Ringshaug and Comcare (Compensation)
[2016] AATA 88
•18 February 2016
Ringshaug and Comcare (Compensation) [2016] AATA 88 (18 February 2016)
Division
GENERAL DIVISION
File Number(s)
2014/1559, 2015/1278, 2015/1602
Re
Sue Ringshaug
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Dr Ion Alexander, MemberDate 18 February 2016 Place Canberra The decisions under review are affirmed.
...............................[sgd].........................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employees – whether employee suffered an ailment – whether reasonable administrative action – whether acting in respect of employment – whether carried out in a reasonable manner – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
Cases
Hart v Comcare (2005) 87 ALD 341
Keane and Australian Postal Commission (1977) 1 ALD 53
Lynch and Comcare (2010) 114 ALD 394
Martin v Comcare (2015) 148 ALD 1
Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540
REASONS FOR DECISION
Deputy President Gary Humphries
Dr Ion Alexander, Member18 February 2016
Background
The Tribunal has before it three claims brought by Ms Sue Ringshaug under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Ms Ringshaug has worked for Disability ACT (under its various names) for almost 20 years. She began her work there as an Administrative Support Officer (ASO) in the Scheduling Office in March 1996, but in recent years has also trained and worked as a Disability Support Officer (DSO) in the group houses run by Disability ACT for people with disabilities.
During that time, Ms Ringshaug has been afflicted by workplace-related illness. In 2001, she suffered an episode of work-related sprain of shoulder & upper arm (bilateral) (though there was some dispute as to whether this could be characterised as occupational overuse syndrome (or repetition strain injury (RSI)); the role of an ASO apparently involves extensive keyboard use). In February 2011, her GP, Dr Low, diagnosed occupational overuse of her right upper limb and in April 2011, Comcare, the respondent in these proceedings, accepted liability for a condition of her neck and right shoulder, arm, wrist and fingers. She undertook a graduated return to work during 2011.
By the time an occupational physician, Dr Le Leu, examined Ms Ringshaug in October 2011 he found that her history was consistent with RSI but, due to previous treatment and the passage of time, there was little to find on examination. Dr Low certified her fit to return to her pre-injury duties from December 2011. During 2012 she worked part-time as a DSO and part-time as an ASO.
On 19 March 2013, Ms Ringshaug attended a meeting with Ms Pieta White, the Scheduling Office Coordinator. At that meeting Ms White told Ms Ringshaug that she would no longer be able to undertake a joint role as a support worker in the group houses and in the Scheduling Office. Ms White told her that, to finalise her workers’ compensation claim of 2011, Ms Ringshaug would need to return to her previous role as a scheduling officer for a short period. She was also informed that undertaking a joint role in the future was not possible due to a conflict of interest. Ms Ringshaug raised concerns about the nature of her work as a scheduling officer and its impact on her RSI condition, as well as concerns about having to be on a roster with some days starting at 7am. The meeting broke up without these issues being resolved.
Over the subsequent two months, there were meetings and emails in which the issues of the meeting of 19 March were discussed, some involving a delegate of the Health Services Union (HSU). These exchanges involved negotiated modifications to Ms Ringshaug’s roster, so that the number of 7am starts could be reduced. On 17 May 2013, Ms Ringshaug read an email from Ms Wilhelmina Blount, her senior manager, dated 15 May, which implied that her bid to work a joint role as both an ASO and a DSO had been rejected. Ms Ringshaug was upset by this email (devastated, felt nauseous and suffered heart palpitations and dizziness). On 20 May she attended Dr Low, who recorded that she was very stressed and anxious due to circumstances at work relating to her work roster and apprehension of re-injury. She began an extensive period of sick leave, during which Dr Low certified elevated blood pressure levels.
On 21 June 2013, Ms Ringshaug lodged a claim for workers’ compensation, based on anxiety and hypertension. She attributed her injury to reading the email from the senior manager on 17 May 2013. In her claim, she stated I feel that I have been bullying and discriminating [sic] with unprofessional accusations from my line manager. More details of the behaviour she alleged had occurred by management at Disability ACT were provided in an employee statement of 21 August 2013. In the statement, Ms Ringshaug said that at the meeting on 19 March 2013 Ms White had thrown the roster at her and that the roster had been designed to prevent her from picking up creamy shifts. Ms Ringshaug said she felt humiliated and insulted by what had been said. Ms Ringshaug said that she wanted to speak to her line manager and Ms White responded by saying you just want to pick a fight and walked out. She said that her managers were trying to bully me into working a roster that would affect my well-being and exacerbate my pre-injury.
