Re Radulovic and Comcare
[2010] AATA 777
•12 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 777
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3743
GENERAL ADMINISTRATIVE DIVISION ) Re DRAGANA RADULOVIC Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date12 October 2010
PlaceCanberra
Decision The decision under review, to reject liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for ‘adjustment reaction with mixed emotional features’, is affirmed. ............................[sgd]............
Professor RM Creyke, Presiding Member
CATCHWORDS
COMPENSATION – claim for psychiatric condition – ‘date of injury’ when disease first incapacitated for work – exclusion of liability if injury result of ‘reasonable administrative action taken in a reasonable manner’ – whether exclusionary provisions extend to all forms of management action – statutory interpretation principles – underlying purpose of Act – ‘anything reasonable done in connection with’ administrative actions in section 5A(2) – ‘administrative action’ can be inaction – overall disease suffered as a result of exclusionary provisions – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1),(2), 7(4), 14
Acts Interpretation Act 1901 (Cth), s 15AB(1)
Australian Competition and Consumer Commission v Woolworths (SA) Pty Ltd (2003) 198 ALR 419
Comcare v Chenhall (1992) 37 FCR 75
Comcare v Mooi (1996) 69 FCR 439
Domburg v Nurses Board of Victoria [2000] VSC 369
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Hart v Comcare [2005] FCAFC 16
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) 77 ALR 577
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Gilbert and Comcare [2009] AATA 224
Re Lopez and Australian Postal Corporation [2009] AATA 616
Re Reubinson and Comcare [2010] AATA 676
Repatriation Commission v Webb (1987) 13 ALD 421
12 October 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member 1. Ms Dragana Radulovic sought compensation for a psychiatric condition described as an adjustment reaction with mixed emotional features, which she claimed she incurred while working at the Australian National University (ANU).
2. Comcare rejected the claim in a decision of 16 April 2009, a decision upheld on review on 28 July 2009. On 11 August 2009, Ms Radulovic sought review by the Tribunal.
Issues
3. The central issue is whether Ms Radulovic’s condition arose as a result of ‘reasonable administrative action taken in a reasonable manner’ by her employer pursuant to section 5A(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), which excludes Comcare from liability for her condition. Preliminary issues are:
·Whether Ms Radulovic suffered from an ‘injury’, namely a ‘disease’?
·What was the date of the injury?
·Whether any such injury was contributed to, to a significant degree, by her employment with the ANU?
·If yes, was the injury excluded from being compensable under section 5A(2) of the Act because the injury was the result of ‘reasonable administrative action taken in a reasonable manner’?
·If not, is Ms Radulovic entitled to compensation under section 14 of the Act?
Legislation
4. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth). Relevant provisions are:
·Section 14, which provides that compensation is payable ‘in respect of an injury suffered by an employee if the injury results in … incapacity for work’.
·‘Injury’ is defined to include a ‘disease’ (section 5A(1)). In turn, ‘disease’ is defined in section 5B to mean ‘an ailment’, and an ‘ailment’ means ‘any … mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development’ (section 4(1)).
·However, excluded from the definition of ‘injury’ is ‘a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ (section 5A(1)).
·‘Reasonable administrative action’ is defined in section 5A(2)
Background and evidence of Ms Radulovic
5. Ms Radulovic commenced employment with the ANU on 14 February 2002 as a casual employee on a three month contract. Her hours were 10.00 am to 2.00 pm, Monday to Friday. She had previously worked as a kitchen hand and switchboard operator at the Canberra Hospital and as a cleaner at Toad Hall.
6. Ms Radulovic worked in the front office and supported the head and the office manager of Toad Hall, ANU. On 27 March 2003, she was awarded an ongoing position at ANU Level 3, an administrative position.
7. There were effectively three people doing the administrative work: the honorary head of Toad Hall, Mr Selwyn Cornish, the office manager, and Ms Radulovic. Her duties were to cover the front desk, enter the details of the 239 residents of Toad Hall into the computer system and provide tokens for the washing machine. She said she also performed back office duties and administrative work, including entering some financial transactions.
8. Ms Radulovic was on maternity leave for 12 months from 5 October 2003. In June 2004, she was advised that the office manager had died and that there would be changes in her duties.
9. On her return in about October 2004, Ms Radulovic was working with a new manager, Mr Andrei Lena, and Mr Cornish. Ms Radulovic claimed her duties were expanded to include filing, making bookings and cancellations, interacting with customers and residents, producing accounts, arranging cleaning and maintenance staff, ordering supplies and responding to phone and email inquiries. Ms Radulovic regarded these responsibilities as ‘higher level duties’ that she performed but for which she was not paid.
10. In February 2005, Ms Radulovic was asked to extend her working hours to six hours a day, ending at 4.30 pm. These were her hours from then until April 2006, when she took another year of maternity leave, returning in April 2007.
11. On 4 December 2007, Mr Lena departed as manager. Ms Radulovic’s original statement of facts, issues and contentions states that between 5 December 2007 and February 2008 another ANU staff member filled the manager’s position. In evidence at the Tribunal, Ms Radulovic said she managed on her own until Christmas 2008 and, immediately after Christmas, a person came from another ANU Hall to fill the vacancy. Nothing turns on this detail. A new manager, Mr Bob McAlister, started on 25 February 2008 and commenced to make changes to existing procedures.
12. Ms Radulovic said she found Mr McAlister a frightening individual. He was gruff and often appeared angry. On one occasion in March 2008, she was having a discussion with him in the back office and asked Mr McAlister a question about the task which she was undertaking for him, to which he replied ‘You should have thought of that earlier’ and then she said he hit her with a rolled up newspaper. She said some of the residents saw the incident and that she was humiliated, and when she reached her car she started crying. She also said she felt sick all that night.
13. On about 21 March 2008, Mr McAlister told her there was to be an ANU level 5 position advertised for Toad Hall, and she could apply if she wanted. According to her evidence, however, he had also said ‘Don’t apply. You won’t have a chance. A lady from Fenner Hall will get the position’. According to Ms Radulovic, Mr McAlister emphasised that the lady was an ‘Australian’. Ms Radulovic said she replied ‘I am Australian too’ and she said she felt offended and hurt by the remark.
14. On another occasion, on 24 April 2008, a birthday celebration was held for Mr Selwyn Cornish. Ms Radulovic said Mr McAlister had asked her star sign. When she said ‘Leo’, he had said ‘I can’t work with a Leo’ and that he also said ‘I can’t work with an angry little Serbian woman’, referring to her ethnic background. She reported in her statement of facts, issues and contentions that Mr McAlister added that she could tell him she could not work with ‘an angry Aussie bastard’ too if she wanted. Ms Radulovic said she replied ‘No’ and left the room. Ms Radulovic also said that if Mr McAlister asked her to do things, they had to be done immediately. As a result, she said she tried to avoid him.
15. Ms Radulovic decided to apply for the ANU level 5 position because she believed in practice she was already undertaking duties at that level. However, she said she did not believe she would get the job. Ms Radulovic said Mr McAlister also told her that all the other applicants had a hospitality background. She said she replied: ‘I have a hospitality background too. I am a chef.’ She believed there were five or six other candidates.
16. On 11 April 2008, she arrived at Toad Hall to be interviewed for the level 5 position. The interview was scheduled for 9.00 am. She alleges when she arrived Mr McAlister came up to her car and said she was ‘too early’, which she said made her feel like a child who could not follow instructions. She said Mr McAlister gave her the interview questions in advance and that she sat in her car to read them while she waited. She said before the appointed time, Mr McAlister came over to her car and asked her to come in for the interview. She said Mr McAlister said to her: ‘Please keep your answers short’.
