RICHARD SAUNDERS and Comcare
[2015] AATA 111
•13 February 2015
[2015] AATA 111
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4643
2013/4739
2013/4740
Re
RICHARD SAUNDERS
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal A. G. Melick SC, Deputy President
Date 13 February 2015 Date of written reasons 26 February 2015 Place Canberra For the reasons set out in the terms of the oral decision of 13 February 2015, attached hereto, I make the following orders:
1. I set aside the reviewable decision in application 2012/4643 and in substitution decide that:
1.1 the applicant is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 for adjustment reaction with anxious mood and psoriasis;
2. I affirm the reviewable decisions in applications 2013/4739 and 2013/4740; and
3. I order that the respondent pay 50% of the applicant's costs, as agreed or taxed.
............................[sgd]............................................
A. G. Melick SC, Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – claim lodged six years after injury – whether precluded by failure to give notice as soon as practicable – application dismissed.
COMPENSATION – Commonwealth employees – injury caused by work – whether reasonable administrative action – whether carried out in a reasonable manner – employee placed under supervision of manager with whom he had prior issues – employer had corporate knowledge of prior issues – Comcare liable for injury.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 14 and 53
CASES
Comcare v Martin [2015] FCA 4
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [1999] FCA 463
Drenth v Comcare [2012] FCA 86
Hart v Comcare (2005) 145 FCR 29
Katherine von Stieglitz v Comcare [2010] AATA 263Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
REASONS FOR DECISION
A. G. Melick SC, Deputy President
26 February 2015
BACKGROUND
Richard Saunders initially worked as a technical officer at the Canberra Institute of Technology, (hereafter ‘CIT’), from August 2000 before becoming a Teacher Band 1 in early 2003. He commenced sick leave in July 2010 before resigning sometime later. He claims compensation for anxiety and depression, a depressive disorder, and psoriasis, as a result bullying and harassment at work. He made claims relating to the same conditions allegedly occurring in 2007 and in 2010.
In relation to 2007, the claim for psoriasis was made on 12 March 2013 and included in the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 s 37 at T7, and adjustment disorder and depression were claimed on 25 March 2013 at T9. Hereafter I refer to those as the 2007 claims. I refer to the 2010 claims, when he made a claim for anxiety, depression and psoriasis on 22 August 2010 at T137, which was later expanded upon on 3 November 2010 at T151.
The respondent denied liability for a claim for compensation for the 2007 claims on 28 June 2013 and on 28 August 2013, and those decisions were advanced to the Administrative Appeals Tribunal in September 2013 as matters 2013/4739 and 4740. The respondent relied upon, inter alia, section 53 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) in relation to these claims.
On 10 December 2010 the respondent denied liability for the 2010 claims and this decision was affirmed on review on 17 September 2012. The respondent relied upon section 5A(1) of the SRC Act in denying these claims and determined they were not compensable injuries because they were the result of reasonable administrative action taken in a reasonable manner in respect of his employment.
LEGISLATION
I pause to refer to some relevant legislation. Firstly, by section 14 of the SRC Act, the respondent is liable to compensate an employee:
(1) Subject to this Part,Comcareis liable to pay compensation in accordance with this Act in respect of aninjurysuffered by anemployeeif theinjuryresults in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of aninjurythat is intentionally self-inflicted.
(3) Compensation is not payable in respect of aninjurythat is caused by the serious and wilful misconduct of theemployeebut is not intentionally self-inflicted, unless theinjuryresults in death, or serious and permanentimpairment.
Injury in the Act means, by section 5A(1):
(1) In this Act:
“injury” means:
(a) adiseasesuffered by anemployee; or
(b) aninjury(other than adisease) suffered by anemployee, that is a physical or mentalinjuryarising out of, or in the course of, theemployee's employment; or
(c) anaggravationof a physical or mentalinjury(other than adisease) suffered by anemployee(whether or not thatinjuryarose out of, or in the course of, theemployee's employment), that is anaggravationthat arose out of, or in the course of, that employment;
Section 5A(1) also provides that injury does not include:
… adisease,injuryoraggravationsuffered as a result of reasonable administrative action taken in a reasonable manner in respect of theemployee's employment.