In a determination dated 25 September 2013, Comcare denied liability for Ms Ringshaug’s condition of anxiety and hypertension under s 14. It affirmed the determination on 18 February 2014 and Ms Ringshaug lodged an application to review this decision on 25 March 2014 (2014/1559 – the first action).
In a medical certificate dated 17 March 2014, Dr Low certified that Ms Ringshaug was unfit for work due to an aggravation of sprain to R elbow, R wrist and R fingers caused by Excessive use of computer. On the same day, Dr Low recorded in his clinical notes Roster issues, not able to adjust work times. Recurrence of pain R wrist/R elbow, gripping poorly. On 13 May 2014, Ms Ringshaug’s solicitors lodged a workers’ compensation claim for permanent impairment and non-economic loss in relation to her accepted Aggravation of right upper limb overuse injury, noting the impairment as right hand, R wrist, R upper limb and Neck. Comcare denied liability under this claim on 29 January 2015, and affirmed that decision on 24 February 2015. Ms Ringshaug sought a review of that decision by this Tribunal on 19 March 2015 (2015/1278 – the second action).
On 12 November 2014, Ms Ringshaug lodged a claim for workers’ compensation for a secondary condition of Secondary Major Depressive Disorder and Adjustment Disorder with Anxiety. In it she claimed that the condition developed as result of her previous physical injuries, saying she first noticed her condition on 17 May 2013 and first sought treatment for it on 21 May 2013. Comcare denied liability for this condition on 28 January 2015 and affirmed that decision on 16 March 2015. On 7 April 2015, Ms Ringshaug filed an application in the Tribunal for review of that decision (2015/1602 – the third action).
The applicable law
Section 14 of the Act provides as follows:
(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.
In turn, “injury” is defined in s 5A, as follows:
(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.
Section 5B defines “disease”:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
The issues to be determined
To a certain extent the fate of the two later claims brought by Ms Ringshaug (2015/1278 and 2015/1602) hinge on the outcome of her first action, for anxiety and hypertension. Both parties put to the Tribunal that there was at least a substantial psychosomatic element in the second action, for aggravation of right upper limb overuse injury, arising as it was purported to from Ms Ringshaug’s psychological injury which is the subject of the first action. Both parties accepted, in relation to the first action, that if the Tribunal finds that there is no injury under s 14 – either because it was not an ailment or because it was the product of reasonable administrative action – then the second action automatically fails. In relation to the third action, Ms Ringshaug’s assertion was that the depression and anxiety claimed for was induced by chronic physical pain arising from the RSI condition in 2014, whereas the first action was based on the administrative actions which culminated in the email of 15 May 2013. Conversely, Comcare argued that the RSI had resolved long before 2014 and could not be the basis for a psychological condition at that time but that, if there was such a condition, it was the result of reasonable administrative action taken in a reasonable manner in respect of her employment. A measure of interdependence between the three actions is thus evident.
In relation to the first action, the issues for resolution before the Tribunal are:
(a)whether Ms Ringshaug has suffered an ailment (being a mental condition outside the boundaries of normal mental functioning and behaviour);
(b)if so, whether it occurred as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.
Comcare conceded that if her psychological condition was indeed an ailment for the purposes of the Act, then it was contributed to, to a significant degree, by her employment.
The Tribunal accepts the parties’ contention that failure of Ms Ringshaug’s first action would lead inevitably to failure of the second action.
The medical evidence
Ms Ringshaug made many visits to her GP, Dr Low, during the period in question. Dr Low first diagnosed RSI in February 2011, and over the course of that year certified her gradual return to a pre-injury level of fitness for work. During this time he recommended avoiding prolonged sedentary deskwork and that she obtain weekly physiotherapy and attend Ergogym. He recommended that keyboard work should be accompanied by frequent breaks. On 17 October 2011, Dr Le Leu, an occupational physician, recommended that Ms Ringshaug:
… could either return to full-time scheduling or return to a combination of scheduling and disability work. The latter would be the best option in the future provides [sic] she receives adequate training and there are appropriate lifting devices and policies in place.
