Re Reubinson and Comcare
[2010] AATA 676
•7 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 676
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2774
GENERAL ADMINISTRATIVE DIVISION ) Re PATRICK REUBINSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date7 September 2010
PlaceCanberra
Decision The orders of the Tribunal are as follows:
1. THAT the decision under review is set aside and substituted with a decision that the respondent is liable to pay compensation for the diagnosed adjustment disorder with depressed mood (or other ICD definition as is administratively preferred by Comcare) from 31 March 2008.
2. THAT the matter be remitted to the respondent for reconsideration in accordance with this decision.
3. THAT there be liberty to apply within 14 days in relation to the costs of the proceedings.
4. THAT in the absence of any such application the respondent is to pay the applicant's costs of and incidental to this appeal.
[Sgd Ms A F Cunningham]
Senior Member
CATCHWORDS
COMPENSATION - diagnosed condition of chronic adjustment disorder with depressed mood - contributed to in a significant degree by employment - whether "reasonable administrative action taken in a reasonable manner" - decision under review set aside
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14
Public Sector Management Act 1994
Canberra Institute of Technology Union Collective Agreement for Teaching Staff 2006-2009
Comcare v Mooi (1996) 69 FCR 439
Van Oostveen v Comcare [1998] FCA 1124
Re Lynch and Comcare [2010] AATA 38, 114 ALD 394
Hart v Comcare [2005] FCAFC 16, 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Weigand v Comcare [2002] FCA 1464
Wilson and Comcare [2010] AATA 396
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Clarke v Catholic Education Office & Anor [2003] FCA 1085
Bropho and HREOC [2004] FCAFC 16
REASONS FOR DECISION
7 September 2010 Ms A F Cunningham (Senior Member) 1. The applicant, Patrick Reubinson, has been employed as a cooking teacher at the Canberra Institute of Technology (CIT). On 29 April 2008 he submitted a claim for "work-place stress". Comcare denied liability on the basis that his condition resulted from reasonable administrative action. Comcare's decision of 29 January 2009 was affirmed on review on 16 June 2009. Mr Reubinson seeks a review of that decision by the Administrative Appeals Tribunal.
2. In the reviewable decision Comcare accepted Dr George's diagnosis of "chronic adjustment disorder with depressed mood". The respondent accepts that the condition was contributed to in a significant degree by Mr Reubinson's employment and contends that the only issue for determination is the applicability of the exclusionary provision contained in the definition of injury under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) as to whether the applicant's injury was a result of reasonable administrative action taken in a reasonable manner.
3. The following documents were tendered by consent at the appeal hearing. They included a Statement of Agreed Facts, a statement of Fiona Mitchell, the Education Manager for Culinary Programs at CIT, statements of Anthony Mudge, a teacher with the CIT; Gerard Johnston, Senior Policy Adviser with the CIT; Patrick Reubinson, the applicant; John Campbell, student; and medical reports from Drs Madden, George and Rose. The only witness called to give evidence was Fiona Mitchell.
Background
4. The following background facts were taken from the Statement of Agreed Facts tendered in evidence.
1)On Friday 29 February 2008 Ms Mitchell received a complaint from Joanne Fejo (the mother of student, Erin Fejo) alleging that the applicant had made inappropriate comments to a student in a commercial cookery class.
2)On receipt of the complaint Ms Mitchell informed Mr Mudge and attempts were made to contact the applicant that afternoon but he could not be located.
3)Mr Mudge spoke with the applicant on Monday 3 March 2008 and an informal meeting was arranged for 3.00 pm that day.
4)On 4 March 2008 Ms Mitchell spoke with the complainant Erin Fejo and spoke further about the complaint. Ms Fejo provided CIT with a complaint in writing dated 4 March 2008.
5)On 7 March 2008 a written statement was received by another student, Kirra Kirchner, in support of Ms Fejo's complaint.
6)Ms Mitchell sought advice from Mr Johnston as to how the matter should be approached.
7)A further complaint of bullying and harassment by the applicant was received from Erin Fejo on 19 March 2008 in relation to a different incident which occurred on that day.
8)Advice was sought from Mr Johnston and Peter Kowald (Deputy Chief Executive, Operations) and a letter was hand delivered to the applicant at 4.35 pm on 25 March 2008 requiring the applicant to attend a formal counselling session to take place on 28 March 2008.