By section 5A(2), reasonable administrative action includes but is not limited to:
(a) a reasonable appraisal of theemployee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of theemployee's employment;
(c) a reasonable suspension action in respect of theemployee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of theemployee'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 theemployee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
I also refer to section 53 of the Act which I will discuss in more detail later.
Notice of injury or loss of, or damage to, property
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice--as soon as practicable after the employee's death.
(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice – as soon as practicable after the employee's death.
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
If the exclusion under s 5A(2) applies, whether or not factors arising out of the applicant’s employment with the respondent contributed to the development of his condition is not to the point, as decided in Hart v Comcare (2005) 145 FCR 29. The principle established there is that however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of the causes falls within the exclusion the employee is wholly disentitled to compensation in respect of that injury. That decision was also reaffirmed in the matter of Drenthv Comcare [2012] FCAFC 86.
MR SAUNDER’S CLAIMS FOR COMPENSATION
In each of his claims for compensation, the applicant in effect claimed that his ailments arose because of the bullying and harassment, as described in several matters, by his head of department, Mr John Frohlich and in the case of his alleged ailments in 2010 also by his centre director, Glenn Carter.
DATE OF INJURY
The 2007 claims allege the dates of injuries being 25 May 2007 for adjustment disorder and depression, and 26 July 2007 for psoriasis. The 2010 claims allege the date of injury as 22 October 2010.
There was medical evidence supporting the claimed injuries, albeit for a short period of time, in 2007, from Mr Saunders’ GP notes and a report from Dr Warfe dated 30 October 2007, which appears at T54. In a report provided to the respondent dated 16 December 2013, at exhibit P16, Dr Shaikh diagnosed Mr Saunders as suffering from a major depressive disorder dating back to 2007 with further aggravations since events in 2010. He also opined that his condition did have a significant causal link with the performance management process initiation.
Mr Woulfe, on behalf of the respondent, appropriately conceded that the events occurring between April and June 2010 were at least partially causative of the applicant’s depressive disorder, but maintains that these events were as a result of reasonable administrative action carried out in a reasonable manner. Because of the matters set out below it is irrelevant whether the 2010 injury was an aggravation of the 2007 injury or a separate injury, and this was appropriately also conceded by counsel.
THE ISSUES
In relation to the 2007 injuries I firstly have to consider if the respondent’s claim under section 53 of the SRC Act precludes his claim. In relation to the 2010 injuries I have to consider whether the applicant’s major depressive disorder and psoriasis was suffered at least partially as a result of administrative action taken in a reasonable manner in respect of his employment. If so, he will not have suffered a compensable injury. I refer to the earlier comments I made in adopting the ruling made in Hart v Comcare.
SECTION 53
The application of section 53 to the 2007 claims was set out in a comprehensive manner by Mr Woulfe in his written submissions, and with respect, I will now refer in detail to the submissions made by Mr Woulfe. I adopt the following paragraphs of those submissions:
7. Section 53(1) of the SRC Act provides that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority (here, Comcare) as soon as practicable after the employee becomes aware of the injury.
8. Section 53 is, in effect, intended to protect Comcare from being placed in a situation where it is unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. In this connection s 53 of the SRC Act may be regarded as, or analogous to, a limitation period, the policy rationales for which include:
8.1. as time goes by, relevant evidence is likely to be lost;
8.2. it is oppressive […] to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed;
8.3. people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them;
8.4. insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period;
8.5. even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong;
8.6. the public interest requires that disputes be settled as quickly as possible.
9. The applicant did not give written notice of his alleged ailments from 2007 to Comcare as soon as practicable after he became aware of them.
