RLDZ and Comcare (Compensation)
[2015] AATA 735
•21 September 2015
RLDZ and Comcare (Compensation) [2015] AATA 735 (21 September 2015)
Division
GENERAL DIVISION
File number
2014/4638
RLDZ
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member
Date 21 September 2015 Place Canberra Comcare’s decision on 11 July 2014 is affirmed.
...............................[sgd].........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant suffered psychological condition — whether condition an injury — whether condition the result of reasonable administrative action — applicant claims to have suffered injury during a meeting — applicant’s performance discussed at meeting — meeting was an administrative action — whether meeting conducted in a reasonable manner — decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 14
CASES
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare (2012) 128 ALD 1
Hart v Comcare (2005) 145 FCR 29
Lim and Comcare [2015] AATA 189
REASONS FOR DECISION
Dr James Popple, Senior Member
21 September 2015
Summary
I affirm Comcare’s decision to deny the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The applicant suffered a psychological condition which arose out of, or in the course of, his employment with the University of Canberra (the University). But one cause of the condition was reasonable administrative action taken in a reasonable manner by the University in respect of the applicant’s employment. Accordingly, the condition is not an injury for the purposes of s 5A of the SRC Act, and Comcare is not liable to pay compensation.
Background
“RLDZ” (the applicant) was employed by the University. On 10 December 2013, he made a claim for workers’ compensation for “major depressive disorder with co-morbid anxiety as a result of workplace stressors”. On 21 February 2014, Comcare disallowed his claim. Comcare accepted that the applicant had suffered from a “major depressive disorder, single episode”, which was contributed to, to a significant degree, by his employment with the University. But Comcare denied that it was liable to pay compensation under s 14 of the SRC Act. Comcare said that the applicant’s condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment and, therefore, was excluded from the definition of “injury” in s 5A of the SRC Act.
On 28 March 2014, the applicant requested a reconsideration of that determination. On 11 July 2014, Comcare affirmed its determination.
On 28 September 2014, the applicant applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.
Decision under review
The decision under review is Comcare’s decision on 11 July 2014 to affirm its determination that Comcare is not liable to pay compensation to the applicant.
Issue
The issue in this review is whether the applicant’s condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. If it was, it is excluded from the definition of “injury” in s 5A of the SRC Act, and Comcare is not liable to pay the applicant compensation. If it was not, Comcare may be liable to pay compensation.
Reasonable administrative action taken in a reasonable manner
Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “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”.
In Lim and Comcare, I considered the guidance in several decisions of the Federal Court about what is a reasonable administrative action, and how to decide whether such an action is taken in a reasonable manner.[1] I then summarized the principles enunciated in those decisions, noting that there was some overlap between those summary points:
[1] [2015] AATA 189 at [8]–[12].
· The following are administrative actions:
oan action with respect to the employee as employee;
oan action with respect to the employment relationship that the particular employee has with the employer; and
otaking steps under a contract of employment.
· The following are not administrative actions:
oan action with respect to the duties that an employee is employed to carry out;
odefining or delimiting or supervising the employment, job or task entrusted to an employee for them to perform;
ogiving directions to them as to how and when they are to perform it; and
omatters of general administration, management and the implementation of policy, even if they affect the employment of employees.
· Whether a reasonable administrative action was taken in a reasonable manner:
ois an objective decision;
odepends upon the facts of the case; and
ois not established solely on the basis of the impact on the employee.
· There may be more than one way of doing things “reasonably”. It does not matter that the thing could have been done more reasonably.
· If only one cause of a condition satisfies the exclusion in s 5A, the exclusion applies and the condition is not an “injury”. This is so, even if the condition had many separate causes.[2]
[2] [2015] AATA 189 at [13].
On 28 November 2013, the applicant met at the University with his manager and his manager’s manager.[3] What transpired at that meeting (the meeting) is crucial to this review. The applicant says that the meeting was a cause of his condition. Comcare concedes that it was, but says that the meeting was a reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. Therefore, Comcare says, the applicant’s condition is excluded from the definition of “injury” in s 5A of the SRC Act.