9)On 26 March 2008 the applicant requested by email that the formal counselling session be postponed and that he be provided additional information about the complaint. The applicant was informed by email that the meeting was cancelled. Ms Mitchell sought advice from Mr Johnston and a formal letter providing further information was sent to the applicant by registered mail on 10 April 2008.
10)On 28 March 2008 the applicant advised by voice mail that the matter was affecting his health, that he had sought a consultation with his doctor and would not be attending work.
11)An investigation was carried out in relation to the complaints against the applicant. An Investigation Report dated 15 July 2008 found that the applicant's actions did not constitute misconduct under section 9 of the Public Sector Management Act 1994.
12)The applicant first consulted Dr Madden, general practitioner on 31 March 2008. In his report Dr Madden advised Mr Reubinson to stay away from work until the situation was resolved. As at the date of the hearing Mr Reubinson had not returned to work at CIT.
Legislation and Procedures
5. The claim for compensation falls within the provisions of the SRC Act. Section 14 states:
"(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment"..
6. An injury is defined in section 5A as:
"'(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment".
7. It is the respondent's contention that the action taken by the CIT staff in response to the complaints received complied with the CIT Complaints Policy as set out in the Canberra Institute of Technology Union Collective Agreement for Teaching Staff 2006-2009 (the Collective Agreement).
8. The Discipline Procedures are contained in section I at paragraphs 77 to 84. The respondent specifically relied on paragraphs 81 and 82. Paragraph 81 reads as follows:
"Step One: Informal Discussion
81.1 Upon becoming aware of possible instances of misconduct that are likely to be resolved without more formal disciplinary action, the manager will informally discuss the particular behaviour with the teacher as soon as possible. The manager should retain an informal record of the discussion e.g. a diary entry. (T)
81.2 In the event that the particular behaviour does not recur, the manager will not take the issue further under these procedures and will inform the teacher of this decision. (T)".
9. Paragraph 82 reads:
"Step Two: Counselling and (if necessary) First Warning/Action
82.1 Upon becoming aware of possible instances of misconduct by a teacher, the manager will counsel the teacher about the alleged misconduct to assist the teacher to improve his or her conduct. Prior to counselling, the manager will:
(a) inform the teacher of the nature of the alleged misconduct in writing, at least 24 hours prior to an interview being conducted, and of the correct conduct required;
(b) invite the teacher to have a union representative, friend or colleague chosen by the teacher present during counselling and allow reasonable opportunity for this to be arranged; and
(c) advice the teacher that the manager will also have a witness present and that a record of the interview will be kept and the teacher will be invited to sign the record of interview. (T)
82.2 During counselling, the manager will:
(a) explain the nature of the alleged misconduct and the possible implications of the misconduct (i.e. the range of discipline actions being considered), and, if appropriate, formally warn the teacher in writing of these possible implications;
(b) give the teacher a reasonable opportunity to respond to allegations before forming a conclusion, (if not possible during the counselling, in light of the teacher's response to any allegations, the manager should as soon as practicable take any further action the manager considers necessary to establish the facts of the allegations. This may require a subsequent meeting);
(c) formulate a plan of action, including, setting out the required standards of conduct and other such steps designed to improve the teacher's conduct; and
(d) set out time frames for review of the teacher's subsequent conduct if appropriate. (T)
82.3 A record of the interview will be provided to the teacher and the teacher will be given the opportunity to correct any inaccuracies and provide comments before signing the record. If the teacher elects not to sign the record, then details of the offer will be clearly noted. (T)
82.4 If a formal written warning is given, the teacher will be clearly advised that the counselling constitutes a "first warning" and that continuing misconduct (or a recurrence of the misconduct of a serious nature as defined in Workplace Relations Regulation 12.10) could result in discipline action up to and including dismissal. (T)
82.5 Where misconduct is sufficiently serious then discipline action may be taken at this point up to and including termination of employment in accordance with Clauses 82.12 and 82.13. If such action is being contemplated, the teacher may also seek to have a union representative, friend or colleague chosen by the teacher represent them in any discussions provided that the teacher is also present. (T)"
The Injury
10. In his claim for workers' compensation dated 29 April 2008 Mr Reubinson described his condition as "work-place stress" as identified by Dr Madden in some of his medical certificates. In a report dated 30 September 2008 Dr Madden diagnosed Mr Reubinson with "reactive anxiety/depression". Dr Norman Rose, consultant psychiatrist, saw Mr Reubinson on 26 September 2008 and opined that he was not currently suffering from any psychiatric condition but had suffered a mild adjustment disorder with anxiety. Dr George, consultant psychiatrist diagnosed "chronic adjustment disorder with depressed mood" following a consultation on 2 July 2008.