17. She said the interview commenced at 8.55 am and was over by 9.06 am. She said she was aware of the time because she had phoned her husband at the conclusion of the interview to tell him how it had gone, and he was surprised at how soon it ended. She said Mr McAlister had led her to understand that the interview would be between 20 and 45 minutes.
18. Ms Radulovic found the interview unsatisfactory because she said the panel quickly skipped to the next question if she paused slightly and did not seek clarification of her answers. In particular, no-one asked her about her existing experience and role at Toad Hall. She said the panel also abruptly interrupted or stopped her part of the way through her answers. She remembers that the last question was from Mr McAlister, who asked if her references were up to date. She said this surprised her, since she believed that Mr McAlister would have known her references were current if he had read her application thoroughly.
19. Ms Radulovic said she believed the panel only asked her four of the eight questions she had been given in advance of the interview. Ms Radulovic also said that when she was answering questions put to her by the representatives from Human Relations (HR) and Finance Divisions, Mr McAlister would interrupt her with comments and make jokes. Members on the panel would laugh and make her feel extremely uncomfortable, stressed and confused. She said overall she did not feel she was given a proper opportunity to present herself and the panel appeared to be just ‘going through the motions’.
20. The interview was on a Friday, and she had been told that the result would be known some time later the following week. However, Mr McAlister called her into his office the following Monday and told she had been unsuccessful and that another candidate, whom she later learned was Ms Kelly Stephens from Fenner Hall, another residential hall at ANU, was successful. Ms Radulovic said this seemed to her to indicate that the panel had made up their mind before the selection process. According to Ms Radulovic, Mr McAlister told her Ms Stephens had more experience and was ‘Australian’.
21. From that time, she said, things went downhill. She did not want to go to work, she was having nightmares, her sleep patterns were poor, she had headaches, she was scared to go to work, and was angry and upset. On 28 April 2008, she went to see her treating general practitioner, Dr Philip Toua, and said he recommended that she considered seeing a psychologist.
22. On 21 April 2008, she sent a formal grievance to the Director of Human Resources, concerning the conduct of the selection process. The complaint noted that under the former management structure at Toad Hall, she had been both ‘working at my level as well as doing unpaid higher duties at the Grade 5 level’. As a consequence, she said she believed she met the selection criteria for the ANU level 5 position.
23. Ms Radulovic said she was surprised when, prior to the interview, Ms Marie Wensing, Director, University Accommodation, ANU, warned her it would be unlikely that she would be successful in obtaining the position as she was a level 3 officer. According to Ms Radulovic, Ms Wensing ‘knew that I was and still am performing Grade 5 duties’ although she had ‘not officially recognised the higher duties… through an increase in my pay’.
24. Ms Radulovic also sought feedback about the promotions process after she had been told about the outcome. According to Mr McAlister’s response to Ms Radulovic’s incident report, dated 25 November 2008, Ms Radulovic was given ‘interview feed back by the Chair’ (Mr McAlister) ‘in the presence of Selwyn Cornish’ on 18 April 2008, and ‘general discussion took place re training and promotion options’. Mr McAlister’s report also noted: ‘Dana was not receptive to this feedback, since commenting to her supervisor that she “should have just been given the job”’. Mr McAlister also noted:
There is no doubt that in times of need, Dana has served well as a presence in Hall; however, the 2007 Audit evidenced some operational shortcomings – all things that are easily addressed with training and direction, if she could be open to that.
He went on:
Admittedly, Dana’s performance has not historically been managed [appropriately] using the ANU Career and Performance Review process. I believe this was raised with her last December and the process introduced to her. This process now needs to be advanced as a development mechanism, but current circumstances have not been favourable for this.
25. In other feedback, Ms Radulovic spoke with Mr Ben Funnell (executive officer of Accommodation Services at ANU) to discuss her application. She said he told her by telephone that she was not sufficiently confident to work in the ANU level 5 position and she was ‘wasting her time complaining about it’ given she was only carrying out ANU level 3 duties.
26. Ms Radulovic said she talked to Mr Cornish in May 2008 about her problems and told him Mr McAlister had been bullying her and was discriminatory in his treatment of her. Mr Cornish advised her she could put in a grievance complaint. On 23 May 2008, she emailed Mr Warwick Williams, Director of Facilities and Services at ANU, to lodge her complaint about the ‘Management of Toad Hall and Accommodation Services’. The complaint referred to actions by Mr McAlister, Ms Wensing and Mr Ben Funnell. Mr Williams replied on 30 May 2008, saying that since Ms Radulovic was about to go away and the complaints procedures involved a conciliation process, she should contact him on her return if she wanted to pursue the grievance. On 30 September 2008, having returned from her leave, Ms Radulovic emailed Mr Peter Davidson, Staff Representative at ANU, to lodge a formal grievance about the selection process and certain ANU managers.
27. In response to the complaint about the selection process, on 26 May 2008, Ms Erica Spencer (Manager, Appointments and Promotions Branch) advised Mr Paul Stewart, who was responsible for investigating Ms Radulovic’s complaints, that all four members of the selection panel confirmed that each interview was approximately 20 minutes in length, and each candidate was asked the same list of questions, given the opportunity to elaborate on their skills and experience, and at the end of the process allowed to ask the panel any questions. Ms Spencer advised that in the panel’s view, Ms Radulovic took advantage of that opportunity. Ms Spencer said she also believed that the selection process was based on merit. Accordingly, Ms Radulovic’s grievance on the basis of flawed process was denied.
28. In early June 2008, Ms Radulovic had taken extended recreation leave to go back to Serbia to see her parents, her first visit for 20 years. Her husband had long service leave and they were away for three months. Her father died in November 2008, and she was pleased she had seen him beforehand. Ms Radulovic said after her leave she was feeling better, and she returned to Toad Hall on 8 September 2008.
29. By the time Ms Radulovic returned, Ms Stephens had started in the ANU level 5 position. Ms Radulovic said Mr McAlister saw her briefly to tell her that having a new staff member meant changes for her role. She would only be on the front counter and would not be doing any back office work, for example, involving financial transactions. Ms Radulovic also discovered that a number of new forms and procedures had been introduced with which she was unfamiliar, but she gradually worked them out for herself. She claimed she was not given support to help her with the new processes.
30. On 17 September 2008, Ms Radulovic attended a meeting with Mr McAlister, Mr Bradley Beasley, Senior Employment Strategies Adviser, HR Division, Mr Peter Davidson, union representative, and Ms Marie Wensing to discuss Ms Radulovic’s working hours. She was asked if she could work at the front office from 11.30 am till 6.00 pm. Ms Radulovic had apparently acquiesced to revised hours prior to her departure overseas. However, at this meeting she said she could not work until 6.00 pm because her husband worked full-time and she had two young children to pick up from childcare. The child care centre was some distance from her work and closed at 5.45 pm.
31. At the meeting, Mr Beasley asked her why her eighteen year old son could not pick up her younger children from childcare. Ms Radulovic said she did not want to impose on him. Mr Bradley then asked where Ms Radulovic lived, and when she told him that it was in a suburb on the other side of Canberra he replied, ‘Where’s that? Woop Woop?’ to the general laughter of the others present but, Ms Radulovic said, to her discomfort. Ms Radulovic said she was advised at the meeting that she would either have to transfer to another part of the University or Toad Hall would need to hire a casual staff person for one hour from 5.00 pm to 6.00 pm, which was not likely to be easy.