He added:
She takes the reasonable viewpoint that a mixture of work would be better for an overuse condition.
He found that her condition had stabilised (largely recovered) but that she was vulnerable to a further recurrence if she is not careful to avoid excessive, repetitive use of the arms and hands particularly under conditions of stress.
In a report dated 16 November 2011, physiotherapist Ms Tanya Stewart for Ergogym recorded that Ms Ringshaug reports that she is at 100 percent of her pre-injury capacity provided she does not perform provocative activities. On 23 December 2011, Dr Low certified Ms Ringshaug as fit to return to pre-injury duties, including being on call. In a further medical certificate of 28 March 2012 Dr Low certified her to return to her duties as either an ASO or DSO.
Following the incident of 17 May 2013, when Ms Ringshaug became upset on reading Ms Blount’s email, she again attended Dr Low, who recorded on 20 May:
Dept has ordered patient to return to office full time, Patient forced to work according to unsuitable roster, which is made up of hours rejected by colleagues. Dept refuses to grant patient mixed duites [sic] in any way… Patient is apprehensive of incurring work injuries as before. Patient feels very stressed, anxious, affecting sleep, and is very averse to RTW.
He recorded that Ms Ringshaug had high blood pressure. That day he diagnosed Working condition problems – unreasonable management refusing patient’s request to perform mixed duties which will prevent recurrence of previous work injuries. This has resulted in anxiety, hypertension, and loss of patient’s motivation to work. He recorded further high blood pressure readings on 17 June, 15 July, 8 August and 15 August 2013. On 18 November 2013, Dr Low issued a report in which he said The continual agitation and lack of support by her work management over her work roster has caused her various ailments like insomnia, poor concentration, lack of motivation and elevation of her blood pressure.
Dr Jetnikoff, a consultant psychiatrist, provided a report dated 30 August 2013 in which he found that Ms Ringshaug did not suffer from a psychiatric disorder and that her anxiety about re-injury was within the normal realm of mental functioning and behaviour. He noted that she had become quite cautious, but he did not regard this as pathological. He also noted that she has reached a stalemate with the employer and she is stubbornly concerned about re-injury and felt that she needed to defend her position. Again, I do not consider this as based on mental illness, rather a pursuit of perceived fairness in the workplace. He also wrote that She reported no current physical symptoms.
By contrast, Dr William Knox provided a report dated 21 May 2014 in which he diagnosed Ms Ringshaug with Major Depressive Disorder and Adjustment Disorder with Anxiety. He attributed this to harsh circumstances in her workplace, with her being forced to undertake full-time hours in either of two work spheres, either of which alone will subject her to the risk of further and serious distress and disability. He considered her condition to be outside the boundaries of normal mental functioning and behaviour. He also said that her psychiatric disorders arose from the March 2013 confrontation with Ms White. He opined:
Workplace managers and their agents unfortunately continue to significantly under appreciate the serious risks of chronic physical and mental disability arising out of both RSI and harsh, bullying management.
In a further report of 2 June 2015, Dr Knox considered Ms Ringshaug’s mental health problems had arisen secondarily to her physical health problems, as well as the unsupportive and harsh workplace environment that has placed [her] under considerable duress. He found that her reduced work capacity is both on account of her chronic right arm pain condition and her mood disorders. He thought her condition to be almost certainly permanents [sic].
Dr Garth Eaton, an occupational physician, examined Ms Ringshaug on 24 June 2014. In his report of that date he found that she was suffering from Work place stress and anxiety and probably depression, in addition to Occupational overuse syndrome/cervicobrachial pain disorder. He said that the workplace situation has significantly contributed to the development of these symptoms. He recommended a resolution of workplace issues regarding future unemployment and rosters, and said that her prognosis was guarded as her pain condition has been further aggravated by workplace factors and issues, associated symptoms of stress, anxiety and depression. He thought there was a reasonable expectation that [the] condition could improve if the workplace situation was resolved and Ms Ringshaug was able to work part time in the office and part time as a carer in a group house. In a supplementary report of 9 August 2014, Dr Eaton expressed the opinion that, on the balance of probabilities, Ms Ringshaug’s blood pressure had been elevated more severely as a result of the stress and anxiety she reported in the workplace.