11. It is not necessary to determine an exact diagnosis as it is agreed that Mr Reubinson suffered a condition that is "outside the boundaries of normal mental functioning and behaviour" (Comcare v Mooi (1996) 69 FCR 439 at 444). A psychological condition is generally classified as a disease within the meaning of section 5B of the SRC Act (Van Oostveen v Comcare [1998] FCA 1124)
Contributed to, to a Significant Degree by Employment
12. Dr Madden stated in his report of 16 December 2009 that prior to 2008 there had been no history of emotional disturbance or psychiatric illness. Mr Reubinson first consulted him about the matter on 31 March 2009 and for the month prior to this he had been aware that complaints had been made about him but was unaware of the exact details. Dr Madden diagnosed his condition as reactive anxiety/depression which was caused or contributed to by his CIT employment. Dr Rose stated in his report of 26 September 2008 that Mr Reubinson had been well before he was accused of professional misconduct. It was a result of the accusations and circumstances surrounding them that Mr Reubinson had developed mild symptoms of anxiety.
13. The evidence was that Mr Reubinson developed symptoms of stress/anxiety upon learning of the complaint. He said that from 4 March 2008 onwards he felt under a lot of pressure when teaching his students knowing that false allegations had been made about him. Mr Reubinson said that he noticed the effects of his injury from 3 March 2008 onwards, however he continued to perform his duties despite a failing confidence and impaired ability to make decisions. It was upon receipt of a hand delivered letter from Ms Mitchell on 25 March 2008 inviting him to attend a formal meeting on 28 March 2008, together with the visit by Ms Mitchell to his kitchen classroom on 27 March 2008 and other associated events that he consulted his general practitioner, Dr Madden, on 31 March 2008.
14. The Tribunal agrees with the conclusions of the Tribunal in Re Lynch and Comcare [2010] AATA 38, 114 ALD 394 where it said at paragraph 89:
"... Accordingly, it is artificial to attempt to separate out the content of the allegations from the actions of ACT Health in accepting the claims and taking action on them. As Martin CJ noted in Swanson v Northern Territory[30], in a matter on comparable facts that applied legislation based on the Commonwealth Act:
No doubt the fact of the allegations [by some of Mr Swanson's pupils] operated on the mind of the appellant and could be regarded as a “cause” of his injury. However, the summoning [of Mr Swanson by the principal] and imparting of the information was also a cause and the injury was “a result of” that reasonable administrative action. The effect or consequence of the summoning and imparting of the information was the suffering of the injury".
15. Also of relevance is a statement by the Federal Court in Weigand v Comcare [2002] FCA 1464:
"If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled".
16. The term "significant degree" referred to in section 5B(1) is defined in sub-section 3 as "a degree that is substantially more than material". There was no evidence that there were factors other than the work-related issues referred to above that could have contributed to Mr Reubinson's psychological condition. The evidence was that he was not suffering from any psychological condition prior to the events that took place from around 3 March 2008. It was conceded by the respondent and the Tribunal is satisfied on the basis of the evidence referred to above, that Mr Reubinson's psychological condition was contributed to, to a significant degree by his employment within the meaning of section 5B.
Reasonable Administrative Action Taken in a Reasonable Manner
17. A "disease" is included in the definition of "injury" in section 5A unless it falls within the exemption provisions of "reasonable administrative action taken in a reasonable manner". Sub-section 2 lists a number of actions but this is not an exhaustive list. The respondent maintains that their actions were taken in accordance with the disciplinary procedures under the Collective Agreement which would fall within sub-paragraph 2(d).
18. The issue as to whether administrative action is reasonable was considered by the Court in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42. The Court noted that the question is simply a matter of fact and went on to state:
"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".
19. The term was considered by Senior Member Creyke in Wilson and Comcare [2010] AATA 396 where she said at paragraphs 52 and 55:
52. The principal issue is whether the examples of administrative action taken by Defence that affected Mr Wilson 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.[13] What is reasonable is also assessed objectively and relates to the specific conduct involved.[14] 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 soundness 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.[15]
53. In addition, for ‘administrative action’ to be reasonable, it must be established that there was nothing ‘untoward’ about the actions involved.[16] The actions must also not be ‘irrational, absurd or ridiculous’.[17].