[3] For simplicity, I refer to these two people as the applicant’s manager and his manager’s manager throughout these reasons. Those titles reflect their roles in November 2013. The manager’s manager had previously been the applicant’s direct manager. After a restructure, in mid-October 2013 the manager took over that direct supervisory role, and the manager’s manager retained a supervisory role in relation to a team of people, including the applicant and his manager.
Events before the meeting
I make the findings set out in [11]–[15] below, on the balance of probabilities. These findings are based on the evidence before me including: statements made by the applicant, his manager and his manager’s manager; and evidence given at the hearing by the applicant and his manager. These findings are generally not contested.
The applicant worked in the University’s human resources (HR) area from 25 July 2012. He took what was intended to be three weeks leave after the birth of his child in June 2013. He was asked to return to work after just one week of leave because some of his colleagues had left their jobs. A restructure was announced, and there was some uncertainty (in the applicant’s mind, at least) about whether his role fit better in the HR area than in the information technology (IT) area. He was moved to the IT area, notwithstanding his concerns (which he expressed to his supervisor) that his background was in HR and not IT.
The applicant worked long hours. Because some of the University’s payroll function had been outsourced to a provider in India, he would sometimes have to work at odd hours of the morning to suit Indian working hours. The manager took up his position as the applicant’s supervisor in mid-October 2013. The manager agreed with the applicant that the applicant’s workload was more than was reasonable, and that the applicant had been given insufficient support or handover when he first moved into his position. The manager reviewed the applicant’s position description, and proposed changes to reduce the applicant’s workload. He also proposed training for the applicant, which would better equip him to perform the payroll functions of his job. The applicant planned to take leave from mid-December 2013 to mid-January 2014. His manager arranged for the applicant to work with other staff to ensure that they would be able to perform some of his duties during his absence.
The applicant had a difficult relationship with another employee of the University, working in the finance area. In October 2013, the applicant complained that he was being bullied by her. (I make no finding about whether that was the case, for reasons I give below.[4]) The applicant raised this issue with his manager, and asked for his permission to raise it with another person in the finance area. The manager asked the applicant not to do that. The applicant was disappointed that his manager did not take this issue up with the finance area on his behalf. The applicant was also disappointed that, in mid-November, his manager sent him alone to talk, about an unrelated matter, with the person he says had bullied him.
[4] See [31] below.
Some employees of the University raised with the manager their concerns about the quality of the applicant’s work, his dealings with his colleagues, and his general demeanour at work. This included his dealings with, and demeanour towards, one of the colleagues who was expected to perform some of his duties while he was on leave. On about 18 November 2013, the manager conducted a performance appraisal of the applicant. He did not raise any of these concerns with the applicant. He rated the applicant “significant”, which was the second-best rating available. He did so after having asked the applicant’s previous supervisors for their views of his performance. He took the view that he could not rate the applicant on the basis of his own experience alone as he had been the applicant’s supervisor for only a short time. The appraisal was for the preceding 12 months. The applicant would have rated himself as “outstanding”, the highest rating available.
The manager was new in the role, and wanted advice about how he should raise the performance issues with the applicant. On 27 November 2013, the manager sought advice from the University’s HR area. Acting on that advice, he arranged the meeting for the next day and prepared a “running sheet” to guide the meeting. He sent the applicant an electronic calendar invitation to the meeting, headed “catchup”. The manager intended that the meeting would be more than a mere catch-up: the running sheet was headed “Performance/conduct issues meeting with [the applicant] 28 November 2013”.[5]
[5] The applicant raises an issue about the heading of the running sheet. As explained at [22]–[24] below, nothing turns on this.
The meeting
Unusually for such cases, a recording of the meeting is available. The applicant must have suspected that the meeting would be more than a catch-up, because he used his mobile phone to make a video recording (the video) of the meeting. He did this without the knowledge of the other attendees. The video was played at the hearing. The applicant had concealed his phone in such a way that he is the only person visible in the video, though he is not fully visible throughout. The voices of all three attendees are recorded on the soundtrack of the video. Nearly all of what was said can be understood, though some of it is inaudible.