Dr Phillip Vecchio, in turn, offered a further perspective on Ms Ringshaug’s condition. He considered that her right neck and upper limb pain was not a pathological problem, and likely represented a somatic reflection of a workplace conflict and muscular aching which everyone experiences from time to time. He stated that I do not believe for a moment that Commonwealth employment is the cause of the reported pains, and definitely not responsible for the chronicity reported or for any symptom-related absence. He stated that employment related to the condition only as a consequence of perception and related to stress associated with rostering, workplace issues and management supervision. He could not see an established excuse to work less than full time hours.
On 16 January 2015, Ms Ringshaug’s GP, Dr Low, diagnosed her as suffering from major depressive disorder and adjustment disorder with anxiety. He said that her current condition stemmed from her request for mixed duties being refused totally, specifically on 17 May 2013, and that her condition was also significantly escalated when her RSI was alleged to be non-genuine in March 2014. In his opinion, her current condition was related to her accepted claim for a neck and arm condition dating from February 2011, as well as to the lack of workplace support for mixed duties.
Dr Le Leu diagnosed Ms Ringshaug with right carpal tunnel syndrome and DeQuervain’s tenosynovitis on 26 June 2015. He opined that these conditions bore no relationship to any incident on 20 May 2013, but could relate to the perceived worsening of the physical condition in March 2014 after she returned to work full-time in December 2013 or thereabouts. They can also relate to another episode of worsening of her physical condition after September 2014… [Dr Le Leu’s emphasis]. Dr Le Leu recommended conduction studies and assessment by an orthopaedic surgeon. He attributed her periods off work, in part, to anxiety and in part to increased symptoms in the right arm. He said that Ms Ringshaug might improve psychologically and physically if she could work under a lower level of stress.
The Tribunal makes the following observations about the medical evidence.
(a)Dr Low’s evidence is compelling as to the date of injury. The observed distress he recorded at his consultation with her on 20 May 2013 strongly suggests that any ailment she may have suffered had occurred no later than this date. In support of this, her workers’ compensation claim form of 21 June 2013 answers the question What action, exposure or event happened to cause your injury or illness? with the response I was reading the email from the Senior Manager [on 17 May 2013].
(b)The weight of the medical evidence suggests that the RSI Ms Ringshaug was diagnosed with, and which Comcare accepted, in February 2011 had resolved by the end of 2012. Throughout 2012 Ms Ringshaug neither required medical treatment nor was incapacitated by the previous RSI condition. Though both Dr Le Leu and Dr Low thought that the physical condition she reported in 2014 might be a recurrence of the previously-accepted condition of 2011, the better view is that it was not. Indeed, both parties took this position at the hearing.
(c)Some weight was placed in later medical reports – and indeed Ms Ringshaug herself appeared focused on this – on a supposed recommendation from Dr Le Leu in October 2011 that Ms Ringshaug’s well-being depended on her undertaking mixed duties (i.e. part-time work in each of the ASO and DSO roles) following her experience of RSI earlier that year. It is evident, however, from his report and from his testimony that this is not what Dr Le Leu said. Dr Le Leu expressed a preference for the mixed duties model, but also indicated that return to full-time work as an ASO could be contemplated in appropriate circumstances.
(d)Dr Low readily attributed Ms Ringshaug’s hypertension to the stressful workplace conditions she reported to him. The Tribunal, on the other hand, notes that there appear to have been few – if any – tests for blood pressure by Dr Low in the five years prior to the incident of 17 May 2013. The possibility that Ms Ringshaug had high blood pressure for some time before May 2013 cannot be discounted, and the link between workplace conditions and high blood pressure/hypertension cannot therefore be assumed.
(e)Doctors Knox and Low placed considerable emphasis in their diagnoses of work-related anxiety and depression on the conditions which Ms Ringshaug herself described to them. The reports are replete with terms such as bullying, harsh treatment, lack of workplace support, and harsh, bullying management. However, the Tribunal observes that the premise for these descriptions was not well supported by the evidence. Though Ms Ringshaug’s counsel questioned the appropriateness of management decisions affecting her, no sustained evidence of bullying was advanced during the hearing. For example, Ms Ringshaug’s managers appeared as witnesses, but such allegations were not put to them. It is unclear as to whether these medical experts would have maintained their view of the work-based origins of her condition had the premise on which they gave their opinions been obviated.