54. Whether the administrative actions were lawful depends on adherence to the steps outlined in the relevant policies relating to the employment of Mr Wilson. In relying on relevant policies and agreements, the Tribunal accepts that as Madgwick J said in Kucks v CSR Ltd:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.[18]
Reasonable manner
55. 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.[19]:"
20. There can be a number of work-related factors which contribute to an employee's injury. If the decision-maker is satisfied on the balance of probabilities that one of the work-related factors, which constitutes reasonable administrative action, contributed to the employee's injury to a significant degree, then the exclusionary provision is enlivened. It matters not that there were other factors that also contributed but did not constitute reasonable administrative action. This was the finding of the Full Court of the Federal Court in Hart v Comcare [2005] FCAFC 16, 145 FCR 29. At page 33 the Full Court stated:
"The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry".
Discussion
21. The issues for the Tribunal to determine are whether any of the actions that were taken by CIT in responding to the complaints amounted to reasonable disciplinary action and if so, whether they were undertaken in a reasonable manner. The Tribunal has accepted that the actions contributed to Mr Reubinson's condition "to a significant degree". A further issue that arises is the date of injury.
22. The respondent contended that CIT's actions of immediately endeavouring to contact Mr Reubinson to inform him of the complaint upon its receipt was reasonable in the circumstances and in accordance with paragraph 81.1 of the Collective Agreement. The respondent maintains that the telephone complaint received from the mother of a student alleging that Mr Reubinson had said the words to another student "better to have our head in the toilet than up your arse", constituted a possible instance of misconduct and should be informally discussed with Mr Reubinson as soon as possible. It was alleged that the statement was made to a student who had arrived late to class due to illness. The respondent contended that other relevant matters included the fact that the complainant's daughter was frightened to speak of the complaint, was not eating properly, was suffering from migraines and considering withdrawing from the program. Ms Mitchell had advised Mrs Fejo that the complaint would be followed up but would not be treated as a formal complaint unless it was notified in writing. Mrs Fejo had indicated that she would discuss the possibility of submitting a formal written complaint with her daughter.
23. The fact that a complaint had been received was obviously concerning to Mr Reubinson. He immediately emailed Ms Mitchell and asked for details of the complaint against him so that he could prepare for the meeting. He was informed that no preparation for the meeting was necessary. At the informal meeting held on 3 March 2008, Mr Reubinson denied having made the statement as alleged.
24. The written complaint submitted by Erin Fejo stated that on Thursday 28 February 2008, Mr Reubinson had made the following comment to a student who was late to class in front of other students, "Better to have your head in the toilet bowl than up your arse". Ms Fejo stated that she found "this comment demeaning, humiliating and not professional". She went on to state that she was concerned about the imbalance in the amount of time that Mr Reubinson was spending with mature students which he favoured in class over the younger students like herself. The written complaint was dated 4 March 2008.
25. On Thursday 6 March 2008 an email was sent by Mr Johnston to Ms Mitchell stating that he considered the most appropriate course of action in relation to Mr Reubinson's behaviour was to follow the procedures outlined in the Collective Agreement dealing with discipline. The note recorded that confirmation of the behaviour had been provided by another student in the class. It was also noted that Mr Reubinson had been informally counselled over the last two years in relation to other complaints from students. It was suggested that a letter be sent to Mr Reubinson advising him officially of the nature of the alleged misconduct and indicating that additional information has come to light since the informal meeting last week. A formal meeting would be requested and he would be advised if he could attend with a support person. The letter would also advise that a witness would be present and that a formal record of interview would be taken which he would be invited to sign as a record of the meeting.
26. The further written complaint was not received from Ms Kierra Kirchner until the following day, 7 March 2008. In her complaint Ms Kirchner complained that Mr Reubinson was not giving enough attention to the younger people and that he was spending a lot of time talking about matters unrelated to cooking. She also referred to inappropriate language, and in particular to a student who had been sick Mr Reubinson had said, "At least you've got your head up your ass (sic) and not in the fuckin (sic) toilet bowl".
27. There appears to have been no further contact with Mr Reubinson about the complaints until the hand delivered letter on 25 March 2008. The letter commenced by referring to the complaint received on 29 February 2008 relating to alleged comments made by Mr Reubinson to a student in his cookery class and further stated:
"In light of the seriousness of the complaint and our duty to provide an inclusive learning environment free of discrimination and harassment to our students the matter has been investigated further in relation to our alleged behaviour.
Based on that investigation, additional information has come to our attention that appears to confirm the allegation made in the complaint.