32. A further meeting concerning Ms Radulovic’s hours was held on Friday, 26 September 2008, at which Ms Wensing, Mr Beasley, Ms Kathryn Leonard, Human Resources, Advisory Services at ANU, Mr McAlister, and Mr Davidson were present, as well as Ms Radulovic. At the meeting, Ms Wensing said the ANU had been unable to second Ms Radulovic, nor to find someone to fill in for the hour from 5.00 pm. The HR persons present and Mr McAlister then had a private meeting. On return to the meeting, Mr Beasley said, according to Ms Radulovic, that they had worked out a solution, which was that Ms Radulovic should ‘swap positions with our boss because we don’t like him.’ She said the others present laughed, again to Ms Radulovic’s discomfort. Mr Davidson said it was an inappropriate remark and told Ms Radulovic ‘don’t stress Dana’. Ms Radulovic said she left the room crying. However, the meeting agreed that Ms Radulovic would not need to work after 5.00 pm or at the latest 5.15 pm.
33. Ms Radulovic went to see Dr Toua, her general practitioner, the next Monday (29 September 2008). According to the Dr Toua’s clinical records, she complained about ‘work related issues – stressed with current manager’. He gave her a medical certificate to be off work for a week. On 9 October 2008 she again went to see Dr Toua. The clinical records show that ‘letter created’, and the Tribunal assumes he issued her another medical certificate. She had subsequent visits to Dr Toua on 13 October, 16 October, on 20 October and 28 October 2008, in which there are continual references to her concerns about work. At the 16 October visit, Dr Toua arranged for a GP Mental Health Care Assessment & Plan. Dr Toua gave her a series of medical certificates during four visits in November, and two in December 2008. She did not return to her workplace until 6 January 2009.
34. Ms Radulovic said in evidence that she felt she could not go back to work with Mr McAlister. She believed she was being picked on, that her employer was not protecting her, and that it was not safe for her. At that time, she was taking Voltaren, Panadeine, Panadol, and Nurofen. She said she was experiencing pressure on her neck as though someone was sitting on her shoulders. She also said she had constant headaches.
35. Ms Radulovic had an appointment with Dr Buchholz, a clinical psychologist, on 17 October 2008, at which she reportedly advised that her major problem was being ‘unable to stand the smell of petrol, cigarettes and alcohol’, but she said that it was not as bad as it used to be and said it was ‘probably just in my head’. The report did note her ‘other concern at the moment was with her workplace’. Dr Buchholz said she provided Ms Radulovic with information about anxiety and possible psychotherapeutic intervention.
36. Ms Radulovic wrote to her union representative, Mr Davidson, on 30 September 2008, claiming she had been treated unfairly by the selection panel, by certain ANU managers, and discriminated against by Mr McAlister after she submitted her formal grievance in relation to the process. She also complained that ANU management had failed to recognise her long-term effort at Toad Hall and did not offer her any further training and development opportunities. She noted that to her knowledge, no written or verbal complaint had been made against her. She also complained that the result of the process meant she was being told her ‘work has not been good enough for a Level 5 position’ despite never being ‘counselled about … performance and at no time… seen any written notes to that effect’.
37. Following advice from Mr Davidson and from Mr Cornish, she made a Comcare claim on 13 November 2008, for which she said she sought treatment on 28 April 2008. An incident notification was also lodged on Ms Radulovic’s behalf on 19 November 2008, reporting an incident said to have occurred on 1 April 2008, which caused her stress and depression as a result of not gaining a promotion to an ANU level 5 position. At the hearing, Ms Radulovic said she had not completed the report and it contained inaccuracies, for example, as to dates.
38. On 24 November 2008 Mr McAlister completed a supervisor statement in relation to the incident notification. He reported that Ms Radulovic had been provided with feedback from the chair of the panel, that Ms Radulovic was not receptive to the feedback, and that Ms Radulovic said she should ‘just have been given the job’. He also said the process in the selection was standard, as required by ANU policy. He said Ms Radulovic did not have comparable skills and experience to those of the successful applicant. He noted this was not unusual when someone was seeking promotion to an ANU level 5 from an ANU level 3 position.
39. In a further memorandum dated 11 December 2008, Ms Leonard reported that a formal investigation of the selection process had occurred. In relation to the complaint against Mr McAlister, she said that the relationship between Mr McAlister and Ms Radulovic had ‘irrevocably broken down’ and that ‘both could have behaved in a more appropriate manner’. However, since Ms McAlister had resigned from Toad Hall, effective 24 December 2008, the matter was closed and no further action would be taken. As to the final complaint that Ms Radulovic was not provided with adequate training and development opportunities, Ms Leonard stated that all ANU staff have access to online training and development that can be taken at any time, in addition to training provided by the staff development section for which permission has to be sought.
40. As Mr McAlister had resigned in December 2008, Ms Radulovic returned to work on 6 January 2009 for a meeting, and recommenced work on 7 January 2009. The clinical notes of Dr Toua note her as ‘being a bit apprehensive but looking forward to it’. On that day, she said she saw Ms Wensing who was welcoming. She was advised that with Mr McAlister’s departure, Ms Stephens was acting in his job. On 9 January 2009, at the end of the day, Ms Stephens said to Ms Radulovic that she wanted her to send Ms Stephens an email before she left work reporting on her day’s activities. Ms Radulovic said she was not going to subject herself to the stress of trying to do a daily report and leave on time, and instead she decided she would email a report from home to work during that evening and forward it to Ms Stephens next day.
41. The 9 January 2009 was a Friday and when she got home, Ms Radulovic found documents from Comcare containing a report from Ms Wensing and Mr Pearson, which she said upset her because they contained incorrect information about the cause of her father’s death and the nature of her mother’s illness. She went to her general medical practice on 10 January 2009 and told her doctor that she was again having problems at work and ‘would like to stop work until review with Dr Toua’ on 19 January 2009. The doctor she consulted complied but said ‘I have let her know that this is her choice’. However, from Monday 12 January 2009, Ms Radulovic no longer worked at the ANU and in July 2009 her employment was terminated.
42. On 19 January 2009, Dr Toua’s clinical notes state Ms Radulovic exhibited ‘worsening anxiety symptoms. Had started work and was going ok – describes worsening anxiety – palpitations, difficulty breaching, also tension headaches – tightness in neck and upper shoulders – all prob stress related. Suggest that her symptoms are related to anxiety. No medication today.’ However, at a visit to Dr Toua on 27 January 2009 he records ‘not much better, feeling anxious, taking regular Nurofen which helps – described panic attack 17 Jan’. At that meeting, he prescribed Efexor, an anti-depressant. From March 2009 Ms Radulovic said Dr Toua also recommended she see a psychologist because she was having panic attacks.
Medical evidence
43. In a medical report dated 12 February 2009, Dr Graham George, consultant psychiatrist, said Ms Radulovic ‘probably suffered an acute stress disorder as a result of’ a meeting on 26 September 2008, in which her work hours were to be changed without ‘due consideration to her circumstances’ but this ‘had a minor and transient effect on her condition’. His report concluded, probably the ‘sudden death of her father on 6 November 2008 would have caused her greater distress’ and in particular, was the cause of her panic attacks. As he said, ‘I believe this has been the major contributor to her Adjustment Disorder’, diagnosed on 9 January 2009. As a consequence, he said ‘I would not see her present absence from work as being substantially work-related’.
44. In a supplementary report dated 24 November 2009, without having re-examined Ms Radulovic, Dr George affirmed his earlier diagnoses from the two separate episodes and said her adjustment disorder did not lead to a ‘partial or total incapacity’ for work. He also said he could not give an opinion on her prognosis. In response to a question about the significance, if any, of the selection process in relation to Ms Radulovic’s initial stress symptoms in April 2008, Dr George said that ‘It did appear that Ms Radulovic believed she was being treated in a poor fashion by her manager at that time’. She also ‘demonstrated a certain degree of frustration with respect to the outcome, and other associated aspects of her employment’. He acknowledged that ‘Ms Radulovic attended her general practitioner in April 2008 in relation to issues which were troubling her in relation to her work’, but said that impairment from her ‘acute stress disorder’ did not occur until September 2008 and that her anxiety and depression did not impair her until 9 January 2009.