Did Ms Ringshaug suffer an ailment?
The Tribunal is in little doubt that Ms Ringshaug was deeply troubled by the attitude of her supervisors in early 2013 to her request for mixed duties. She was evidently very agitated and distressed by what she saw as an unfair and discriminatory approach being taken to her health needs by her supervisors. Her distress at this state of affairs was evident in the witness box. Doctors recorded symptoms – stress, insomnia, anxiety, high blood pressure, a lack of motivation to work – which could be consistent with a psychological state falling outside the bounds of normal mental functioning and behaviour. Doctors Knox and Low had no doubt that her condition met that test; Dr Jetnikoff thought otherwise. The general formulation of what constitutes a psychological disease is found in Comcare v Mooi (1996) 69 FCR 439, where Drummond J held that it was not necessary to identify an employee’s condition with a recognised medical label, but that the employee be shown to suffer a condition that is outside the boundaries of normal mental functioning and behaviour. His Honour went on to comment:
I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1) (at 444).
However, several elements of the evidence militate against a finding that Ms Ringshaug’s condition met the Mooi test. At the time of his consultations with her on 20 and 21 May 2013, Dr Low prescribed no medication for her condition. Although he recorded a high blood pressure reading for her, there was no baseline reading to determine whether this was a recent phenomenon or a long-standing condition. He referred her to a psychologist, an option that was pursued desultorily and then abandoned. Her first psychiatric examination took place three months later, where Dr Jetnikoff determined that she was not suffering from a mental illness, but rather was stubbornly concerned about re-injury and felt that she needed to defend her position. In November 2013, Dr Low found that she does not suffer from a long term psychiatric condition, though she is predisposed to anxiety/depression.
Dr Knox’s evidence, that Ms Ringshaug suffered a psychiatric disorder of major depressive disorder and adjustment disorder with anxiety, cast her condition at its most acute, but at several points this evidence, it must be said, crossed the line between testimony and advocacy.
The psychiatric evidence on Ms Ringshaug’s mental state in May 2013 was conflicting and inconclusive. On balance, the Tribunal does not find that her condition, then or later, was of such clinical significance as to place it within the ambit of an injury or disease under the Act. Although her condition was clearly contributed to, to a significant degree, by her employment with Disability ACT, it was not a condition that is compensable. This finding applies equally to the conditions claimed for in her first and third actions.
As mentioned above, the Tribunal accepts the contention of both parties that Ms Ringshaug’s failure of her first action leads inevitably to the failure of the second action. It was common ground that the expression of pain in her right limb felt by Ms Ringshaug in March 2014 had strong psychosomatic links to the condition arising out of the incidents of early 2013.
Was there reasonable administrative action?
In the event that the Tribunal is wrong in finding that Ms Ringshaug did not suffer an ailment, it is appropriate to consider whether this condition is nonetheless excluded, under the provisions of s 5A, from the definition of injury on the basis that it was caused by reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
As already indicated, the Tribunal finds that Ms Ringshaug had suffered the condition which was the basis of her first action no later than 20 May 2013, when she consulted Dr Low complaining of stress, anxiety and insomnia. By this stage the workplace conditions she experienced had found a psychological manifestation in her. But it seems to the Tribunal that her ailment (if that is what it was) was attributable to more than simply reading Ms Blount’s email on 17 May. The physical reaction to the email is best viewed as the culmination of a series of workplace actions that impacted on Ms Ringshaug. Those actions most likely included:
(a)being informed that she could not work as both an ASO and a DSO because of a conflict of interest;
(b)the meeting of 19 March 2013, in which Ms White is said to have thrown the roster at her;
(c)communications regarding various iterations of the roster in which her preferences were not fully upheld;
(d)the meeting of 16 April 2013 with Ms Blount in relation to her future role and roster issues;
(e)the email of 15 May from Ms Blount.
It is evident that, individually or collectively, these actions constitute administrative action taken in respect of Ms Ringshaug’s employment (as much was conceded by her counsel).