Accordingly, I now think it appropriate to conduct a formal counselling session to discuss the complaint and to give you a formal opportunity to respond to the allegation. You should be aware that in addition to myself, Tony Mudge will also be attending as a witness. I would also invite you to bring a support person, which could be a union representative, friend or colleague. An official record of this meeting will be kept and you will be asked to sign the record of interview.
I have organised the meeting for the 28 March 2008 at 3.00 pm in RK212".
28. The following day Mr Reubinson sent an email to Ms Mitchell noting that she had "carried out an investigation and that additional information" had come to her attention. He requested a detailed written statement of evidence and the nature of her investigation at least several days before the formal meeting/counselling session. Mr Reubinson accordingly requested a postponement of the meeting advising that he would need at least one weeks notice to ensure that his support person was available.
29. That same afternoon Mr Johnston sent an email to Ms Mitchell stating that Mr Reubinson must be given a copy of the complaint from the parent of the student but told not to contact the parent or the student for if he did this would constitute grounds for further disciplinary action. Mr Johnston stated that:
"At this stage you may also provide him with information to the effect that you have discussed the complaint with other students in the class and have received confirmation from them that he did make the alleged statement. At this stage you should not provide him with the names of the students you spoke with".
30. Ms Mitchell was cross-examined about the "other students" referred to in the email and said that the reference was to Erin Fejo and Kierra Kirchner. However the source of the original complaint was from Erin Fejo and the complaint received from Keirra Kirchner was in writing. This appears to contradict Ms Mitchell's advice that she had received confirmation during discussions with other students. The evidence was that the two other students with whom she had had discussions namely Francisca Davis and Heather Doyle, were supportive of Mr Reubinson and made no mention of the alleged statement. It was Mr Reubinson's evidence that Ms Mitchell had entered his kitchen classroom at about 11.30 am on 27 March 2008 and whilst moving through the kitchen spoke to a student, Fran Davis. Ms Davis approached Mr Reubinson at the end of the class in tears and informed him that she had told Ms Mitchell that he was an excellent teacher and was sorry for "what had been going on".
31. On the afternoon of 28 March 2008 Mr Reubinson advised by voice mail that the matter was affecting his health, that he had sought a consultation with his doctor and would not be attending work.
32. A further letter was sent to Mr Reubinson on 10 April 2008 enclosing a copy of the complaint and stating:
"In relation to the investigation that I have conducted following our initial informal meeting, I can confirm that we now have verification from a student that you did make the alleged statement in class.
Please note that under no circumstances are you to contact, by any means, the parent or the student/s regarding this matter and if you do so this would constitute grounds for further disciplinary action.
Based on this information, I now think it appropriate to conduct a formal counselling session to discuss the complaint and give you a formal opportunity to respond to the allegation.
In addition, another complaint has been received from Ms Erin Fejo on 31 March 2008, it is my intention to also address this complaint in the formal counselling session. I have attached a copy of that complaint for your information ..."
The letter proposed a meeting on Friday 9 May at 3.00 pm.
33. Mr Reubinson lodged his claim for workers compensation on 29 April 2008 and the meeting of 9 May 2008 did not take place.
34. In its Statement of Facts, Issues and Contentions the respondent submitted that the deemed date of injury should be 31 March 2008, being the first date on which Mr Reubinson sought medical treatment for the condition or suffered incapacity, or impairment as a result of the condition. In his closing submissions, Mr Berger submitted that the date of injury was on or around 28 March 2008 but further submitted that the evidence supported a finding that the events of 3 March 2008 were a significant stressor that led in a significant way to the onset of Mr Reubinson's condition. Mr Berger maintained that CIT's actions up to that point were "done by the book" and were entirely appropriate and reasonable, constituting "reasonable administrative action taken in a reasonable manner".
35. Mr Anforth on behalf of the applicant, submitted that Mr Reubinson first suffered an impairment by way of a stress condition on around 3 March 2008 which was exacerbated by the events that occurred on or around 25 March 2008 and caused him to become incapacitated for work. The exacerbation in itself, Mr Anforth maintained, constituted a new injury. He submitted that it is open on the evidence to find that there were two injuries. The first being the impairment on or around 3 March 2008 and the second, the diagnosed psychological condition on or around 31 March 2008.
36. In Mr Reubinson's claim for compensation in answer to the question as to when he first noticed that he was ill he responded:
"3/3/08 - 10.30 am".