10. The available evidence clearly demonstrates that the applicant was aware of a possible link between his employment and his alleged psychological and physical symptoms on or about 25 June 2007. Although written notice of injury may be given by the lodgement of a claim form, the applicant did not submit a claim for his alleged ailments from mid-2007 until March 2013. This represents a delay of just under six years. This period of delay does not in the circumstances amount to the provision of written notice to Comcare ‘as soon as practicable’ after the applicant became aware of the alleged ailments from 2007.
11. The applicant did not provide any other written notice of his alleged ailments from 2007 to Comcare prior to the lodgement of his claims for compensation in 2013. It is clear that no later than 10 December 2010 Comcare was aware that the applicant attended the Florey Medical Centre on 25 June 2007 complaining of, among other things, anxiety and depression.24 In this connection Comcare became aware of the applicant’s attendances on the Florey Medical Centre in the context of a medical report of Dr Tang dated 22 November 2010. However, Dr Tang volunteered this information in response to a request by Comcare for him to provide a medical report in relation to the alleged ailments from 2010. The evidence given by Dr Tang in connection with the claim for the alleged ailments from 2010 was not written notice of an injury given by the applicant. The evidence, such as it were, was insufficient to enable Comcare, with the aid of the CIT, to have a fair opportunity to investigate a claim properly.27 A claim for the alleged ailments from 2007 had not, at the time, been made. The mere existence of evidence that might be relied upon to support a different claim is distinguishable from the actual submission of written notice and claim. There is, for example, no power for Comcare to make a determination of own motion.28 In any event a three and one half year delay (from mid-2007 to late 2010) is still not ‘as soon as practicable’.
12. In all of the circumstances the applicant failed to give notice in accordance with s 53(1) of the SRC Act.
13. However, despite the above, the applicant will be taken to have given notice in accordance with s 53 of the SRC Act if:
13.1. Comcare would not, by reason of his failure, be prejudiced if the notice given in 2013 were treated as a sufficient notice; or
13.2. his failure resulted from a person’s absence from Australia, ignorance, mistake or any other reasonable cause.
14. In the circumstances it would not be appropriate to conclude that the applicant’s failure to give notice is cured by s 53(3) of the SRC Act. The reasons for this include the following.
15. First, Comcare would be prejudiced if the written notice given by the applicant were treated as a sufficient notice. Where there is delay the whole quality of justice deteriorates. And prejudice may exist without the parties or anybody else realising that it exists. The prejudice suffered by Comcare in the circumstances is demonstrated by, among other things, the following:
15.1. Comcare has been denied the opportunity to contemporaneously interview witnesses who could attest to the relevant workplace events, particularly those occurring on 19 June 2007, 20 June 2007 and 26 June 2007 (if the latter is relevant);
15.3. many of the witnesses’ recollections of the events generally seemed to be affected by the passage of time;
15.4. Comcare was denied the opportunity to have the applicant contemporaneously examined for the purposes of assessing the suite of issues arising under a claim pursuant to s 14 of the SRC Act – the prejudice is greater where the evidence from September 2007 and October 2007 is diametrically opposed on the question of whether the applicant might have suffered a work-related illness;
15.5. in connection with the above point, Comcare was not given an opportunity to contemporaneously investigate whether the applicant’s alleged ailments from 2007 met the increased evaluative threshold under s 5B of the SRC Act, which applies as and from 13 April 2007;
15.6. Comcare has lost the opportunity for either it or the CIT to work with the applicant and provide medical treatment and rehabilitation (in particular, psychological and psychiatric treatment) to him in the period after his alleged ailments from 2007. This has effects on not only the applicant but results in increased potential costs to the SRC Act scheme.
16. Secondly, there is no evidence that the applicant’s failure to give timely written notice was due to a person’s absence from Australia.
17. Thirdly, there is no evidence that the applicant’s failure to give timely written notice arose due to ignorance. On the contrary, the applicant knew at the time in 2007 that it was open to him to submit a claim for compensation. He also submitted a claim in relation to the alleged ailments from 2010 in the year in which they were allegedly sustained.
18. Fourthly, there is no evidence that the applicant’s failure to provide timely notice arose from a mistake.
19. Finally, there is no evidence, or no persuasive evidence, that the applicant’s failure to provide timely written notice arose from any other reasonable cause.