The Full Federal Court in Hart v Comcare (2005) 87 ALD 341 interpreted a provision in the Act which was the predecessor of s 5A. Their Honours found that, where there are multiple causes of an employee’s condition and at least one of them fell within the statutory exclusion (then called reasonable disciplinary action), that one cause would take the condition outside the definition of a compensable injury. In that case, Ms Hart’s being afflicted by her failure to obtain promotions within the Department of Defence excluded her condition from being considered an injury, even though there were other causes which were not disciplinary in nature and therefore not excluded. The Court did not define cause; in that case, the causes of Ms Hart’s condition were discernible and discrete but in other instances causes may not be so easily separated into identifiable strands. Some further analysis of the meaning of cause was provided by the Federal Court in Martin v Comcare (2015) 148 ALD 1, analysis to which we will turn later.
For present purposes it is sufficient to consider whether the succession of actions which impacted on Ms Ringshaug in the early months of 2013, taken as a whole and being administrative action taken in respect of her employment, amounted to reasonable action taken in a reasonable manner.
Of course, no onus lies on Ms Ringshaug to demonstrate that the conduct of Disability ACT amounted to unreasonable action, or was taken in an unreasonable manner: Keane and Australian Postal Commission (1977) 1 ALD 53. Nonetheless, documents tendered prior to the hearing on her behalf contained assertions relating to management behaviour which, if proved, could rebut a claim that the employer’s administrative action was reasonable, and taken in a reasonable manner. Assertions in these documents include:
(a)At an early stage, managers were supportive of my RTW option but became very unreasonable and unapproachable
(b)I feel that I have been bullying and discriminating [sic] with unprofessional accusations from my line manager
(c)…upset my manager’s letter alleging fraud, etc
(d)Ms White threw the roster at [Ms Ringshaug] and informed her that the roster was … to prevent her from ‘picking up creamy shifts’.
(e)The only reason that Ms White required staff to be in the office by 7.00 am was so that the ‘on-call’ telephone could be diverted away from Ms White by 7.00 am when she was on call, so she could get her children ready for school because Ms White found it difficult to be on-call until 8.00 am and still get her children ready for school on time.
(f)that management had not properly taken into account Dr Le Leu’s recommendations regarding Ms Ringshaug’s medical requirements.
In the course of the hearing, however, little flesh was placed on the bones of these assertions. Significantly, most of them were not put to Ms White or Ms Blount, Ms Ringshaug’s supervisors, both of whom appeared as witnesses. Under the rule in Browne v Dunn (1893) 6 R 67, little weight should be attached to evidence not tested in this way: Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540. To the extent that certain assertions were put to these witnesses, the Tribunal takes the view that the evidence of those witnesses was generally reliable and credible.
While it appears to the Tribunal that most assertions of unreasonable behaviour against Disability ACT were vacated by Ms Ringshaug’s counsel, there was one matter on which some reliance was placed to demonstrate unreasonableness. A file note of 14 March 2013, apparently completed by Ms Heidi Winefield, an officer of Disability ACT, was tendered. It recorded a meeting of that date which both Ms White and Ms Blount attended, among others, to discuss issues related to Ms Ringshaug. The file note contained the following passages:
Sue is currently earning more than ASO3 wage by continuing to work nights + weekends in housing… All 3 managers advised that they are not happy for Sue to reduce her hours to 30 per wk in scheduling + 10 in housing as Sue had hoped – implications with qualifications etc… Pieta raised concerns with having Sue return as there may be unrest within the team…
Its contents were contrasted with an employer statement completed by Ms Blount dated 18 July 2013, which included an account of the meeting of 14 March. Counsel for Ms Ringshaug put to the Tribunal that the differences between the accounts in the employer statement and the file note were significant. The former made no reference to Ms Ringshaug’s qualifications or to unrest among other workers if she returned to mixed duties, while the latter made no reference to a conflict of interest problem. Some of the issues referred to in the file note were put to Ms White and Ms Blount in cross-examination. Neither had clear recollections of these issues being discussed, but neither ruled out the possibility that they were. Ms Winefield was not called to give evidence.
It was contended that the content of the contemporaneous file note should be preferred over that of the employer statement executed four months later, and that the file note suggests that conflict of interest considerations were not discussed at the meeting, and other matters – irrelevant or improper matters, we infer – were discussed.