In response to the question as to what he was doing at the time he was injured, he responded:
"Performing my duties as teacher I was handed a letter by my supervisor this set off a chain of events that caused my stress".
In response to the question as to what action, exposure or event happened to cause your injury or illness he stated:
"Content of letter instructing me to attend formal counselling session and subsequent supervisor's behaviour".
37. These references are to the letter that was hand delivered to Mr Reubinson on 25 March 2008 requiring him to attend a formal counselling session on 28 March 2008. Whilst Mr Reubinson states that he first noticed that he was ill on 3 March 2008, he does not relate any of his employer's actions of that date to his illness. As relayed above, it was following the advice that a complaint had been made against him that he first suffered symptoms of stress with disturbed sleep patterns, self doubt, failing confidence and impaired ability to make decisions. He was however, able to continue with his duties and did not need medical attention.
38. The meeting of 3 March 2008 was convened to deal with the contents of the telephone call from Ms Erin Fejo's mother on 29 February 2008. Ms Mitchell interpreted the details of the oral complaint as a possible instance of misconduct and convened the informal discussion pursuant to paragraph 81 of the Collective Agreement. In hindsight it may have been preferable for management to have discussed the matter directly with Ms Erin Fejo who allegedly overheard the comment rather than rely on a second hand account relayed by telephone. The fact that there may have been a preferable course of action does not mean however, that the course of action undertaken was necessarily unreasonable. For the judgment of reasonableness of the action is an objective one and the test is one of reasonableness not correctness. (See Clarke v Catholic Education Office & Anor [2003] FCA 1085 and Bropho and HREOC [2004] FCAFC 16).
39. CIT's action in convening the informal meeting could not be classified as "untoward" or "irrational, absurd or ridiculous" as the term reasonable has been interpreted. It was claimed that the meeting was convened to give Mr Reubinson an opportunity to respond to the allegation and consider any further action if appropriate. Mr Reubinson refuted the allegation and at that stage it was not intended that the matter be taken any further. Ms Mitchell was aware however, that the complaint may subsequently be formalised in writing by Ms Erin Fejo.
40. It is not contended that the holding of this meeting was in any way unlawful and the Tribunal is satisfied that it was convened in accordance with paragraph 81.1 of the Collective Agreement. The Tribunal is also satisfied that it was undertaken in a reasonable manner. Although Mr Reubinson was not advised the name of the complainant, this was not necessary in the circumstances in which the complaint was received and where it was not contemplated that the matter would be further pursued.
41. The evidence was that Mr Reubinson was indeed affected by the complaint having been made and by not being informed as to the source of the complaint. The symptoms of the stress suffered by Mr Reubinson have been referred to above. The applicant alleges that it was the administrative action undertaken by CIT subsequent to the meeting on 3 March 2008 that led to an exacerbation of his initial stress condition such that he required medical treatment and was thereafter incapacitated for work. In his claim form Mr Reubinson refers to a hand delivered letter instructing him to attend formal counselling which "set off the chain of events that caused my stress".
42. The reference in the complaint can only be referrable to the letter that was hand delivered on 25 March 2008. It was submitted that the contents of that letter that exacerbated Mr Reubinson's condition were the claims that upon further investigation additional information had come to CIT's attention that appeared to confirm the allegation made and that a formal counselling session would be conducted.
43. A formal counselling session was to be conducted in accordance with paragraph 82 of the Collective Agreement which again refers to "possible instances of misconduct" but goes on to state that, "the manager will counsel the teacher about the alleged misconduct to assist the teacher to improve his or her conduct". It is difficult to marry this provision with paragraph 79.3 which states that the counselling of the teacher is an appropriate action "where misconduct is found to have occurred". The respondent has maintained that there was no implication of guilt and that Mr Reubinson was to be afforded an opportunity to respond to the allegations.
44. It was Mr Reubinson's perception however, that a finding of guilt had been made by CIT management. He based this on the contents of the letter and the proposed convening of a formal counselling session which is the commencement of Formal Discipline Procedures under the Collective Agreement.
45. Ms Mitchell was cross-examined at some length as to the nature of the further investigation referred to in the letter and the additional information that appeared to confirm the allegation. She explained that the further investigation was the discovery of earlier unsubstantiated complaints against Mr Reubinson which were of a similar nature regarding inappropriate language. The additional information consisted of the two written complaints that were received from Erin Fejo and Keirra Kirchner. These complaints however, relate to the same allegation and there are discrepancies as to the precise words that were allegedly spoken by Mr Reubinson. Ms Mitchell said in her evidence that she thought Mr Mudge had briefly spoken to both of the complainants which was unable to be confirmed. Mr Mudge does not refer to any discussions with the complainants in his written statement.
