he may have tried to contact Ms Dunkerley by telephone on one or other of the two previous days and had not been successful.
55. Mr Schwager said the feedback given to Ms Dunkerley could have taken about five minutes. That was consistent with Ms Dunkerley’s recollection since she said she was so shocked that she did not ask any questions at the end. Her own view of the amount of time involved was clouded because she said the comment about the interview being ‘charitable’ was provided early on in the conversation and this so upset her that she ‘lost sense of time’. However, Ms Dunkerley did acknowledge at the hearing that Mr Schwager handled the feedback in a ‘professional and polite’ manner and that he had offered to provide more extensive feedback if she sought it.
56. Mr Schwager said of his claimed use of the work ‘charitable’ that, in his view, to be ‘charitable’ was to be good to someone. Ms Dunkerley, however, perceived even use of the term in that sense as patronising. The Tribunal notes that the term can have that connotation, but in its view, this was not Mr Schwager’s intention. Rather he was attempting to give Ms Dunkerley an opportunity to show at interview that her capability that she had demonstrated when working with him would justify her promotion. As he said, he had observed her ‘resilience, tenacity, and ability to get the work done‘ within tight timeframes, and that these were ‘strong qualities’ from which the Department could benefit. For that reason, despite her application, he had given her ‘the benefit of the doubt’. The Tribunal finds this was not to be ‘charitable’ in its patronising sense, but to exercise a judgement, in light of the discretion permitted to selection panels, in an attempt to recruit the best candidates for the Department. That was a legitimate management action and was not taken in an unreasonable manner.
57. Ms Dunkerley also claimed it was unreasonable for Mr Schwager to give her feedback about her performance which went beyond the information in the ‘Comparative Assessment’ notes made by the panel. In response, the Tribunal notes again that the panel was only required to record the minimum requirement for the decision, including the ‘primary reason’ or reasons for the assessment. That left it open to the Chair when giving feedback to give more fulsome information. Moreover, it was not unreasonable for Mr Schwager, as chair of the panel, given his personal practice of providing clear and helpful feedback to unsuccessful applicants after an appointments or promotion round, to go beyond what was written in the necessarily brief notes in the ‘Comparative Assessment’ element of the selection panel’s documentation. There was no breach of the Policy Statement in this regard.
58. Ms Dunkerley also asserted that it was unreasonable for Mr Schwager to note that the panel considered she did not present examples of how her current work addressed the selection criteria, when her immediate supervisor had indicated to her that she was only doing the work of an APS5, that is, she was not involved in doing work which was comparable to someone at an EL1 level. In addition, she also noted that the selection criteria did not specifically request examples of current work in the Division.
59. The Tribunal finds that despite the selection criteria failing specifically to seek examples of current work, there was nothing unfair or unreasonable in a selection committee considering as relevant whether an applicant can give examples of current work which address the selection criteria. Examples are always appropriate to give substance to claims of ability to fulfil criteria and absence of such experience is also relevant to whether an applicant will be capable of stepping up to the next level of performance. In those circumstances this, too, was not an element of the process which was conducted in an unreasonable manner.
60. On an objective basis and in summary, the Tribunal finds that the actions by Mr Schwager and the selection panel members were not a ‘sadistic prank’ as claimed by Ms Dunkerley on 20 July 2009, and that they complied sufficiently with the procedures and principles outlined in the Policy Statement. In these circumstances, the feedback was not untoward, irrational, absurd or ridiculous.
61. Although it may have been more sensitive for Mr Schwager to have used terms other than ‘charitable’ and ‘the benefit of the doubt’ when he gave Ms Dunkerley feedback, his practice to be honest with unsuccessful candidates, and his intention to indicate that he genuinely believed from his experience of working with her that Ms Dunkerley deserved an interview, indicates he had no intention of being patronising or demeaning in his assessment. The Tribunal accepts that he was a busy manager, he was giving feedback to nine applicants who had been unsuccessful, and he had no knowledge of Ms Dunkerley’s sensitivities. On that basis, the manner in which feedback was provided to Ms Dunkerley was also not unreasonable.
62. The Tribunal affirms the decision under review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .......................[sgd]..................................
C. Kocak, AssociateDate/s of Hearing 29 October 2010
Date of Decision 17 November 2010
Counsel for the Applicant Self-represented
Counsel for the Respondent Sophie Callan
Solicitor for the Respondent Dibbs Barker
[23] Id, 44-5.
7
13
0