Whether conflict of interest issues were discussed at the meeting of 14 March may or may not be relevant; there is ample evidence that such issues were generally in the minds of managers as they grappled with Ms Ringshaug’s return to work in early 2013. Assuming that the file note represents a more accurate summary of the 14 March meeting than the employer statement, the question that must be answered is whether the discussion of the issues shows that management’s subsequent actions were unreasonable, or were undertaken unreasonably. We do not cast this test as Did improper considerations motivate management’s subsequent actions? as we do not understand the legislation to require an examination of why management undertook certain actions, but rather what actions it undertook. The threshold for reasonable administrative action in s 5A must be measured objectively, not subjectively: Lynch and Comcare (2010) 114 ALD 394 at [107]. There may be a measure of ill-will, even malice, in the mind of an employer when dealing with a particular employee, but if the employer’s actions – assessed objectively – are balanced and proportionate in relation to that employee it is fair to assume the employer has adhered to procedural fairness at the expense of his or her personal feelings.
The Tribunal does not regard discussion on 14 March of the issues referred to in the file note as either irrelevant or improper. Though the proper construction of those issues was not traversed either in the evidence or in submissions, we regard those matters as ones that were properly within the ambit of the managers present at the meeting. In our view it would be completely appropriate for management to consider the impact certain decisions about one team member might have on the reaction or morale of other team members. The reference (presumably) to the attitude of other team members to the higher wage Ms Ringshaug was earning through her mixed duties role falls into this category.
More broadly, counsel for Ms Ringshaug argued that not being allowed to continue with mixed duties, and not being given greater opportunity to avoid 7am shifts, was unreasonable behaviour by management at Disability ACT. This was supported by the argument that management had failed to properly take into account the preference of Dr Le Leu for Ms Ringshaug to perform mixed duties (though this claim was not put to those managers who were witnesses). The counter-argument was that management was anticipating and avoiding a conflict of interest situation from arising where – in a mixed duties role – Ms Ringshaug might be both allocating shifts in group houses and working those shifts herself.
The evidence suggests that conflict of interest concerns were agitating the minds of managers at Disability ACT. Ms White in particular gave evidence of her concerns that these issues were given rise to by Ms Ringshaug undertaking a dual role as allocator of shifts and a beneficiary of shift-allocation within disability group houses. Ms White made reference to s 9 of the ACT’s Public Sector Management Act 1994. Under the heading General obligations of public employees, that section enjoins public servants to take reasonable steps to avoid real or perceived conflict of interest situations arising. It appears that these conflict of interest scenarios had been permitted to exist in the past at Disability ACT, but that there had been a shift in outlook by management such that these scenarios would no longer be tolerated.
Intrinsic to the case put by Ms Ringshaug is that these conflict of interest considerations should have been put to one side, and a return to mixed duties permitted, if only in Ms Ringshaug’s case because of her unique medical considerations. The Tribunal accepts that to do so would have been a reasonable response by management, but we do not accept the converse: that failure to do so was unreasonable. Both courses of action – enforcing a conflict of interest regime universally or relaxing it in the case of one employee – seem to us to have been reasonable options open to management. That it chose the former rather than the latter approach should not, in our view, be the basis of criticism. That this must be so can be demonstrated by a hypothetical scenario. If a worker in a group house were to claim a compensable psychiatric condition based on an unfair allocation of shifts as between workers (noting that in fact shift allocation appears to be quite a sensitive issue in the group houses), and conflict of interest situations in allocation of shifts were an element of this claim, that worker’s case would no doubt be strengthened because management had failed to deal in advance with those conflict of interest issues. Seen against such possibilities, a decision by management to rule out any conflict of interest scenarios can be seen as prudent and responsible.
Overall, the responses of management at Disability ACT to Ms Ringshaug’s employment issues appear to have been meticulous and diligent. There may have been some tension at a personal level – even a battle of wills between Ms Ringshaug and her supervisors – but this fact, if it was a fact, may have actuated a greater level of care and attention in addressing those issues. The many opportunities Ms Ringshaug was given to modify her roster may be illustrations of this.