46. Despite CIT's contention that they undertook a further investigation, it appears that this did not occur. The question arises as whether in the circumstances a further investigation should have occurred prior to the calling of the formal counselling session. The two complainants were friends and raised similar issues regarding Mr Reubinson's favouring of mature students in their letters of complaint. Whilst the description of the inappropriate language was similar, there are marked differences between the accounts. Ms Kirchner included a swear word which was absent from Ms Fejo's account. There seems to have been no concerted attempt to contact the student (John Campbell) to whom the comment was allegedly made. In his signed statement Mr Campbell disputes the contents of the words allegedly spoken by Mr Reubinson. In paragraph 5 he states that Mr Reubinson (Chef) had asked him where he was that morning and he had replied that he was sick and had his head in the toilet. Mr Reubinson had then said "best to be at home than to be in class ...".
47. Mr Campbell further stated that he and fellow students became aware of complaints having been made against "Chef". Whilst they did not know the substance of the complaints or who had made them, he said it was known that there were three girls who were known trouble makers and that any complaint was likely to have come from them.
48. The first time that Mr Campbell was approached about the complaint was on Friday 4 April 2008 when Mr Mudge pulled him out of a restaurant service class into the hallway. Mr Mudge did not specifically ask Mr Campbell about the contents of the words allegedly spoken by Mr Reubinson but questioned him more generally about Mr Reubinson's language and demeanour. It was not until some time later that he was formally interviewed and signed a statement. Mr Campbell stated that CIT had his mobile phone number and other contact details and that he could have been asked directly about the alleged complaint at a much earlier time, well prior to his formal interview in about June 2008.
49. The contents of the further letter sent to Mr Reubinson on 10 April 2008 are also misleading and not entirely accurate. This letter follows an email sent by Mr Johnston to Ms Mitchell which has been referred to above.
50. Clause 77.2 of the Collective Agreement states:
"These procedures must be applied in accordance with the principles of natural justice and procedural fairness and in a manner that promotes the values and general principles of the ACTPS".
51. Whilst CIT's action in convening a formal counselling session may have complied with the provisions as set out in paragraph 82.1, the Collective Agreement requires that the procedures be applied in accordance with the provisions of clause 77.2.
52. A copy of a Report prepared by Shared Services Centre, Department of Treasury dated 17 October 2008 was tendered in evidence. The Report responded to a request by Mr Gerard Johnston for an independent review of a complaint of bullying and harassment by Mr Reubinson against his supervisors.
53. The Report concluded that the processes conducted by Ms Mitchell and Mr Mudge were broadly consistent with the discipline provisions contained within the Collective Agreement, however noted that:
"... not all steps in this process afforded Mr Reubinson natural justice; specifically, he was not provided with sufficient detail regarding the allegations to enable him to respond during the course of the investigation. Furthermore, the letter directing him to a meeting to respond to the allegations clearly stated that Ms Mitchell had found that the alleged behaviour had occurred".
Conclusions
54. It was submitted on behalf of the respondent that no such inference should be drawn from the contents of the letters sent to Mr Reubinson for the words used in the letter of 25 March 2008 state that the additional information "appears to confirm the allegation made in the complaint". Whilst it is unnecessary to make any findings with respect to the letter of the 10 April 2008 as it postdates the date of injury, in the Tribunal's view it does infer management's acceptance of the complaint.
55. Given the circumstances of the complaints as referred to above and Mr Reubinson's denial of the allegation during the meeting of 3 March 2008, it is the Tribunal's view that further enquiries should have been undertaken by CIT prior to the commencement of Formal Discipline Procedures. The Tribunal considers that simple enquiries of the two makers of the complaint and the student to whom the words were allegedly directed should have been considered and undertaken prior to the convening of the formal counselling session. The letters sent to Mr Reubinson suggested that further investigations had been undertaken when they had not.
56. It is clear that the letter of 25 March 2008 stating that further investigation had been undertaken and that additional information had come to light which appeared to confirm the allegation was the catalyst for the development of Mr Reubinson's psychological condition. Dr Madden stated in his report of 16 December 2009:
"The specific work factors which caused this condition were the false allegations made against him, the way these allegations were investigated and the lack of support he received from CIT in a very stressful situation. Also the lack of support and concilliation following his clearance perpetuated the situation".