I delete the second sentence of paragraph 19 of the Respondent’s submissions and instead read:
As the connection, the applicant seemed to suggest he did not submit a claim because he wanted to keep his job and he was told not to submit a claim by Nicki Tonkin.
I reject such inference and adopt the rest of paragraph 19:
Any such argument should be rejected. Ms Tonkin was employed by the CIT as a case manager. Part of her role was to assist injured employees, which included advising them of the right to claim compensation. Ms Tonkin also obtained training in her duties from Comcare. In all of the circumstances it is likely that Ms Tonkin’s version of events is correct and the applicant’s version is incorrect. The circumstances do not amount to ‘any other reasonable cause’ for the purposes of s 53(3) of the SRC Act.
Accordingly, I rule that in all the circumstances, the applicant has failed to comply with section 53 of the SRC Act and I rule that the SRC Act does not apply to the claimed ailments from 2007. That being so, I affirm the decision under review in matters 2013/4739 and 2013/4740.
EVIDENCE
I will now consider the evidence in relation to the 2010 claims. The evidence was often convoluted with conflicting versions being presented by both parties. I consider it unnecessary to resolve many of the conflicts because of the matters I have decided that are relevant to the consideration of section 5A of the SRC Act, and I make the following findings.
Mr Saunders was an extremely competent technical officer and was considered by many to be an inspirational teacher. Others, including several supervisors, considered he had many defects as a teacher, including inadequate lesson plans, disorganised lessons, and a failure to adopt the governance requirements relating to properly accounting for his time. He was originally introduced to CIT by Mr John Frohlich, who spoke very highly of him and supported his efforts to transfer from being a contracted technical officer to a permanent teaching role. There was also social contact between the two of them.
Although Mr Saunders’ evidence was at times vague and seemingly the result of rationalisation, which may have been a result of his medical condition, I was satisfied that he was not deliberately trying to mislead the tribunal. However, I was not prepared to accept his evidence on significant events when not corroborated.
Mr Frohlich was alleged to be at times aggressive, abusive and in the habit of yelling at Mr Saunders. He denied such behaviour but conceded that his Italian blood caused him to be very expressive at times, significantly including waving his hands. He had poor recollections of some significant events, which in view of the passage of time is understandable. Once again, I was not prepared to accept his version of events where not corroborated. I formed the impression that the actuality lay somewhere between their differing versions.
There was a significant deterioration in the relationship between Messrs Saunders and Frohlich in 2007, demonstrated by contrasting stories about events that occurred at the MIC Fest in 2007. Mr Saunders alleged that after working long hours he was taken aside and verbally berated about his performance and that of his students at the event, and he found Mr Frohlich’s behaviour totally demeaning and totally unacceptable.
There were several other complaints made by Mr Saunders about Mr Frohlich’s behaviour in 2007, which were later reduced to writing in a document dated 20 July 2007, before the Tribunal at T29, but not seemingly sighted by anyone at CIT until January 2008. It became apparent that there was a significant problem with the relationship between Mr Saunders and Mr Frohlich, and Dean Kaye O’Hara called a meeting on 26 June 2007. The notes of that meeting appear at T24, and I note the heading:
The meeting of 26 June 2007. Kaye O’Hara, John Frohlich, Toni Purnell, Andrew Bowman, and Richard Saunders.
I also note that Andrew Bowman was Mr Saunders’ support person. The notes continued under the heading “Purpose of the Meeting”:
To identify communication, performance, operational and supervisor issues that are contributing to a poor work situation. To discuss strategies, clarity and agreements that will lead to a positive work environment.
Under “Background”:
Kaye explained the background of this meeting.
CIT held its FAT awards on 19 June. Richard was not at the National Museum at 6 p.m. as expected by other members of the team. This is reported to have caused stress to John, NMA staff, the event coordinator and students.
John raised this with Richard the morning after. Richard said he found the tone of the words offensive and would not talk to John about it without somebody else present.