45. Dr Zoltan Zsadanyi, consultant psychiatrist, provided two reports. The first on 4 December 2009; the second on 22 January 2010. In his first report, Dr Zsadanyi diagnosed ‘Major Depressive Disorder, single episode, partial remission’ which in his view ‘was significantly contributed to by her employment’. Specifically, this related to the manner in which her manager, Mr McAllister, treated her. In particular, his report referred to Ms Radulovic alleging she was bullied and humiliated by him, called names, and on one occasion hit on her head with a rolled up newspaper. He did not consider her condition was contributed to by her failure to receive a promotion nor the death of her father. He said there was no residual disability and she would be able to work full-time, but in his 22 January 2010 report he said that this work should not be at Toad Hall. He acknowledged that she required ongoing anti-depressant medication.
46. At the hearing, Dr Toua said that at his appointment on 28 April 2008, Ms Radulovic had mentioned the rolled up newspaper incident, but not the matter of the loss of promotion, which only came up in the last quarter of 2008. He agreed that if Ms Radulovic had a sense of entitlement to a position and she was aggrieved about not getting a promotion, this was a possible source of stress. He also conceded that he had made no psychiatric diagnosis of Ms Radulovic’s condition in April 2008 nor in her September 2008 visits but said he presumed there were ongoing problems with her work. However, in his report to Comcare of 30 December 2008, he did diagnose reactive depression with anxiety and said she reported her symptoms were present from April 2008.
Other evidence
Ms Kathryn Leonard
47. Ms Kathryn Leonard, Human Resources Advisory Services, ANU, did not give oral evidence but provided an independent report on the matters complained of by Ms Radulovic and there are a series of emails from her admitted in evidence. In an email recommending Ms Radulovic’s leave from 26 September 2008 be treated as paid leave, Ms Leonard noted that there had been a number of problems in dealing with Ms Radulovic including:
·delay in not having workplace issues addressed …, inappropriate conduct of Bob McAlister’s … unwillingness to balance Dana’s work and family commitments and harassment/discrimination issues and issues regarding a recruitment and selection process;
·My experience of attending meetings with … Bob McAlister and informal discussions is that he dislikes Dana and is unwilling to take into consideration any issues raised by Dana especially Dana’s family commitments. He appears to me to be an aggressive man lacking in both empathy and managerial skills;
·Given the nature of the personalities involved the relationship between Bob McAlister and Dana has clearly broken down and [is] irreconcilable;
·As noted previously, there has (sic) been delays in informing Dana of how to lodge a workers comp. claim and in the forms being lodged. Further lack of clarity over who should take responsibility and how matters should be handled has contributed to concerns over whether the University is genuinely committed to providing Dana a safe workplace and in handling her grievance, harassment and workers comp. claims. …;
·The multiple issues, parties and personalities involved complicate this matter significantly. From my observations the matter has been treated as Dana’s problem and the actions to return Dana to a safe workplace has had only token/superficial commitment. The University has an obligation to provide a workplace free from harassment, discrimination and bullying. Given the events thus far it is difficult to demonstrate that this has been undertaken in handling this matter.
48. A memorandum from Ms Leonard of 11 December 2008, concerning Ms Radulovic’s grievance complaint of 30 September 2008 and issues raised by her at a meeting on 3 November 2008, said in relation to Mr McAlister that ‘There may be some concerns, but who is responsible for what, has not been clearly identified – with the possibility that both parties could have behaved more appropriately’. She found that individual complaints against Ms Stephens and Ms Wensing, and of ‘bullying and harassment’ by Mr Beasley, were not substantiated. With respect to Mr Beasley, the report noted that ‘Mr Beasley did make a joke(s), however, the nature of the joke(s) does not represent bullying and harassment and was not made with the intention to cause distress’.
49. In notifying Ms Radulovic about her report on 12 December 2008, under Performance and Training, there was a recommendation that Ms Radulovic prepare ‘a Statement of Expectation, with a strong focus on training and development … covering the next 6 to 12 months. This should contain training and development plans and clear performance standards’. The report also noted, in light of doubts about the extent of Ms Radulovic’s duties, that she should prepare a submission concerning the tasks she had been performing with a view to deciding whether her position was appropriately classified. Finally, Ms Leonard also noted that Ms Radulovic ‘has access to online training that can be taken at any time as well as training provided by the HRD Staff Development area’. The report notes: ‘Effectively there is unfettered access to these forms of training’.
Ms Wensing
50. Ms Marie Wensing, Director, University Accommodation, ANU, provided a written statement dated 26 October 2010 and appeared at the Tribunal. Ms Wensing said that after December 2007 when the manager left, she was more closely involved in Toad Hall until the following February 2008, when Mr McAlister arrived. Apart from period, she said she had little personal involvement with Toad Hall.
51. Ms Wensing denied that Ms Radulovic was performing ANU level 5 duties. Although she could not provide a duty statement for Ms Radulovic’s position as at April 2008, in her view the ANU level 5 position incorporated more financial management, especially online, than the ANU level 3 position. In her view, Ms Radulovic was not aware that people in ANU level 3 positions in other halls were doing the same kinds of routine financial management work as Ms Radulovic. She admitted in cross-examination that the ANU level 5 position was only created in 2007 following a restructure when the Toad Hall Manager position was changed to a part-time position and an extra position at the ANU level 5 level became a necessity.
52. Ms Wensing said that when she became aware that Ms Radulovic intended to apply for the ANU level 5, she explained the need for the recruitment process and about the HR resources available to assist her. She explained that the skills needed for the position were well documented on the web. She said she was surprised to discover at that point that Ms Radulovic had never had a performance review. In her only other conversation with Ms Radulovic prior to the interview, she warned that it was a big jump from and ANU level 3 position to an ANU level 5 position, but reminded her that HR could help her with the process. After the selection process, Ms Wensing reported that Ms Radulovic indicated that she believed she should have got the ANU level 5 position.
53. Ms Wensing noted that Mr McAlister had come from a private sector background, was inexperienced in working in a large organisation, and was cautious about taking action in his role as manager. He had consulted her about some concerns he had about performance management of Ms Radulovic. She advised him to follow ANU processes in managing the situation. Ms Wensing had also advised him in relation to the work hours issue, when Mr McAlister stated to Ms Radulovic that the needs of Toad Hall came first, that this was not the ANU’s principle which recognised family responsibilities, and this opinion was made clear to Ms Radulovic.
54. Ms Wensing denied that Mr McAlister was aggressive, at least with her. Rather, she said he put his point firmly and clearly, was ambitious for Toad Hall, and frustrated about lack of progress and cooperation. She could not say whether Mr McAlister was lacking in empathy and managerial skills but acknowledged that the relationship between Mr McAlister and Ms Radulovic was a difficult one, and said earlier managers had also had trouble managing Ms Radulovic.
Mr Bob McAlister
55. Mr McAlister resigned from Toad Hall in December 2008 and could not be contacted to give evidence. In evidence provided to the Tribunal, including email correspondence to Ms Radulovic, Mr McAlister listed performance management issues faced by those responsible for Ms Radulovic. For example, in an email of 23 May 2008, he said:
[M]any others who have worked with you have experienced similar difficulties and concerns to those I currently face in wanting improvements, attention to detail, policies and procedures followed etc. In my opinion every one that wants you to be accountable you find overbearing. … I have treated you fairly and with respect [and] given you the ‘benefit of the doubt’ on several occasions. On your return from your holiday we will engage in an appraisal process and look at performance management processes to see if we can get a workable solution to current circumstances.
