Re Findlay and Comcare
[2013] AATA 324
[2013] AATA 324
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3212
Re
John Findlay
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 21 May 2013 Place Melbourne The reviewable decision denying liability to compensate Mr Findlay in respect of an adjustment disorder, made by Comcare on 25 May 2012, is affirmed.
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Deputy President J W Constance
CATCHWORDS
COMPENSATION – adjustment disorder – whether applicant suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act - reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1) 5A, 5B, 7(4), 14(1)
CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Georges and Telstra Corporation [2009] AATA 731
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
INTRODUCTION
In December 2011 Mr Findlay lodged a claim with Comcare seeking compensation for a mental condition he claimed he suffered as a result of a meeting held with his supervisor at the Department of Human Services.
Comcare rejected his claim on the basis that the meeting was reasonable administrative action and that it was taken in a reasonable manner in respect of Mr Findlay's employment. Under the Safety, Rehabilitation and Compensation Act 1988 (Cth) an injured employee is not entitled to compensation if his or her injury is a result of such action.
Mr Findlay has applied for a review of this decision. For the reasons which follow the decision under review will be affirmed.
EVIDENCE AND FINDINGS OF FACT
Unless stated otherwise the following findings of fact are based on the evidence of Mr Findlay.
Mr Findlay is 48 years old. He has been a member of the Australian Public Service since 1983.
In 2011 Mr Findlay was a Team Leader (APS 6 position), employed by the Department of Human Services, Child Support Agency in its Dandenong office. He supervised a team of approximately 14 members. Between February 2011 and June 2011 Mr Findlay was responsible for managing the transition of his team from working on a special project to assisting in the mainstream work of the Agency. This transition caused some difficulties in the management of the team which in turn caused Mr Findlay to suffer stress. However, with professional assistance he was able to manage his feelings of stress and was able to fulfil his role as Team Leader.
In August 2011 Mr Findlay took planned leave. From late August 2011 until November 2011 Mr Clarke, who worked in the Melbourne office, was Mr Findlay’s supervisor. Shortly after Mr Clarke commenced in this position Mr Findlay formed the view that Mr Clarke was not showing any interest in his team. He felt unsettled by this.
On Thursday 3 November 2011 Mr Findlay was absent from work. On his return the following day he was advised of an incident in which a member of his team had become distressed and made remarks disparaging of the team and Mr Findlay's management of it. He was told also that the team member had threatened to harm herself.
On the morning of Friday 4 November 2011 Mr Findlay was told by a colleague that Mr Clarke was on his way to the Dandenong office. Later that morning Mr Clarke arrived and met with Mr Findlay.
Mr Findlay and Mr Clarke vary in their recollections of what was said at this meeting, which is not surprising bearing in mind the time which has elapsed since it took place. However on the basis of the evidence of both Mr Clarke and Mr Findlay I am satisfied that at least the following happened:
·there was some discussion as to problems being experienced by Mr Findlay's team and Mr Findlay's management of those problems;
·when asked by Mr Clarke if he wished to have a support person present during their discussion, Mr Findlay said that he did not; Mr Findlay was confused by this question as he did not understand the reason for it;
·Mr Clarke advised Mr Findlay that he intended to return to the Dandenong office the following Monday (7 November 2011) to talk to the team members;
·Mr Clarke offered Mr Findlay the opportunity to be absent from the office on the Monday; Mr Findlay initially declined this offer but later accepted it and was absent from work on that day;
·Mr Findlay felt “ambushed”[1] during the meeting as he did not understand why Mr Clarke had not discussed in greater detail the events of the previous day as he (Mr Findlay) believed this was the purpose of the meeting;
·
Mr Findlay and Mr Clarke agreed that they would meet on 8 November 2011 in the Melbourne office.
[1] Exhibit R1 p.63.
Mr Clarke met with several team members on 7 November 2011. As a result of what he was told at these meetings Mr Clarke formed the opinion that there were a number of matters in the team’s performance which needed improvement and that there needed to be a plan put in place to assist Mr Findlay to fulfil his leadership role.[2]
[2] Exhibit R8 para.34.
On 8 November 2011 Mr Findlay attended the Melbourne office. He attended a Team Leaders meeting at which Mr Clarke was present.