Comcare prepared a transcript (the transcript) of the video. Having watched the video, with the transcript in front of me, I note that the transcript is generally accurate, though there are some places where what was said has not been properly transcribed. Nothing turns on this: the dispute between the parties is about what happened generally at the meeting and not about precisely what was said. And I am satisfied that the transcript reflects the substance of what was said at all relevant times of the meeting.
I make the findings set out in [19]–[21] below, on the balance of probabilities. These findings are my summary of what transpired at the meeting, based on the video and the transcript. Direct quotations are taken from the transcript, though I have changed the punctuation for clarity.
The meeting started at about 2:00 pm on 28 November 2013. The applicant, his manager and his manager’s manager were all present throughout. The manager started the meeting by observing that the applicant seemed stressed. The applicant said that he was at the point of breaking down. The manager said that there were a few issues for them to discuss, and that a few complaints had been received. He started detailing those complaints. The manager’s manager interjected that they were meeting because they—she and the manager—wanted to help the applicant, and that they could see that he was stressed. After confirming that applicant was content to proceed in this way, the manager, following the running sheet, continued detailing the complaints and explaining why the reported behaviour was not acceptable. He also raised issues about some of his interactions with the applicant, and explained why he thought that the applicant should have acted differently. The applicant mostly listened, though he did make a few short points on the issues as they were raised. This part of the meeting took about 15 minutes.
The manager then made some positive comments about the applicant’s work, and noted that “I don’t want to be all negative”. He then stressed how seriously he took the complaints that had been made, and said:
I guess we wanna hear your responses, but I think we’re heading towards perhaps doing a performance management plan and that’s an instruction I’ve received.
The manager’s manager immediately added:
When we say that, we mean to agree to a contract … well, not a contract as such but actually something that’s agreed to with yourself and your supervisors saying these are the things we need to focus on. So, it’s a way of getting focus and it’s also a way of showing support as well from our side so that it works both ways to make sure you get the support you need and you get work and appropriate capacity work load because you obviously look very stressed. You are working on weekends, and that can mean that you’ve got too much work on, or it can mean that you’re not able to prioritise. So, having a performance management plan can actually help with both of those, whichever one it is.
The applicant asked whether, given the reference to a performance management plan, it would be appropriate for someone from the HR area to be at the meeting, as a support person. Both the manager’s manager and the manager said that this was “fair enough”. The manager said that they didn’t have to continue, but the applicant said that there were some things that he did want to address then, notwithstanding that he “was not prepared for that kind of a discussion”. The applicant then addressed some of the issues that had been raised. He also raised his own issues, including his concern about the capacity of one of the colleagues who it was planned would perform some of his duties while he was on leave. He detailed a problem that had arisen with a particular pay run which was, he said, the fault of that colleague. The manager’s manager said that she had not heard about that, but highlighted the importance of putting arrangements in place to ensure that the University’s pay would be properly processed during the applicant’s absence on leave. The applicant also explained how, and why, he was of the view that he was overworked. This part of the meeting took about 35 minutes.
The following exchange then took place:
Applicant: I’ve been doing everything else in my capacity and you come back with the statement, comment from performance development plan for me and you did not give me an opportunity to prepare for that. You caught me off guard.
Manager: We’re not doing a performance management plan.
Applicant: That’s what you said. You are putting a performance management plan.
Manager’s manager: It’s something that may need to be considered. But what we want to do at first is actually address all of these issues with you, and I feel it’s the right thing to do in order to help you, in order to help us. That is a path we need to take.
After further discussion, lasting about two minutes, the manager’s manager said:
Okay, so what I am going to do is find a way forward to help you to help us, okay? And I appreciate you are very angry about the situation. I would be too, because I know you are doing everything in your power and you’re still stressed and we are still not getting very far with this. So, we need to find a resolution and that’s why we wanted to speak to you today: to get your side of the story from things. In hindsight, maybe the performance management plan was a bad thing to suggest.