56. In an email to Ms Radulovic dated 22 May 2008, Mr McAlister upbraided Ms Radulovic for accepting cash from a resident, contrary to Toad Hall policy and concluded, ‘Any future breaches made by you in relation to standard operating procedures will generate the appropriate disciplinary proceedings’. Ms Radulovic had responded on 22 May 2008 noting:
I may have taken in the cash (using my card) in the past however this was formally approved by my previous Manager. Before jumping to conclusions as you have done in this case and previously on many occasions, as well as criticising the way in which I work, I would prefer it if you talk to me first and ask what has happened and hear my side of the story – this is what natural justice requires. You have hurt me on previous occasions when you have done this and your threat of taking disciplinary proceedings in my opinion is excessive.
57. In his response to a letter on 20 November 2008 from Ms Leonard setting out the substance of the formal grievance against him by Ms Radulovic, Mr McAlister noted that Ms Radulovic ‘appears not to want to recognise that in certain role tasks she really is not competent and for years due to poor management intervention she has been allowed to believe that she “was” competent’. He also disputed Ms Radulovic’s claim that ‘her work performance … has not been the subject of any written nor verbal complaint’, referring to the many occasions on which he had provided ‘written, verbal and email requests to [her] for task and attitude improvement’.
58. In relation to her complaint about the process around changing her work hours, Mr McAlister also noted that, prior to Ms Radulovic going on extended leave, he understood that she had agreed to the extended hours proposed on her return. However, in September 2008, he said Ms Radulovic’s attitude had changed and she said she was not available to work after 5.00 pm.
59. He denied that he had ever said she was a ‘little angry Serbian woman’ claiming he thought she was Croatian, not Serbian, and that he did not see her as ‘little’, nor did he phrase his speech in that manner. He also denied that he had ever ‘yelled at her in front of students’ but he admitted to having a ‘big voice’.
60. The ‘rolled up newspaper’ episode he said was a contested point, and he suggested Ms Radulovic should provide evidence of times and dates of the event. However, he did not categorically deny it had happened and said he recalled an occasion when he had a ‘survey form folded in half and “tapped” her on the shoulder amid her laughter’ in what he described was a ‘rare’ spot of relaxed humour between the two of them. He also doubted that any of his interactions with Ms Radulovic would have humiliated her or been discriminatory, including those in relation to the selection process, and he noted that such accusations are ‘words of convenience’ and are hard to contest.
61. As for the email comment about ‘disciplinary proceedings’, he simply said he believed it was ‘very hard’ to lose a job at the ANU. He did note that Ms Radulovic’s written application for the ANU level 5 position was ‘very good’, but said that her interview was not of the same standard. His recollection from the file notes was that Ms Radulovic was given ‘more time and grace’ than some of the other candidates.
62. He said he suspected that over the years Ms Radulovic had turned down training opportunities but accepted that historically she may have been prevented from access to training and development opportunities that could have provided her an equal chance for future career progression. He agreed that her career development had not been taken seriously and that management had failed to recognise her efforts over the previous six years. As he said ‘past management may have “failed” to manage Dana, recognise her efforts or train her to be competent in all the ANU 3’s role dimensions’.
Consideration
Did Ms Radulovic suffer from an ‘injury’, namely a ‘disease’?
63. The reviewable decision dated 28 July 2009 found that Ms Radulovic suffered from an adjustment reaction with mixed emotional features. That diagnosis was supported by the evidence of Dr George and Dr Toua. Although Dr Zsadanyi had diagnosed major depressive disorder, single feature, since nothing turns on the specific diagnosis, and the majority of the medical evidence supports the diagnosis of adjustment disorder, the Tribunal finds that Ms Radulovic suffers from an adjustment reaction with mixed emotional features
Was Ms Radulovic’s condition contributed to, to a significant degree, by her employment?
64. Comcare accepted in its reviewable decision that Ms Radulovic’s employment contributed to the development of her condition to a significant degree. That finding was based on the evidence provided by Dr Toua, Dr Buchholz, Ms Radulovic, and her managers and senior supervisors. Although Dr George considered that the major contribution to Ms Radulovic’s condition was the death of her father in November 2008 that is not the predominant view. On balance, since the evidence relied on by Comcare was not disputed at the Tribunal and is consistent with the evidence before it, the Tribunal finds that Ms Radulovic’s condition was contributed to, to a significant degree, by her employment.
Date of injury
65. Comcare’s initial decision, dated 16 April 2009, deemed the date of injury to be 28 April 2008 being the date Ms Radulovic first sought medical treatment for her stress. That view was upheld by Comcare in its reviewable decision. However, in its submissions and in evidence to the Tribunal, Comcare contended that the precipitating event was the meeting about Ms Radulovic’s work hours on 26 September 2008 after which she left work and did not return until 6 January 2009. That position is supported by Dr George’s report of 12 December 2009, when he said:
… she probably left work [on 26 September 2008] in relationship to being put in a position where her hours of work were going to be changed without due consideration to her circumstances. She appears to have walked out of the meeting whereby she felt devalued. She does appear to have probably suffered an acute stress disorder as a result of that and was distressed subsequently.
66. The deemed date of injury is the date the person first sought medical treatment for the disease claimed, or the disease first incapacitated the person for work.[1] To be a ‘disease’, in this case a psychiatric condition, for the purposes of the Act, the condition must be ‘outside the boundaries of normal mental functioning and behaviour’.[2]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), s 7(4).
[2] Comcare v Mooi (1996) 69 FCR 439, 444.
67. In April 2008, Dr Toua did not diagnose any psychiatric condition, nor did he consider her condition was of sufficient moment to warrant anti-depressant medication. It was not until January 2009 that he first prescribed Efexor and then only a low dosage, and his medical certificate for 28 April 2008 was for one day only. Between June 2008 and early September 2008, there are no records of Ms Radulovic attending the practice until her return from her extended leave. Dr George did not see Ms Radulovic until 12 February 2009; Dr Zsadanyi did not diagnose her psychiatric condition until 4 December 2009.
68. Comcare’s view was that Ms Radulovic’s condition was a reaction to the cumulative impact of events in 2008. That was also the view of Dr Zsadanyi, who suggested that Ms Radulovic ‘progressively experienced increasing levels of anxiety in relation to her work during the course of 2008’. Dr Toua too said that ‘over time prior to [December 2008] she was suffering those symptoms’. It was not until 16 October 2008 that Dr Toua formulated a GP Mental Health Care Assessment & Plan and referred Ms Radulovic to a psychologist. Ms Radulovic saw the psychologist on 17 October 2008. Ms Radulovic also had an atypical number of medical appointments following the events of 26 September 2008, with one in September 2008, five in October 2008, four in November 2008, and two in December 2008, as compared with five only in the first six months of 2008.
69. So although Ms Radulovic nominated ‘April 2008’ as the date of injury in her workers’ compensation claim, and that view was supported by Dr Toua in his December 2008 report to Comcare, the Tribunal has found that this is not the date of injury. The preferable date is 26 September 2008, the date Ms Radulovic experienced an acute stress reaction to a workplace meeting, a condition capable of being characterised as a ‘disease’, and accordingly was unable to return to work for the next three months.
Was the injury excluded from being compensable because the injury was the result of ‘reasonable administrative action taken in a reasonable manner’?
70. What is ‘reasonable administrative action’ is defined in section 5A(2) to include:
(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.[3]
[3] Act, s 5A(2).
71. The Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, which introduced the revised exclusionary provisions in the current version of the Act, noted that a non-exhaustive list would both ‘lack the clarity of an exhaustive list’ and ‘could lead to some greater administrative complexity’[4] but would ‘provide a more comprehensive regime of exclusionary provisions’.[5] The ‘greater administrative complexity’ is illustrated by this case.
[4] Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, x (Explanatory Memorandum).