John stated he did not agree that the tone of words were spoken offensively, and that there were witnesses to the interaction.
John then wrote an email to Richard (attached) documenting his concerns in relation to the FAT awards and raising other concerns.
Both John and Richard contacted the Dean to discuss the situation. In these discussions:
·John raised the issues of performance in relation to Richard’s role in the department.
·Richard raised issues of inappropriate communication in relation to John’s interaction with him. He also raised operational issues about his hours of attendance and expectations.
As a result of that meeting Mr Saunders was placed under the supervision of Ms Purnell, and I note that Mr Frohlich indicated that he asked not to be Mr Saunders’ supervisor in the future. In any event, he was removed from the supervisory role in relation to Mr Saunders. Mr Saunders was placed under Ms Purnell for, among other things, performance management. Mr Frohlich was also placed under a performance management regime.
In relation to that meeting, Mr Saunders alleges he was yelled at and spoken to loudly by Mr Frohlich. Mr Frohlich says that was not the case. I note Ms O’Hara makes no mention in the notes about the tone of the discussions whatsoever, but the support person, Mr Bowman, supports Mr Saunders’ version of events, indicating an inappropriate loud voice by Mr Frohlich.
Mr Woulfe criticises Mr Bowman’s evidence saying, firstly, that he’s a friend and supporter of Mr Saunders; and, more importantly, that he made detailed diary notes but said nothing in the diary notes about the tone of the voice.
I also note that Ms O’Hara referred to informal complaints from students and other staff about Mr Frohlich’s manner of speaking to then, although he always apologised to the person he upset. The Australian Education Union (AEU) representative, Mr Michael Fitzgerald, also gave evidence about Mr Frohlich’s aggressive behaviour towards Mr Saunders. Although noting Mr Woulfe’s comments, I find that Mr Frohlich’s behaviour in 2007 justified the performance management regime imposed upon him by Ms O’Hara. I also note that Mr Frohlich seems to have been not unreasonably frustrated by Mr Saunders’ performance, but at the end of the day I find his behaviour led to the conditions described by Dr Warfe in relation to which I have already affirmed the respondent’s decision to deny compensation.
It then appears that for the part of 2008 when Mr Frohlich was not on leave, and for 2009, that he and Mr Saunders had a cordial relationship, even going on a skiing trip together and occasionally socialising. Although they acted as co-teachers from two to four hours a week, Mr Frohlich was not supervising Mr Saunders who was in fact being directly supervised by Mr Peter De Dekker, who was the centre director for CIT. Mr De Dekker was aware of the issues between Mr Frohlich, who managed his Communications, Media and Music Department, and Mr Saunders. He had also witnessed an example of that at a meeting in 2008, and I refer to his comments which appear at page 434 of the transcript. I asked Mr De Dekker:
Did you at any stage have a meeting involving Mr Frohlich and Mr Saunders?
He replied:
Yes, of course. Yes, I had several meetings where we were talking about which particular activities from prior students and I suppose, in coming to the particular meeting when John Frohlich lost his temper, was attacking Richard completely [and] I suppose that’s what you are referring to.
Mr Woulfe objected to the evidence. I replied that I wanted more particularity. Mr Ryan then asked:
So when you say that Mr Frohlich lost his temper, could you tell the tribunal, please, what you observed and heard?
Mr De Decker answered:
Well, as I said, it was a long time ago but John became fairly erratic and insulting Richard, saying, “He’s completely incompetent. Unable to teach appropriately,” which I found completely untrue, and Richard was very shaken with these comments. I decided to look at another option to deal with these two gentlemen.
I am not suggesting that Mr Frohlich did not have reasons to complain about Mr Saunders’ performance as a teacher, however, the inappropriate behaviour described by Mr De Dekker is a matter which will become relevant later in this decision. I also note Mr Woulfe’s comments alleging that Mr De Dekker was managed out of CIT for what he described as under-performance and, therefore, he had an axe to grind with CIT, which would colour his evidence. However, in view of the other evidence, including comments made by Ms O’Hara and the fact that Mr Frohlich had been placed on a performance management regime, I am satisfied that the event occurred in the manner described by Mr De Dekker.