Immediately following the Team Leaders meeting Mr Findlay and Mr Clarke met as they had previously arranged. Mr Findlay described the meeting as follows:
I said to Matt, “What time are we pencilled in for?” His response was a short, sharp, “Now!” I followed him to a small meeting room. As we entered I made comment, “I suppose yesterday was a long day for you.” He retorted, “Yes, a very long day!”
Immediately, I felt intimidated and I adopted a defensive mindset.
Matt proceeded to launch a vicious, sustained attack on me. He said that the staff he spoke with the previous day all had something to say about me – “including (X).” He said that staff said I bullied and harassed them. He conceded a couple of staff had agendas.
He stated the work environment was toxic. He repeatedly stated that I had no idea of the impacts I have on staff. He stated “I was not a Team Leader!” At one point, I questioned Matt as to the level of support that I and the other team leader at my site, might expect. His response was “cut it out John, you are an ASO 6.” Matt threatened me with a Code of Conduct investigation being instigated and stated, “You are going to come and work in Melbourne with me for the next 3 and a half months.”
Matt’s non-verbal expression was particularly intimidating to me. He leant forward when making some strong assertions and at times his face was red and also a shade of purple. He spoke at me and consistently raised his voice. I felt he was attempting to provoke me.
I indicated early in the discussion that I was not intending to defend myself against allegations which were neither real nor current. I attempted to explain that during the course of 4 and a bit years’ employment with Child Support Program, some old allegations are brought up which are not current examples of behaviour. In fact, Matt brought up one example which I challenged because it was brought up years ago and hasn’t been an issue since it was brought to my attention.
No specific allegations or examples were provided to me other than the aforementioned; one other incident where I was approached by a staff member with a technical question which I answered and she proceeded to challenge; and a suggestion that staff had contacted customers after I had given them incorrect information. I was not informed as to what had transpired in these examples and not provided with any opportunity to explain or refute the information.
After a period of time, I motioned to pack my things up and to leave the room/meeting. Matt said, “Where are you going?” I said, “I am going.” Matt told me to, “sit down!” I sat down. I remained for I would say, another fifteen or so minutes. I again motioned to leave, as the conversation was simply repeating itself and no progress was being made. Matt asked where I was going and I repeated, “I was going.” he [sic] told me to sit down but I said, “no, I’m going.” I left to obtain my work satchel/bag and matt [sic] followed. I cannot recall exactly what he said to me but it was along the lines that this isn’t resolved and we need to resolve it. I said that at this stage the information put to me was hearsay and left the floor and the building after returning my visitor’s access pass. I returned to the Dandenong office.[3]
[3] Exhibit R1 pp.63-64.
Mr Clarke provided a statement dated 19 February 2013[4] and gave evidence. In his statement Mr Clarke described the meeting as follows:
37. I started to talk to John about the issues that had been raised by his team, referring to [a document] …. I did present this to John so that we could discuss the items. John did not review the document in the meeting nor did he take the document with him.
38. John became agitated, disputed what I was saying and asked for examples. John said that he thought we were ganging up on him. He said that he felt ambushed and didn’t know what it was all about.
39. I tried to return the conversation to John’s current team, and his performance as team leader. I noted that I had spoken to 10 team members, and each person I’d spoken to had said the same thing; that is, at times generally they would gauge whether they would talk to him based on his mood for the day or based on the workload he was experiencing they found John to be unapproachable and difficult to talk to.
40. I told him John that he needed to understand how people perceive him, and asked him what he thought it was about the relationship that needed to be different. I told him that the team members perceive him as not having time for them. I went on to explain that I was not able to say whether this is, but rightly or wrongly, that is how people perceive him. I said that no matter whether the issue was them or him, there were things that John would need to try to work through.
41. I explained that what we needed to do was to go through a process as to how this would be done as there was enough evidence to warrant some support in workload, support and technical advice. I did refer to a performance management process, and to the possibility of John spending time with team leaders in Melbourne so that he would have an opportunity to observe and learn from others. Melbourne team leaders had been in the Rostered Telephony Environment for years.
42. At that point, John went to leave the meeting. I asked him to stay, saying that we needed a common ground going forward. I noted that as a team leader he needed to manage the relationships within his team and the workload of the team, and I was concerned that he did not seem to be doing this. John did in fact leave the meeting before an agreed approach was reached.
[4] Exhibit R8.