[5] Id, xi.
72. The Explanatory Memorandum also noted of the revised provision ‘that the exclusions will extend to all reasonable management activities’.[6] That statement can be relied on as determinative of the meaning of section 5A(2) only to the extent permitted by section 15AB(1)(b) of the Acts Interpretation Act 1901 (Cth), namely, where the provision is ambiguous or obscure,[7] or the ordinary meaning in context and taking account ‘its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or unreasonable’.[8] As the following discussion indicates, the terms of section 5A(2), although broad, are not ‘ambiguous or obscure’; nor does the interpretation of the items in the provisions, using ordinary canons of construction, lead to a result which is ‘absurd or unreasonable’.
[6] Id, 4.
[7] Acts Interpretation Act 1901 (Cth), s 15AB(1)(b)(i).
[8] Acts Interpretation Act 1901 (Cth), s 15AB(1)(b)(ii).
73. Accordingly the Tribunal considers that section 5A(2) does not extend to all forms of management action which may cause injury. To so interpret the provision could unduly stultify the underlying purpose or object of the Act, namely, to provide a ‘scheme of rehabilitation and compensation for employees who are injured in the course of employment’[9] unless there has been intentional self-infliction of an injury, or serious or wilful misconduct.[10] The Tribunal considers the preferable interpretation, as a matter of statutory construction, is to limit the provision to the examples listed,[11] to ‘anything reasonable done in connection with’ those examples,[12] and to other administrative action which falls within categories comparable to those listed.
[9] Explanatory Memorandum, iii.
[10] Act, s 14.
[11] Act, subs 5A(2)(a)-(d), (f).
[12] Act, s 5A(2)(e).
74. That conclusion is reinforced by the history of the provision and by interpretation of other similar legislation. Prior to the amendment of the exclusionary provisions in 2007, the exclusionary provisions referred only to disciplinary action, failure to obtain promotion or loss of a benefit.[13] Although the current provision has clearly expanded that list,[14] in particular, to make it clear that the provision was not limited to ‘disciplinary action’ as narrowly defined in the cases,[15] the matters covered by section 5A(2) retain as a central theme that the administrative actions involve any assessment of performance or corrective action of an employee by a manager, as well as the failure to obtain a promotion, reclassification, transfer or benefit. The exclusionary provisions are not intended to be at large. In support of this conclusion, the expression ‘administrative action’ in the comparable Workers Rehabilitation and Compensation Act 1986 (SA) section 30A(a)(iii), for example, did not extend to the management style of a manager.[16]
[13] Act, s 4(1) – definition of ‘injury’ (as in force in 2004).
[14] The copious case law on the previous provision in s 4(1) is outlined in Ballard and Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (Cth) (8th ed, 2007), para 4.19.
[15] The problems with some of the cases on ‘disciplinary action’ are referred to in the Explanatory Memorandum, iv-v.
[16] Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42, 50 (Lander J).
75. The relevant administrative categories of administrative action for the purposes of Ms Radulovic’s claim are ‘appraisal of the employee’s performance’, ‘counselling’, ‘disciplinary action’, and ‘failure to obtain a promotion or benefit’. What constitutes ‘counselling’ is considered in the material following.
Counselling
76. What amounts to ‘counselling (informal or formal)’ is not defined. The activity is frequently spelled out in workplace agreements. It is clear that ‘counselling’ in the therapeutic sense is not the intended meaning. In Domburg v Nurses Board of Victoria[17] Ashley J said that ‘counselling’ in an employment relations context ‘has an industrial relations flavour’[18] and involves ‘something less than a caution or reprimand’.[19] It is the ‘least severe – or most benign’ of the corrective administrative actions which can be made by an employer or provisional association.[20] In the Tribunal’s view, it is used in this sense in section 5A(2).
[17] Domburg v Nurses Board of Victoria [2000] VSC 369.
[18] Id, para 63.
[19] Id, para 62.
[20] Ibid.
77. In the absence of evidence of such an agreement in this matter, the Tribunal has also considered the ordinary meaning of ‘counselling’. The Macquarie Dictionary defines ‘counselling’ as relevant as: ‘8) to give counsel to; advise; 9) to urge the doing or adoption of; recommend (a plan, etc). 10) to give counsel or advice’.[21] The Public Service and Merit Protection Commission and Comcare, in a joint publication, refer to ‘performance counselling’ as a ‘“formal” process in relation to assessment and monitoring of an individual’s work performance’, while ‘effective feedback’ is referred to as a form of ‘informal counselling’.[22] Consistent with the distinction made in Domburg, the publication notes that ‘Counselling’ is used in the sense of ‘assisting people to achieve and maintain a satisfactory standard of work performance and should not be confused with the type of counselling provided by professionally qualified counsellors’. The ordinary meaning reinforces the Tribunal’s view.
Reasonable
[21] The Macquarie Dictionary (revised 3rd ed, 2001) 439.
[22] Public Service Commission, Counselling for Better Work Performance (2000). accessed on 29 September 2010. The Tribunal notes that the website states: ‘This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts’. The Tribunal considers that this warning has been made because the law has changed in significant respects from that referred to in the publication, but that the references to the practices of formal and informal counselling remain current.
78. An issue is whether the examples of administrative action are 'reasonable' for the purposes of section 5A(2). Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful.[23] What is reasonable is also assessed objectively and relates to the specific conduct involved.[24] Dr Campbell explored the concept of reasonableness in Re Georges and Telstra Corporation Ltd where he said:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound (sic) of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair.[25]
[23] Comcare v Chenhall (1992) 37 FCR 75.
[24] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[25] Id, para 22 (Dr Campbell).
79. In addition, for ‘administrative action’ to be reasonable, it must be established that there was nothing ‘untoward’ about the actions involved.[26] The actions must also not be ‘irrational, absurd or ridiculous’.[27]
Reasonable manner
[26] Re Gilbert and Comcare [2009] AATA 224, para 33 (DP Hack).
[27] Repatriation Commission v Webb (1987) 13 ALD 421, 421 (Beaumont J).
80. In Re Georges and Telstra Corporation Ltd, Dr Campbell addressed the issue of what it means to take action ‘in a reasonable manner’. As he put it:
[T]he fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry should be considered.
...[W]hile the assessment of “in a reasonable manner” relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instruction that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action ... taken.[28]
[28] Re Georges and Telstra Corporation Ltd [2009] 731, para 33.
81. In Re Reubinson and Comcare[29], Senior Member Cunningham cited Keen v Workers Rehabilitation and Compensation Corporation[30] in which the Court noted that the question whether administrative action is taken in a reasonable manner is simply a matter of fact:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer.[31]
[29] Re Reubinson and Comcare [2010] AATA 676
[30] Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.
[31] Id, 44-5.
82. Applying those principles to this case involves identifying what are the administrative actions on which Comcare relies. Comcare contended that the workplace incidents that contributed to Ms Radulovic’s condition were:
(1)Ms Radulovic’s interactions with her manager, Mr Bob McAlister;
(2)The application, interview and feedback process for the ANU level 5 position at Toad Hall culminating in Ms Radulovic’s failure to obtain a promotion;
(3)The actions taken to extend Ms Radulovic’s work hours; and
(4)The failure to ‘performance manage’ Ms Radulovic, including providing her with development opportunities and training.
83. Each will be considered in turn to assess first whether the actions involved can be covered by the exclusionary provisions, and then to decide whether the actions were reasonable and taken in a reasonable manner.