The applicant was upset at various times during the meeting. At this point, it is clear from the video that he was very upset. He said:
I just … this is the first ever time in my entire life that has happened to me.
After some further discussion (during which the manager and the manager’s manager each disagreed with the applicant’s characterisation of the meeting as a “performance meeting”) the meeting finished. The meeting took about 55 minutes.
The heading of the running sheet
The applicant requested a copy of the running sheet. The manager e-mailed it to him on 2 December 2013. As noted above, the copy of the running sheet provided to the Tribunal by Comcare is headed “Performance/conduct issues meeting with [the applicant] 28 November 2013”. The applicant demonstrated that, when opened using different software, the running sheet is headed “Performance improvement plan”.[6]
[6] “Performance improvement plan” is a term used in some of the documents before me. “Performance management plan” is the term that was used in the meeting, and is used in these reasons. The two terms are interchangeable.
The applicant says that someone must have changed the heading of the document before it was provided to him, leaving a vestigial heading which was displayed when the document was opened using different software. That is possible. It is also possible that the vestigial heading was due to the running sheet being copied from another similar document or template.
The manager says that he did not change the heading of the running sheet. I believe him. I have already found that the heading of the document was “Performance/conduct issues meeting with [the applicant] 28 November 2013”.[7] But I do not think that anything turns on this. The conclusions that I come to below,[8] about the intent of the manager and the manager’s manager, are consistent with the document having been given either heading.
[7] See [15] above.
[8] See [34]–[35] below.
Events after the meeting
I make the findings set out in [26]–[29] below, on the balance of probabilities. These findings are based on the evidence before me including statements and evidence given at the hearing by the applicant and his manager.
Immediately after the meeting, the applicant, the manager and the manager’s manager continued talking in another room. (The room that they had been in was required for another meeting.) The manager told the applicant that he had discussed with the HR area the possibility of a performance management plan.
In his e-mail to the applicant on 2 December 2013, the manager said:
As mentioned throughout our discussion on Thursday [28 November], this meeting was not intended to initiate the formal Performance Improvement Program. Rather it was an opportunity to give you some feedback about your recent performance, try and understand more fully the difficulties that you were having in meeting the requirements of the role, and to give you clarity around our expectations.
This of course proved to be a very stressful experience for all of us and this was not our intention. It is important to us for you to be successful and happy in your role.
The applicant went on sick leave from 29 November 2013. He has not returned to work at the University since.
In his claim for workers’ compensation, on 10 December 2013, the applicant said that his injury occurred on 28 November 2013, between 2:00 and 3:00 pm: the time of the meeting. He added:
Workplace stress over previous 5 months due to excessive work hours, no training, unrealistic expectations, bullying and harassment, told I am being put on a “Performance Improvement Plan” without any prior notice or opportunity to respond/arrange a support person from HR.
In response to the question, on the claim form, “what actually injured you, or made you ill?”, he said:
Management inaction to address my excessive workload despite repeated verbal and email requests, no training provided, bullying and harassment and the way the meeting was conducted on 28 November 2013.
Did the meeting contribute to the applicant’s condition?
The parties agree that the applicant suffered a psychological condition which arose out of, or in the course of, his employment with the University. They also agree that the meeting was one cause of the applicant’s condition: his major depressive disorder. I accept that it was. The applicant was visibly upset at the meeting. He said that “this is the first ever time in my entire life that has happened to me”. I take that to be his reaction to the possibility of being subject to a performance management plan. Indeed, at the meeting, he appears to have thought that a plan had been put in place. His claim form asserts that it had, and there was some evidence that he told a psychiatrist that it had. But it is clear from the transcript that it had not. At the hearing, the applicant agreed that no performance management plan had been put in place, and he denied that he had told the psychiatrist that it had.