I should note at this stage that it appears that Mr Frohlich was a very competent and effective manager, who at times tended to let his emotions get away with him, and later apologised. I am not making any finding that he at all times behaved inappropriately. In fact, the majority of the time he seems to have behaved in an exemplary manner.
I also note that Mr De Dekker seems to have a far higher opinion of Mr Saunders than others. This may have been a result of him assessing Mr Saunders for his technical rather than teaching skills, which were said to have been at least in some respects fairly criticised. There was a significant amount of conflicting evidence about the Performance Management Plans (PMPs) and Performance Improvement Plans, most of which I do not consider necessary to resolve, although I note the following.
There was no PMP in 2006. There was a plan commenced in 2007 and never completed because Mr Saunders’ then-supervisor was not prepared to sign off on the time management system, and insisted that Mr Frohlich sign off on it, but Mr Frohlich refused to sign off on it because he maintained he did not have enough information about Mr Saunders’ hours. There was supposed to be a Performance Improvement Program in 2007 and 2008, but Mr De Dekker didn’t think it was warranted, and signed off on the PMP without consultation with Mr Frohlich. There was no PMP in 2009.
I also find that Mr Saunders was not attuned to the PMP process, which he found stressful, and attempts to have him submit a PMP in 2010 precipitated his 2010 injuries. Mr De Dekker left CIT in early 2010, although it appears he actually finished in late 2009 and went on leave. His place was taken by Mr Carter in an acting position. There was no handover between Mr De Dekker and Mr Carter. At this stage Mr Saunders had not returned to work and did not do so until 19 April 2010, due to taking leave for a variety of reasons, including carer’s leave to look after his elderly mother who lived in Queensland. I should note when I say there was no handover between Mr De Dekker and Mr Carter, there was a very brief handover where some keys were taken over, but there was no briefing.
Prior to Mr Saunders’ return to work, Mr Carter met with him on 11 February 2010 to discuss various matters, including his proposed carer’s leave. Upon Mr Saunders’ return to work, Mr Frohlich became his supervisor. Mr Carter at no time whilst Acting Centre Director of Creative Studies was advised that Mr Saunders had had previous issues working under Mr Frohlich’s supervision.
ISSUES TO BE DETERMINED
The respondent contends that I only have to consider the knowledge held by Mr Carter when considering the matter relating to section 5A of the SRC Act, whereas the applicant contends that the relevant knowledge was that held corporately by CIT and possibly Mr Frohlich. I note the various states of knowledge, and that Mr Frohlich and Mr Saunders had worked together and had some social contacts without apparent problems while Mr Saunders was working under the supervision of Mr Carter.
It seems Mr Carter had no knowledge of any aspect of Messrs Saunders and Frohlich’s past relationship. He observed them both at meetings on 19 April and 22 June, and noted no concerns about the way they interacted. However, I find that CIT as an organisation had knowledge of the following:
(a) The complaints made by Mr Saunders and Mr Frohlich, which were discussed at the meeting on 26 June 2007;
(b) The fact that Mr Frohlich was removed or removed himself as Mr Saunders’ supervisor in mid-2007; and
(c) The complaint dated 20 July 2007 but probably not seen until January 2008. I note that Mr Woulfe challenged the reliability of this complaint because of the timing of Mr Saunders releasing it to the CIT whilst being under investigation for inappropriate attention and behaviour towards a female student. But the facts that the allegations were made is very relevant, no matter where the truth lay.
(d) The report of Dr Warfe dated 3 October 2007, in which Mr Saunders describes Mr Frohlich as a control freak and micro-manager who frequently displayed erratic behaviour and was verbally abusive to him in private. Dr Warfe diagnosed Mr Saunders as suffering from a short period of anxiety and psoriasis, allegedly associated with the workplace disharmony around July 2007.
(e) Medical certificates indicating stress in 2007.