(1) Ms Radulovic’s interactions with Mr McAlister
84. The interactions which Ms Radulovic considered contributed to her stress can be identified as:
·the incident where Mr McAllister allegedly rolled up newspaper and hit Ms Radulovic with it;
·the remarks about Ms Radulovic being ‘an angry little Serbian woman’ and that he could not work with a ‘Leo’;
·Mr McAlister appearing angry and gruff with Ms Radulovic and Mr Radulovic’s perception that he imposed pressures on her;
·Mr McAlister’s intimation in advance of the interviews for the ANU level 5 position that the position would go to a woman from Fenner Hall who was an ‘Australian’;
·Mr McAlister’s allegedly discriminating against her in retaliation for her complaint about the selection process; and
·the threat in Mr McAlister’s email of 22 May 2008 to take disciplinary action against her if Ms Radulovic made ‘further breaches’.
85. The allegations listed are taken from various grievance and other documents in evidence before the Tribunal. Since Mr McAlister was not available to attend the hearing, the only evidence to counter the allegations was his email to Ms Leonard dated 25 November 2008. The document is not written in the form of a formal submission, nor has it been tested in evidence, which diminishes its probative value. Mr McAlister denied that some of the incidents occurred or questioned their accuracy. However, since the allegations are taken from contemporaneous documents, the Tribunal is prepared to accept that incidents of the kind listed in items 1-4 and 6 occurred. The lack of detail as to how Mr McAlister discriminated against Ms Radulovic mean the Tribunal has not considered item 5.
86. The allegations in items 1, 2 and 4, may have distressed Ms Radulovic but they are not ‘appraisal of [Ms Radulovic’s] performance’, ‘corrective action’ or ‘failure to obtain a promotion, reclassification, transfer or benefit’, or ‘matters reasonably connected with’ or comparable to such actions. Item 3 is a matter of management style.[32] There is insufficient information for the Tribunal to be satisfied that Ms Radulovic’s assertions in item 5 occurred. On that basis, none of items 1 to 5 are administrative actions which are covered by section 5A(2).
[32] Id.
87. Item 6 arose in the context of a series of emails from Mr McAlister to Ms Radulovic in April and May 2008, in which he reminded her about tasks she was not performing, or rules she was breaching. Generally, the reminders can be categorised as advice, or correction. Assuming the incidents referred to occurred, they exhibit an understandable level of frustration on the part of Mr McAlister to apparent continued work performance failures by Ms Radulovic. Accordingly, the Tribunal finds that these emails were, with one exception, reasonable administrative action.
88. The exception relates to the threat of disciplinary proceedings in the email of 22 May 2008. As the joint PSMPC and Comcare publication states: ‘Good practice suggests that, before any written warning is issued to a person about underperformance, counselling should take place’.[33] The extract is referring to a formal counselling session. The emails can be classified as feedback or informal, not formal counselling. On that basis, the ‘good practice’ indicates that before a written warning – in this case the threat of disciplinary proceedings – took place, there should have been a formal counselling session. There was no indication in the evidence that this occurred. Although Mr McAlister said in exculpation of his remark about disciplinary proceedings that in his experience it was ‘very hard’ to lose a job at the ANU, Ms Radulovic is not likely to share that understanding. In those circumstances, the emailed threat was understandably distressing to her, and in the absence of an informal counselling session in person warning about the possibility of disciplinary action, was neither reasonable administrative action, nor was it taken in a reasonable manner.
(2) The application, interview and feedback process for the ANU level 5 position at Toad Hall culminating in Ms Radulovic’s failure to obtain a promotion
[33] See the explanatory comment about the currency of this publication in footnote 22.
89. Individual elements of that process that are considered because each is an administrative action are:
(a)Actions by Mr McAlister and Ms Wensing prior to and relating to the interview;
(b)The interview;
(c)Actions taken after the interview including feedback sessions.
90. Failure to gain a promotion is defined as an administrative action[34] and the prior action and actions taken after the interview are actions ‘in connection with’ the promotion application.[35] The Tribunal notes that the expression ‘in connection with’ are words of wide import.[36]
(a) Pre-interview administrative actions relating to the promotion
[34] Act, s 5A(2)(f).
[35] Act, s 5A(2)(f).
[36] Australian Competition and Consumer Commission v Woolworths (SA) Pty Ltd (2003) 198 ALR 417 at [58]; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577.
91. Prior to the interview, Mr McAlister notified Ms Radulovic that the position was to be advertised. In doing so, according to Ms Radulovic, he had told her that the person likely to be appointed was from Fenner Hall and was an ‘Australian’. Mr McAlister is also said to have told Ms Radulovic that she would be unlikely to be successful. Ms Wensing also told Ms Radulovic that promotion from an ANU level 3 to an ANU level 5 position was ‘a big jump’ but that if she went ahead she could call on HR resources to assist with the application. Ms Radulovic said she was surprised, given that in her view Ms Wensing knew that she was already performing ANU level 5 duties at Toad Hall.
92. With one exception, neither of these interchanges was unreasonable. A promotion to a position two levels higher is inherently less likely so a warning to that effect is reasonable. Although Ms Radulovic considered Ms Wensing knew she was performing at the higher level, this may not have been the case. Ms Wensing had little contact with Toad Hall except between December 2007 to February 2008, which includes the summer holiday period, when interactions with Ms Radulovic were less likely to occur. The Tribunal infers, accordingly, that Mr Wensing had little understanding of Ms Radulovic’s actual duties.
93. Mr McAlister’s comment that the likely successful candidate was an ‘Australian’, impliedly referring disparagingly to Ms Radulovic’s ethnic origin, was inappropriate and if true would not be ‘reasonable’. However, in the absence of corroborating evidence that the gratuitous remark was made, the Tribunal gives little weight to the comment.
(b) Interview
94. Ms Radulovic complained that she had expected the interview to be between 20 and 45 minutes, when in fact it was only about 10 minutes. This complaint is of more concern. Although the report on 26 May 2008 on the selection process found that the interview time for all candidates was about the same, namely, 20 minutes, the Tribunal accepts that Ms Radulovic’s recollection is closer to the reality. Ms Radulovic said she telephoned her husband to tell him about the interview at 9.06 am and she recalled seeing that time on her mobile phone and that her husband was surprised at the short time the interview took.
95. Assuming that the time was shorter than 20 minutes, the issue is whether the shorter time was due to the way the process was handled by the panel or for other reasons. Ms Radulovic’s arguments were that not only did Mr McAlister warn her to keep her answers short, and this inhibited her answers, but the panel moved on to ask another question if she paused, did not ask her about her experience, Mr McAlister at times interrupted her and made jokes while she was speaking, and the panel appeared to be ‘going through the motions’ which had made her uncomfortable, stressed and confused. The report of the inquiry into the process noted that Ms Radulovic was given the opportunity to elaborate on her skills and experience and to ask questions of the panel, and Ms Radulovic took advantage of these opportunities.
96. The Tribunal notes that a suggestion to keep answers brief is often a sensible one and was not unreasonable. If Ms Radulovic was interrupted while answering questions, or members of the panel made jokes during the interview at the expense of the candidate, that would not have been a reasonable manner of conducting an interview process. The absence of any corroborating evidence means that the Tribunal can not be satisfied these incidents occurred. In addition, Ms Radulovic’s expectation that she would be asked about her previous experience and role at Toad Hall, or actively encouraged to expand on her experience, was unrealistic. It is expected that an interviewee will inform a panel of relevant matters or ask questions. The Tribunal does not find that the interview was conducted unreasonably.
(c) Feedback sessions
97. The initial feedback was from Mr McAlister who, on the Monday following the interview, told Ms Radulovic that she had been unsuccessful and the position had been given to another candidate. On 18 April 2008, Ms Radulovic was provided with more formal feedback by Mr McAlister with Mr Cornish present. Finally, Ms Radulovic sought feedback from HR and had a telephone conversation with Mr Funnell, who allegedly said she was not sufficiently confident to work at the ANU level 5 level, which was not surprising given she had hitherto only been an ANU level 3.