Prior to his consultation on 31 March 2008 Dr Madden had noted that Mr Reubinson:
"Had become anxious and depressed following an accusation by his work supervisor that he had shown intimidating behaviour towards one of his students. He was adamant that the accusation was false".
57. Mr Reubinson was understandably upset and concerned about the allegations. However it was the lack of information as to who had made the complaint that primarily contributed to his stress. He was able to continue to work however, until he received the letter of 25 March 2008. This was almost three weeks following the first meeting and apparently without any intervening discussion or the provision of any information from CIT management to Mr Reubinson.
58. Although the convening of a formal counselling session may have been legitimate upon a strict reading of paragraph 82.1, the requirements to afford natural justice and procedural fairness cannot be ignored. As stated, the Tribunal accepts that the contents of the letter of 25 March 2008 could infer at least a preliminary acceptance of the complaint by CIT management. Mr Reubinson's response and reaction was understandable in the circumstances. No additional information regarding the details of the complaint had in fact come to management's attention following the convening of the initial formal counselling session. The first written complaint confirmed the terms of the oral complaint made by telephone and the second written complaint was with respect to the same allegation. The second complaint should have raised concerns in management's eyes warranting at least a formal interview of the two complainants before the commencement of Formal Discipline Procedures against Mr Reubinson. Mr John Campbell should also have been interviewed prior to the commencement of the Formal Discipline Procedures. The Tribunal rejects the respondent's contention that they were unable to contact him because he was not a regular attendee at class.
59. It is the Tribunal's view that a more reasonable response upon receipt of the two written complaints that concerned the same allegation would have been investigation followed by a further informal discussion with Mr Reubinson pursuant to paragraph 81 of the Collective Agreement as discussed above. The commencement of Formal Disciplinary Procedures pursuant to paragraph 82 was an excessive response in the circumstances when no further investigation of the allegations had been undertaken. Although paragraph 82.1 refers to "possible" instances of misconduct, paragraph 79.3 states that counselling is an action available where misconduct is found to have occurred. The very concept of Formal Discipline Procedures is suggestive of at least a preliminary finding of misconduct. However in these circumstances there was no justification for such a finding, preliminary or otherwise, particularly where natural justice and procedural fairness had not been afforded to the teacher who was the subject of the allegations. Mr Reubinson had not been given an opportunity to respond to the allegations prior to the convening of the formal counselling session. He was only given a copy of the complaints in response to his email requesting such details.
60. The actions of CIT were not reasonable as the word is defined in the Concise Oxford Dictionary and referenced by Dr Campbell in his decision Re Georges and Telstra Corporation Limited [2009] AATA 731. CIT's misleading information regarding the further investigations could also be considered "untoward". It was reasonable for Mr Reubinson to conclude that the commencement of Formal Discipline Procedures amounted to the imposition of a penalty in accordance with the provisions of the Collective Agreement before the allegations against him had been properly investigated and he had been given the opportunity to respond.
61. The making of the complaint of which Mr Reubinson learnt during the informal discussion on 3 March 2008 was undoubtedly a contributor to the onset of his condition. However it is the Tribunal's view that it was the administrative action which followed that led to an aggravation of his condition. The action accelerated the condition which had first presented as stress, to the subsequently diagnosed psychological condition. This condition was contributed to to a significant degree by the administrative action undertaken by CIT in response to the allegations against Mr Reubinson. For the above reasons the Tribunal does not accept that the administrative action was reasonable in the circumstances or undertaken in a reasonable manner. The evidence is that Mr Reubinson was consequently incapacitated for work for which the respondent should be liable.
62. For these reasons the Tribunal determines:
1. THAT the decision under review be set aside and substituted with the decision that the respondent is liable to pay compensation for the diagnosed adjustment disorder with depressed mood (or other ICD definition as is administratively preferred by Comcare) from 31 March 2008.
2. THAT the matter be remitted to the respondent for reconsideration in accordance with this decision.
3. THAT there be liberty to apply within 14 days in relation to the costs of the proceedings.
4. THAT in the absence of any such application the respondent is to pay the applicant's costs of and incidental to this appeal.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 20 July 2010
Date of Decision 7 September 2010
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Mr G Wilson, Maurice Blackburn
Counsel for the Respondent Mr A Berger
Solicitor for the Respondent Mr L Woolley, Sparke Helmore
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