There are other possible causes of the applicant’s condition. He was stressed due to overwork. He appears not to have always been given adequate support by his colleagues. He alleges that he was being bullied by an employee of the University working in the finance area. He also says—and I can accept—that he was stressed by a text message that his manager sent him on the evening of the meeting, asking whether he was able to work that evening if required. I do not need to make any findings about these other possible causes. It is enough, for the purposes of this review, that the meeting contributed, to a significant degree, to the applicant’s condition. I find that, on the balance of probabilities, it did.
Was the meeting a reasonable administrative action taken in a reasonable manner?
The applicant says that his manager called the meeting with the intention of putting a performance management plan in place. He says that the heading of the running sheet was later changed (from “Performance improvement plan” to “Performance/conduct issues …”) to hide the real reason why the meeting was called. He says that the meeting was an ambush. He points out that his manager had, only 10 days earlier, rated his performance over the preceding 12 months as “significant”. At about the same time, the manager had recognised that the applicant was overworked. The applicant says that a performance management plan was not put in place only because he broke down at the meeting. He says that a support person should have been at the meeting. For all these reasons, the applicant says, the meeting was not a reasonable administrative action by the University.
The manager says that he went into the meeting thinking that he might have to put a performance management plan in place, but only if the issues that he was concerned about could not be resolved after a period of time. He says that he never intended to put a performance management plan in place at the meeting, and never drafted one. He points out that he had been managing the applicant for only about six weeks before the meeting. He says that he had some concerns about the applicant’s performance when he conducted the performance appraisal, and that those concerns were the reason why he rated the applicant at the second-highest rather than the highest level. He says that many of the issues of concern were only raised with him in the week before the meeting, when he started planning for others to perform the applicant’s duties during the applicant’s imminent leave.
I think it is likely that, when the manager arranged the meeting, he thought that he would probably have to put a performance management plan in place. But I do not think that he anticipated putting it in place at the meeting. At the meeting, his first reference to a plan was equivocal: “I think we’re heading towards perhaps doing a performance management plan”. He added “and that’s an instruction I’ve received”. The applicant says that this shows that the manager had been instructed to put a plan in place. The manager says that the only instructions he had received were from the HR area about how he should raise performance issues with the applicant given the possibility that a plan might be put in place. I have already found that the manager did not change the heading of the running sheet.[9] But, even if he had, neither heading is inconsistent with the running sheet having been prepared for the purpose that the manager said it was: as a guide for a meeting to discuss performance issues, with the possibility—maybe even the probability—that a performance management plan would be put in place at a later date.
[9] See [24] above.
I think it is likely that the manager’s manager also thought, coming into the meeting, that a performance management plan would probably be put in place. When the manager raised the possibility of a plan, the manager’s manager explained to the applicant that it would be an agreement about “the things we need to focus on” to “make sure you get the support you need”. But, by the end of the meeting, she appears to have changed her mind about the need for a plan. About five minutes before the meeting ended, she said that a performance management plan was “something that may need to be considered” but that “what we want to do at first is actually address all of these issues with you”. A few minutes later she said that, “[i]n hindsight, maybe the performance management plan was a bad thing to suggest”. If this amounted to a change of mind—and I think it did—there are two likely reasons for that change: her hearing, for the first time, the applicant’s views about some of the issues raised (for example, the capacity of one of their colleagues, and the problem with a previous pay run); and the applicant’s obviously stressed reaction to the issues raised in the meeting.
The meeting was clearly an administrative action for the purposes of s 5A of the SRC Act. It was an action with respect to the applicant as employee and his employment relationship with the University.[10] The University (through the applicant’s manager and his manager’s manager) was taking steps under the applicant’s contract of employment by raising performance issues and the possibility of a formal performance management plan being put in place.
[10] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at 473 [30] per Gray J.