98. Ms Radulovic inferred from the Monday session that the panel had already made up its mind prior to the interviews and that the process had been a sham. There is no other evidence in support of this supposition and the Tribunal is satisfied that the process was not a sham and was not unreasonable, given the number of candidates interviewed, and the report of the inquiry which found that ANU selections procedures had been followed. Indeed, early notification may enable an unsuccessful candidate to adjust to the disappointment more quickly. No complaint was made about the session at which Mr Cornish was present. Although the report of the conversation with Mr Funnell indicated it could have been handled more sensitively and preferably not by telephone, the tenor of the conversation was not so untoward as to be unreasonable. In summary, the Tribunal finds that the administrative actions taken after the selection process were not unreasonable, nor conducted in an unreasonable manner.
(3) Actions taken to extend Ms Radulovic’s work hours
99. The two meetings about work hours involved administrative actions, namely, a ‘benefit’, being the work hours of the employee.[37] At the first meeting in September to discuss an extension to her work hours, Mr Beasley’s question about why Ms Radulovic’s eighteen year old son could not pick up the two younger children from child care, depending on how it was phrased, may have been personally intrusive but was not so untoward as to be unreasonable. Ms Radulovic appears to have been particularly sensitive about the attempted joke about whether the suburb in which she lived was in ‘Woop Woop’. On the evidence presented, the Tribunal does not find these incidents to have been unreasonable or to have been taken in an unreasonable manner.
[37] Re Lopez and Australian Postal Corporation [2009] AATA 616, 5-6.
100. The suggestion that Ms Radulovic might need to transfer to another ANU position which could accommodate her leaving work by 5.00 pm, given the family friendly policy of the ANU, would be unreasonable. The suggestion falls within the ‘transfer’ provision in section 5A(2)(f). However, the paucity of evidence about the meeting and the possibility that this suggestion, along with the suggestion for a casual staffer to take on the front desk duties for an hour from 5.00 pm, were only options being discussed means the Tribunal is not satisfied that these suggestions amounted to administrative action which was unreasonable. This finding is reinforced by the evidence from those involved that prior to her long leave Ms Radulovic had agreed to the extended hours.
101. The second, more formal, meeting on 26 September 2008, led to Ms Radulovic suffering an acute stress reaction and precipitated her not working for the next three months. The objectionable aspect of that meeting was the attempted joke that Ms Radulovic should swap positions with Mr Beasley’s boss, whom allegedly no-one in HR liked. Whether there was an implication from the suggestion that Ms Radulovic, like the boss, was equally disliked, or whether Ms Radulovic was simply confused by the others’ laughter, Mr Davidson’s reproof at the meeting that the remark could ‘stress Dana’ was indicative of the comment being inappropriate. In any event, despite the concession at the meeting that Ms Radulovic’s hours would not be extended beyond 5.00 pm or 5.15 pm at the latest, she was so upset by the meeting that she left in tears and was found later to have an adjustment reaction with mixed emotional features. Given Ms Radulovic’s known sensitivity, her unhappiness in the workplace from not achieving a promotion, and her complaints about management at Toad Hall and elsewhere, and in light of the way in which the incident impacted on her, the remark was not reasonable administrative action, nor was it made in a reasonable manner.
(4) Failure to performance manage Ms Radulovic
102. As a matter of logic ‘administrative action’ can include administrative inaction provided the inaction is ‘in respect of the employee’s employment’[38] and the inaction has contributed, to a significant degree, to the disease the subject of the complaint. That finding is reinforced by the specific inclusion in the exclusionary provision of disappointment from other inactions, namely, to provide to the employee a promotion, reclassification, transfer or benefit, or to retain a benefit.[39] The disappointments or inactions Ms Radulovic complained about were the absence of training and career development opportunities; the failure to implement performance management processes; and the failure to recognise her performance at Toad Hall, particularly during periods of understaffing. Each of these matters are ‘administrative actions’ because they can be categorised either as elements of ‘appraisal action’ or ‘failure to obtain a reclassification or benefit’.
[38] Act, s 5A(1).
[39] Act, s 5A(2)(f).
103. Mr McAlister conceded all these failures in his email to Ms Leonard and admitted that they may have denied Ms Radulovic an equal chance for career progression. Ms Wensing’s evidence confirmed that Ms Radulovic had never had a performance review. That is reinforced by the letter from Ms Leonard of 12 December 2008, in which she suggested Ms Radulovic should prepare a statement of expectation about her training and development aspirations over the next 12 months as a first step in implementation of such a process. These inactions were not reasonable administrative behaviour.
104. The letter also noted, in light of doubts about the extent of Ms Radulovic’s duties, that she be permitted to prepare a submission concerning the tasks she had been performing with a view to deciding whether the position she occupied was appropriately classified. The Tribunal notes that the increasingly part-time role of the manager, and the appointment of an additional position at the ANU level 5 level, when previously the only positions had been an ANU level 3 position and a full-time manager, suggests that the ANU level 3 role probably involved more duties than normal at that level, and that management failed unreasonably to acknowledge that the position Ms Radulovic was filling involved responsibilities not generally required by those at ANU level 3.
105. Although both Mr McAlister and Ms Wensing indicated that Ms Radulovic may have turned down training opportunities in the past and on the evidence she did not appear to have taken the opportunity to avail herself of Ms Wensing’s suggested HR assistance in relation to the promotion process, in the absence of probative evidence on this issue, the Tribunal gives the suppositions no weight. The Tribunal does accept that ANU employees do have access to online training at any time. However, if Ms Radulovic was unaware of her training needs, due to the lack of performance management, it is not surprising that she had not taken advantage of these opportunities. Career development could have rectified that problem.
106. In summary, the absence of action on the part of management to provide training and career development opportunities for Ms Radulovic, to undertake her performance management processes, and to recognise her contribution to Toad Hall, was unreasonable and understandably aggrieved Ms Radulovic and contributed to her stress.
Conclusion
107. The Tribunal has made findings that Mr McAlister’s threat of disciplinary action, the remark by Mr Beasley at the 26 September 2008 meeting, and the failure to performance manage Ms Radulovic were either unreasonable administrative actions or were taken in an unreasonable manner. Nonetheless, the Tribunal is not satisfied that any one of those administrative actions was sufficiently significant on its own to have caused Ms Radulovic’s condition.[40] Rather, the position was that it was the accumulation of workplace incidents involving management and Ms Radulovic that contributed to her condition.
[40] Hart v Comcare [2005] FCAFC 16.
108. Accordingly, it is incumbent on the Tribunal to take a view based on the cumulative effect of the administrative actions from April 2008 about which the complaint was made. Looked at overall, the Tribunal is satisfied that, on balance, the injury was suffered ‘as a result of’ management actions in that period that were reasonable and were taken in a reasonable manner.[41] It was the management actions which were reasonable and taken in a reasonable manner that were significantly causal in Ms Radulovic’s condition.[42] As a consequence, the actions overall operate to exclude Ms Radulovic’s claimed condition from being an ‘injury’ and hence compensable. The decision under review is affirmed.
[41] Section 5A(2).
[42] Hart v Comcare (2005) 87 ALD 341 at 345. The test of ‘significantly causal’ is adopted for the same reasons as those expressed in relation to the earlier ‘material contribution’ test discussed by DP Jarvis in Re Carpenter and Comcare [2010] AATA 62.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: ..................................................................
AssociateDate/s of Hearing 23 - 24 August 2010
Date of Decision 12 October 2010
Counsel for the Applicant Ray Livingstone
Solicitor for the Applicant Maurice Blackburn
Counsel for the Respondent Jane Godtschalke
Solicitor for the Respondent Dibbs Barker
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