(f) Interaction in 2008 between Mr Frohlich and Mr Saunders described by Mr De Dekker and referred to above.
(g) The concerns noted in 2008 emails to CIT managers by the AEU representative, Mr Fitzgerald, at T92 to T94.
I pause to note some of those. In an email from Mike Fitzgerald to Gerard Johnston on 4 June 2008, he notes:
You will recall I was present at the final meeting of his 2007 PMP (in April this year) and I observed the manner in which it proceeded was less than conducive to encourage willful and engaging participation by Richard. Richard had stated that each of his previous PMP meetings in 2007 had turned into shouting matches between himself and his managers and I personally witnessed hostile exchanges at the meeting I attended.
Then again at page 5 of 6, on T92:
Kaye stated that one of the principal reasons behind Tony Purnell being into the band 2 role at the department this time, was to directly manage and supervise Richard, following the identification of irreconcilable problems between John and Richard. Toni made the comments on several occasions during a PMP meeting that John had been asked to sign off on Richard’s TMS but had refused/neglected to do so.
Once again, I don’t consider it necessary to determine the truth or otherwise of the matters raised by Mr Fitzgerald, the critical matter being that CIT were aware of those concerns being expressed by him.
(h) Mr De Dekker indicated he would not have moved Mr Saunders back under John Frohlich’s supervision, at least not without a briefing.
Mr De Dekker also noted that Mr Saunders found the PMP process stressful.
Mr Frohlich was aware of at least matters (a), (b) and (f) above but did not alert Mr Carter to those matters or any previous difficulties between himself and Mr Saunders. In fact, he noted that Mr Saunders appeared to be working well whilst not under his supervision, and they had been getting on well socially. He said that he thought that the past problems were in fact over.
THE EVENTS OF 2010
There is conflicting evidence about the manner in which the meetings on 19 April and 6 June 2010 were conducted, but it is clear that upon Mr Saunders’ return to work on 19 April 2010 he was placed under Mr Frohlich’s supervision and required to commence the annual PMP process. Mr Saunders said he did not raise his concerns with Mr Carter because he wanted to keep his job and was prepared to give it a go since things seemed to have improved whilst not under Mr Frohlich’s supervision.
There seemed to have been two tipping points in 2010. Namely, the meeting in June 2010, which occurred at Café Yala, with only an hour’s notice to Mr Saunders, and an email dated 22 June 2010 from Mr Carter to Mr Saunders in which Mr Frohlich was copied in. At the Café Yala meeting Mr Saunders allegedly was criticised and verbally abused by Mr Frohlich, but I consider that to have been an exaggeration – intended or otherwise – as it was denied by both Mr Carter who I considered a credible witness, and Mr Frohlich.
I find that meeting to be a reasonable administrative action in that Mr Carter was attempting to have Mr Saunders complete the PMP, about which he had reason to be concerned because it was “overdue” due to Mr Saunders’ late start to the year.
On 22 June he sent an email to Mr Saunders, at T117, which reads as follows:
Richard,
Have you completed your performance management plan completed with project items and class teaching schedule?
It needs to be presented to your supervisor John Frohlich, as discussed and agreed by you at previous meetings.
This seems to be dragging on a lot longer than is necessary.
Could you please advise both John and me the status and reason why it is not completed and ready for signing?
Also when will some of the short videos be ready for viewing?
I would like to see these please so they can be agreed and accounted against your teaching on tms.
Thanks
Glen Carter.
This email was sent because it was towards the end of the semester and Mr Carter was being replaced by another director and he was attempting to tidy up loose ends. It was agreed amongst the parties that the relevant actions carried out by Mr Carter were reasonable administrative actions, and that is consistent with the judgment in the Commonwealth Bank of Australia v Reeve [1999] FCR 463. I find this to be reasonable administrative action. On that day Mr Saunders obtained a medical certificate citing stress and commenced sick leave.
WAS THE ADMINISTRATIVE ACTION CARRIED OUT IN A REASONABLE MANNER?