The document Mr Clarke referred to is in evidence.[5] It is a summary of matters raised by team members during Mr Clarke’s meeting with them on 7 November 2011. On the basis of Mr Clarke’s evidence I am satisfied that it is an accurate record of the matters raised by the team members to whom he spoke. I am satisfied also that Mr Clarke showed this document to Mr Findlay during the meeting on 8 November 2011 although Mr Findlay did not read it at the time.
[5] Attachment “MC-2”, exhibit R8.
Having considered the evidence of both Mr Findlay and Mr Clarke I am satisfied that Mr Clarke did not engage in conduct which could properly be described as “a vicious, sustained attack” on Mr Findlay. I am satisfied also that Mr Clarke did not conduct himself in an intimidating manner towards Mr Findlay nor did he attempt to provoke him. It is probable that Mr Clarke raised his voice from time to time. In making these findings I do not find that Mr Findlay deliberately gave false evidence to the Tribunal. I am satisfied that his perceptions of the meeting were affected by the events which had preceded it and the “defensive mindset” which he adopted.
Following the meeting Mr Findlay felt very upset. He returned to the Dandenong office. He left work early and went home. He consulted Dr Naidoo, his general practitioner, as soon as he was able to obtain an appointment.
EVIDENCE OF HEALTH PROFESSIONALS
Report of Dr Naidoo, General Practitioner
Although this report is dated 2011 the content of the report makes it clear that it was written in 2012.[6]
[6] Exhibit R1 pp.65-67.
Mr Findlay consulted Dr Naidoo on 10 November 2011 “complaining of poor sleep, loss of appetite and abdominal distress following an incident at work. He believed that his symptoms and increased levels of anxiety were related to the incident, where a female co-worker had threatened to commit suicide. He stated he felt his boss had acted aggressively towards him, blaming him for the incident.”
Dr Naidoo was of the opinion that Mr Findlay suffered acute situational anxiety and that the incidents referred to contributed to this condition. He noted that Mr Findlay's records indicated that he had previously experienced high stress levels at work and had attended counselling for this. There was no record of previous psychological diagnosis.
Report of Dr Petrulis, Psychologist
Mr Findlay was referred to Dr Petrulis by Dr Naidoo. He attended Dr Petrulis for six counselling sessions between 17 November 2011 and 28 January 2012.
On 10 February 2012 Dr Petrulis reported[7] that Mr Findlay was suffering “adjustment disorder with mild depression and mild stress secondary to traumatic work related situation late 2011.” In his opinion the stressor was bullying at work by Mr Findlay's manager.
[7] Exhibit R1 pp.139-144.
Dr Petrulis reported further that the only history of previous mental disorder was two brief and mild episodes approximately 10 years earlier and at the beginning of 2011. In his opinion these episodes of stress have not compromised Mr Findlay's functionality and the present adjustment disorder is not an aggravation of a pre-existing condition.
ISSUES FOR DETERMINATION
Comcare concedes that Mr Findlay has suffered a “disease” within the meaning of the Act as his claimed condition is an “ailment” suffered by him that was contributed to a significant degree by his employment by the Commonwealth. It is conceded also that the meeting between Mr Findlay and Mr Clarke on 8 November 2011 contributed to his condition to a significant degree. I am satisfied these are proper concessions.
In view of these concessions only two issues arise for consideration.
(1)Has Mr Findlay suffered an “injury” within the meaning of the Act?
(2)If so, when did he suffer the “injury?”
LEGISLATION
Under s14(1) of the Act Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.
“Injury” is defined in section 5A in part as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee;
…
but does not include a disease … 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.
“Disease” is defined in section 5B:
(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.
…
(3)In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Subsection 7(4) makes special provision for determining the date on which an “injury”, being a “disease”, is suffered:
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
CONSIDERATION OF THE ISSUES
Issue 1: Has Mr Findlay suffered “an injury” within the meaning of the Act?
As it is not in dispute that Mr Findlay has suffered a “disease” as defined, it is necessary to decide whether the disease was suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.” If the meeting was:
(a)“reasonable administrative action”; and
(b)“taken in a reasonable manner”; and
(c)“in respect of [Mr Findlay's] employment”,
then the exclusionary provision of the definition of “injury” applies and the condition from which Mr Findlay suffers does not come within the definition of “injury” in section 5A and compensation is not payable under section 14. It does not matter that other factors, not excluded by the definition, may have contributed to Mr Findlay's condition: Hart v Comcare. [8]
Was the meeting between Mr Findlay and Mr Clarke on 8 November 2011 “reasonable administrative action”?