The meeting was not part of a formal performance management process.[11] I think that is what the manager and the manager’s manager meant when they both said, at the meeting, that it wasn’t a “performance meeting”.[12] Even so, the meeting was about the applicant’s performance, and the applicant was not told that before the meeting. But that does not necessarily mean that the meeting was unreasonable. The applicant was not required to respond immediately to the issues raised at the meeting, though he chose to respond to some of them. The applicant was never told that a performance management plan would be put in place, only that a plan was a possible outcome. When the applicant asked whether it would be appropriate for a support person to be at the meeting, he was told that that was “fair enough”, and the manager immediately offered to adjourn the meeting. I do not think that there was any requirement for a support person to be at the meeting.[13] It was not unreasonable that the meeting had commenced without a support person, or that it continued without one. And the applicant chose to continue without one.
[11] I do not have to make a finding about what the meeting was, but I think it likely that the meeting was a consultation for the purposes of clause D15.3 of the University of Canberra Enterprise Agreement 2013–2015. Such a consultation is not part of the procedure for dealing with “unsatisfactory performance” in clause G2.
[12] See [21] above.
[13] I can see no such requirement, for example, in the University of Canberra Enterprise Agreement 2013–2015.
Given the result of his performance appraisal only 10 days earlier, the applicant would have been surprised to learn that the meeting had been called to discuss complaints about his performance. But, the manager says (and I accept) that most of the issues that he raised at the meeting had only come to his attention in the week before the meeting. And he was concerned that some of the issues needed to be resolved before the applicant went on leave, to ensure that the University’s pay would be properly processed during his absence. In any event, the fact that an employee is surprised by issues raised at a meeting does not make that meeting unreasonable, provided that there is no pressure on the employee to respond to those issues at the time. Every issue that is raised has to be raised for a first time. I do not think it was unreasonable for the manager to have raised issues for the first time with the applicant at the meeting.
I think that the main reason that the meeting contributed, to a significant degree, to the applicant’s condition was that he was very upset by the idea of a performance management plan being put into place. I do not doubt that he was upset by this. But, whether an administrative action was taken in a reasonable manner is not established solely on the basis of the impact on the employee.[14] Even if the idea of a plan being put into place was humiliating to the applicant, that would not necessarily make the meeting unreasonable.[15]
[14] Comcare v Martinez (No 2) (2013) 212 FCR 272 at 291 [73] per Robertson J.
[15] Comcare v Martinez (No 2) (2013) 212 FCR 272 at 292 [76] per Robertson J.
It might not have been reasonable for a performance management plan to have been put in place at the meeting, without the applicant having been given time and an opportunity to respond to the issues raised. But that is not what happened. Neither the manager nor the manager’s manager intended to put a plan in place at the meeting, and neither of them thought that a plan was inevitable. The meeting was intended as an opportunity to raise performance issues with the applicant, and to hear (as the manager’s manager put it) the applicant’s “side of the story”, though there was no pressure on the applicant to give his side of the story at that time.
The meeting could have been better conducted. It could have been made clearer to the applicant earlier in the meeting that he was not expected to respond to the issues raised at that time. The possibility of a performance management plan could have been raised differently or (as the manager’s manager conceded) not at all. The meeting could have been foreshadowed as something more than a mere “catchup”. But the fact that the meeting could have been conducted more reasonably does not make it unreasonable.[16]
[16] Comcare v Martinez (No 2) (2013) 212 FCR 272 at 293 [82] per Robertson J.
In my view, having regard to all of these facts, the meeting was a reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.
Conclusion
The meeting on 28 November 2013 was an administrative action by the University. It contributed, to a significant degree, to the applicant’s major depressive disorder. But the meeting was a reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. Accordingly, his condition is excluded from the definition of “injury” in s 5A of the SRC Act. The exclusion in s 5A applies even though his condition had other causes.[17]
[17] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at 472 [24] per Gray J, citing Hart v Comcare (2005) 145 FCR 29 at 33 [21]–[23] per Branson, Conti and Allsop JJ. See also Drenth v Comcare (2012) 128 ALD 1 at 7 [29] per Rares, McKerracher and Murphy JJ.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple .................................[sgd].......................................
Associate
Dated 21 September 2015
Date of hearing 24 August 2015 Applicant In person Counsel for the Respondent Mr Andrew Dillon Solicitors for the Respondent Australian Government Solicitor
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