The question remaining is whether the actions were carried out in a reasonable manner. I now turn to consider some authorities in relation to that. At paragraph 67 of Katherine Von Stieglitz v Comcare [2010] AATA 263, Professor Creyke, Senior Member, and Member Miller said:
Whatever administrative action is to be taken must be “reasonable”. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’, Dr Campbell summed up many facets of these principles in Re Georges and Telstra Corporation Ltd when 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 or more than might be expected, tolerable, fair.
In that paragraph, Mr Woulfe relied upon:
Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned.
He submits that it must be what’s known to Mr Carter at the time, and I should consider and take into account what was reasonable, assessing objectively Mr Carter’s actions after taking into account his subjective knowledge. Mr Ryan would submit that what was known at the time must refer to the knowledge of CIT. I will return to this issue shortly. At Comcare v Martinez (No 2) [2013] FCA 439 at paragraph 82, Robertson J said:
In my view, since context is a large part of statutory construction, it is not appropriate to start from a context so remote from the SRC Act…I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.
I also refer to the comments at paragraph 83 of that judgment:
I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42 at 47-48 where his Honour said, in a context much closer to the present legislation:
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 administration [sic] action was taken in a reasonable manner by the employer.
In Comcare v Martin [2015] FCA 4, Griffiths J noted the same passage from Keen, and continued at paragraph 68:
It may be noted that the Tribunal referred to that passage from Lander J’s judgment in [66] of its reasons for decision. It also referred in [67] to the following passage from Bleby J’s judgment in Keen (at 63):
...whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
I am satisfied that the actions carried out by Mr Carter in light of what he knew, or more relevantly what was not known to him, were carried out in a reasonable manner, but that is not the end of the matter. Neither counsel nor I were able to find any relevant laws to whether the corporate knowledge of CIT referred to above, and not known to Mr Carter, should be taken into account when determining whether or not the actions were carried out in a reasonable manner.
Mr Woulfe submitted that it was an objective test based on what was subjectively known by Mr Carter, and not CIT’s corporate knowledge. If he is correct, the applicant must fail. Mr Ryan adopted my suggestion that an employer could escape liability by deliberately withholding relevant information from the decision-maker responsible for the administrative action, if the test proposed by Mr Woulfe was correct.
I note the comments I made above when referring to the relevant law, referring to reasonable, especially those referring to taking into context the whole of the matter. I feel it only appropriate to take into account all the relevant circumstances known to CIT and form an objective assessment as to whether reasonable administrative action was taken in a reasonable manner. The very fact that Mr Saunders was placed back under the supervision of Mr Frohlich, who was present at the meeting on 6 June 2010, a necessary part of the process requested in the email of 27 June, together with the matters set out at paragraphs 37(a) to (h) above, lead me to the conclusion that the actions were not carried out in a reasonable manner.
I also note that Mr Woulfe submitted that each of the actions of 2010 could be separately considered, and if any one of them caused the injury – I find that the two relevant matters to be 6 June and 27 June – and if either of those were reasonably carried out, then the applicant must fail. I reject that submission and consider the matters must be considered together, as suggested above. But if I am incorrect about that, I find that both actions were carried out separately and in an unreasonable manner because of the involvement of Mr Frohlich.
Accordingly, I set aside the respondent’s determination of 17 September 2012 and allow the applicant’s claim. I make the following orders:
1. I set aside the reviewable decision in application 2012/4643 and in substitution decide that:
1.1 the applicant is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 for adjustment reaction with anxious mood and psoriasis;
2. I affirm the reviewable decisions in applications 2013/4739 and 2013/4740; and
3. I order that the respondent pay 50% of the applicant's costs, as agreed or taxed.
I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of A. G. Melick SC, Deputy President ..............................[sgd]..........................................
Associate
Dated 26 February 2015
Date(s) of hearing 19-23 and 28 January 2015; 12-13 February 2015 Counsel for the Applicant Christopher Ryan Advocate for the Applicant David Lander Solicitors for the Applicant Lander & Co Counsel for the Respondent Peter Woulfe Advocate for the Respondent Loretta Tolland
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