In considering the issue of reasonable administrative action, the Tribunal’s attention was drawn to the recent decision of the Federal Court in Martin v Comcare (2015) 148 ALD 1. In that case Ms Martin suffered an adjustment disorder after a phone conversation in which she was informed both that she had failed to obtain a promotion and that she was to return to a previous position where she would be supervised by a person she believed had bullied her. The Tribunal, at first instance, apparently considered the provision of information about her failure to obtain a promotion was caught by reasonable administrative action but that the information about returning to work under the bully was not. The Tribunal had held that the latter information was a direct and foreseeable consequence of the decision not to promote her, and as such was brought in under the umbrella of reasonable administrative action. The Federal Court disagreed, saying that a common sense approach should be taken to determining what had actually been the cause of an injury and what had not.
Counsel for Ms Ringshaug, Mr Anforth, drew an analogy between Ms Martin’s fear of returning to work under a bully and Ms Ringshaug’s fear of returning to work in a role that might injure her. He argued that Martin stands for the proposition that, where there is a chain of events leading to an employee’s injury, only the last link in the chain should be assessed under s 5A for reasonable administrative action, not the penultimate or other links. He further contended that, in the present case, what psychologically injured Ms Ringshaug was not the so-called reasonable actions of management but her own fear of physical harm from returning to the ASO role full-time. As this fear was the cause of her injury, the last link in the chain, it could not be characterised as reasonable administrative action since it derived from her state of mind, not from the actions of her employer.
The Tribunal can accept Mr Anforth’s proposition that only the last link in the chain of causation should be assessed under s 5A for reasonable administrative action. That would appear to be a supportable interpretation of the decision in Martin. But the Tribunal considers the argument that Ms Ringshaug was injured not by administrative action but by her own fear to be misconceived. We regard Ms Ringshaug’s condition as having been contributed to, to a significant degree, by her employment (the test in s 5B). Indeed, we understood this to be the contention of both parties as the hearing proceeded. This is certainly the inference we took from the statement of facts and contentions filed on Ms Ringshaug’s behalf which claims, at paragraph 155, The Applicant suffered a mental injury in reaction to the above [i.e. the actions of management at Disability ACT].
In Martin the Federal Court disapproved of the Tribunal treating one outcome as the direct and foreseeable consequence of another outcome. We respectfully agree that the Court was right to find that two separate and distinct issues – though arising in the course of the same telephone call – should not be conflated. But we do not think that circumstance is replicated in the present case. Ms Ringshaug’s condition was a direct consequence of management’s actions, in a straightforward cause-and-effect sense, not in the artificial sense used by the Tribunal in Martin. To argue that Ms Ringshaug was injured by her reaction to management’s actions, and not by the actions themselves, proceeds on the basis of a logical fallacy. It is the equivalent of the child arguing that what broke his mother’s window was the cricket ball interacting with it, not his cricket bat propelling the ball in its direction.
Conclusion
For the reasons provided above, the Tribunal makes the following findings:
2014/1559
Ms Ringshaug's claimed condition of anxiety and hypertension is not an injury or disease within the meaning of the Act. In the alternative, if her condition does fall within the definition of an injury or disease, it is otherwise excluded under s 5A as it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Accordingly the Tribunal affirms Comcare’s determination of 18 February 2014 in respect of this condition.
2015/1278
Ms Ringshaug's claim for permanent impairment and non-economic loss in relation to her accepted aggravation of right upper limb overuse injury arises out of, and is dependent upon, the condition claimed for in 2014/1559 being compensable. As the Tribunal has found it is not compensable, it affirms Comcare’s determination of 24 February 2015 with respect to the second claim.
2015/1602
Ms Ringshaug’s claimed condition of secondary major depressive disorder and adjustment disorder with anxiety is not an injury or disease within the meaning of the Act. In the alternative, if her condition does fall within the definition of an injury or disease, it is otherwise excluded under s 5A as it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Accordingly the Tribunal affirms Comcare’s determination of 16 March 2015 in respect of this condition.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries ..................................[sgd]......................................
Associate
Dated 18 February 2016
Date(s) of hearing 7, 8, 9 December 2015 Counsel for the Applicant Allan Anforth Solicitors for the Applicant Capital Lawyers Respondent In person Counsel for the Respondent Andrew Dillon
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