[8] (2005) 145 FCR 29.
The meeting took place as a result of a series of events which included:
·an incident involving a team member threatening self-harm;
·the meeting between Mr Findlay and Mr Clarke during which Mr Clarke told Mr Findlay that he intended meeting with members of the team and that he would meet with Mr Findlay again after he spoke to them and during which he gave Mr Findlay an opportunity to have a support person with him;
·Mr Clarke’s meeting with team members who expressed dissatisfaction with the manner in which Mr Findlay was fulfilling his role as Team Leader.
Mr Clarke was Mr Findlay's immediate supervisor and was responsible for the efficient operation of the team being led by Mr Findlay. I am satisfied that the events which took place required prompt action to address what was clearly an unsatisfactory workplace situation. In the circumstances presented to Mr Clarke on 3 November 2011, and taking into account the actions of Mr Clarke leading up to the meeting on 8 November 2011, I am satisfied that the holding of the meeting was “reasonable administrative action”.
Was the administrative action “taken in a reasonable manner”?
I have found that the meeting was conducted in the manner described by Mr Clarke. This was a meeting between two experienced public servants, one of whom was the immediate supervisor of the other. At the time Mr Findlay was 46 years old and had approximately 28 years’ experience in the Public Service. It is reasonable to expect that there would have been some tension between the two individuals concerned and that at times voices would have been raised. In my view it was reasonable for Mr Clarke to require Mr Findlay to remain in the meeting when Mr Findlay indicated he was about to leave.
The section requires that the manner in which the administrative action is taken be “reasonable”. It does not require that the action be faultless. Even if there was a degree of robustness in the conversation, on the facts I have found there was nothing in the conduct of the meeting itself which indicated that the action taken was taken in other than a reasonable manner. In reaching this conclusion I have considered the manner of conducting the meeting in the circumstances which preceded it, to which I have already referred. I note that this is consistent with the approach taken by the Tribunal in Georges and Telstra Corporation.[9]
Was the administrative action taken “in respect of [Mr Findlay's] employment”?
[9] [2009] AATA 731 [22]-[24].
In considering this provision of the Act the Full Court of the Federal Court said:
… in contrast to a disease that was contributed to by, or an injury or aggravation that arose out of, or in the course of, the employee’s employment, the exclusion in s 5A(1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.[10]
[10] Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, [57].
The discussion between Mr Findlay and Mr Clarke related directly to Mr Findlay's performance as a Team Leader and the effect of his performance on the team led by him. Although not limited to counselling there were elements of counselling in the discussion as to the matters raised by team members and conveyed to Mr Findlay by Mr Clarke. On this basis I am satisfied that the “administrative action”, in the form of the meeting, was taken “in respect of” Mr Findlay's employment as a Team Leader.
Issue 2: When was the “injury” (if any) suffered by Mr Findlay?
As I have decided that Mr Findlay did not suffer an “injury” as defined this question does not arise. Had I decided that there was an “injury” I would have decided that it was sustained on 10 November 2011, being the date on which Mr Findlay first sought treatment for his condition. This is in accordance with subsection 7(4) of the Act.
Mr Findlay gave evidence of a number of incidents in his workplace which occurred prior to 8 November 2011 and which may have contributed to his feeling stressed. Although Mr Findlay's claim was based on the events of the one meeting I have considered whether he may have suffered an injury prior to the time claimed by him in his claim for compensation. However in view of the evidence of Dr Naidoo and Dr Petrulis to which I have referred, I am satisfied that Mr Findlay did not suffer a compensable injury prior to 8 November 2011. On the evidence before me I am satisfied that any stress suffered by Mr Findlay prior to 8 November 2011 was not “outside the boundaries of normal mental functioning and behaviour.”[11]
[11] Comcare v Mooi (1996) 69 FCR 439, 444.
CONCLUSION
The reviewable decision denying liability to compensate Mr Findlay in respect of an adjustment disorder, made by Comcare on 25 May 2012, will be affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
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Associate
Dated 21 May 2013
Date(s) of hearing 7 May 2013 Applicant In person Counsel for the Respondent Ms C Dowsett Solicitors for the Respondent Australian Government Solicitor
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