SANDS and COMCARE
[2011] AATA 710
•14 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 710
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/1209
)
GENERAL ADMINISTRATIVE DIVISION )
Re JANE AMANDA SANDS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date14 October 2011
PlaceCanberra
Decision The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for Ms Sands’s injury.
.....................[sgd].........................
Professor RM Creyke, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – claim for psychological condition – condition was contributed to, to a significant degree by employment – exclusionary provisions – no wilful and false previous representation – whether injury suffered as a result of reasonable administrative action – formal investigation and suspension – application of collective agreement – gathering of sufficient information – denial of natural justice – administrative action not reasonable – decision under review set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A 5B, 7(4), 7(7) and 14
Briginshaw v Briginshaw (1938) 60 CLR 336
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Comcare v Chenhall (1992) 109 ALR 361
Comcare v Mooi (1996) 69 FCR 439
Comcare v Porter (1996) 70 FCR 139
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Our Town FM Pty ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Perrett v Commissioner for Superannuation (1991) 29 FCR 581
R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Lynch and Comcare (2010) 114 ALD 394
Re Radulovic and Comcare (2010) 120 ALD 311
SZFDE v Minister for Immigration and Citizenship (2007)_232 CLR 189
REASONS FOR DECISION
1.Ms Jane Sands made a claim for compensation for anxiety, depression and an adjustment disorder on 24 June 2009 said to be due to the behaviour and procedures adopted by her senior manager in the ACT Department of Disability, Housing and Community Services (Agency).
2.The application was rejected by Comcare on 10 November 2009, a decision upheld in a reviewable decision on 11 March 2010. On 29 March 2010, Ms Sands sought further review by the Tribunal.
Issues
3.The issues are:
· Has Ms Sands suffered a disease being a psychological ailment under section 4(1) of the Act?
· If so, what was the date of the injury?
· If so, was any psychological ailment suffered by Ms Sands contributed to, to a significant degree, by her employment with the Agency?
· Is Ms Sands’ condition excluded from the definition of injury by virtue of section 7(7) of the Act?
· Is Ms Sands’ condition excluded from the definition of injury because it was due to ‘reasonable administrative action’ on the part of the Agency?
· Is Ms Sands entitled to compensation under section 14 of the Act?
Legislation
4.The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The relevant provisions follow.
4 Interpretation
(1) In this Act, unless the contrary intention appears …
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
5A Definition of injury
(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 …
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.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; …
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.
7 Provisions relating to diseases
7 (4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first. …
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
14 Compensation for injuries
14 (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.
Background
5.The matters which precipitated the events affecting Ms Sands involved the administrative process to allocate public housing to a relative of an employee of the Agency; and the processing of a mutual tenancy exchange for two Agency employees. Ms Sands was involved in both processes and the allegation was that she improperly expedited the first; and improperly allocated the task of determining the second.
6.The matters were formally investigated and in the result the finding was that Ms Sands failed ‘to brief management appropriately about the two cases’ and ‘failed to take proper managerial responsibilities into account by giving undue influence, emphasis on welfare or confidentiality issues in circumstances where applicants had better access to decision–makers because of their staff or related status’. However, Ms Sands was only subject to informal counselling and she was reinstated in her employment with the Agency.
7.The report also found that Ms Sands did not breach ‘any statutory, policy or procedural matters including the obligations under section 9 of the PSM’ (Public Sector Management Act 1994 (ACT)). In particular the report noted that ‘the actions of Ms Sands can not … be proven to be untoward expedition’. The report also found that there is ‘no indication that Ms Sands was involved in the decision to allocate a three bedroom house’, and that there was ‘no evidence that Ms Sands … attempted to influence other staff to achieve benefits’ for the applicant for priority housing. The findings similarly rejected the allegations of improper influence or expedition by Ms Sands in relation to the mutual exchange process
8.The facts in the following material have substantially been agreed by both parties. Where the respondent has expressed a reservation on the grounds that there is no corroborative evidence in support, the information will appear as an assertion by Ms Sands.
9.Ms Sands was born in the United Kingdom in 1965. She moved to Australia as a young child, and now resides in the Australian Capital Territory.
10.Ms Sands was first employed by the Agency on a part-time basis in November 2001 and worked as a housing manager at the Agency’s shopfront in Tuggeranong. She became a full-time employee in October 2002 as a housing manager specialist (later re-titled a client support coordinator).
11.In May 2007 Ms Sands was temporarily transferred to the position of Gateway Services manager, that is, the person responsible for applications for, and allocations of, public rental housing assistance to ACT residents. In April 2008, she applied for and was subsequently promoted into the position.
Application of family member
12.In November 2008 while shopping in Tuggeranong, Ms Sands had a conversation with another employee of the Agency. In the course of that conversation, the employee disclosed that her family member had moved in with her following the breakdown of the family member’s relationship due to domestic violence. Ms Sands offered to help by providing information in relation to support agencies and housing options.
13.On or about the day after this conversation, Ms Sands informed Ms Jancye Winter, Senior Manager, Gateway and Operational Services and her immediate supervisor, of the conversation.
14.When the employee returned to work, Ms Sands advised her about the relevant services and provided her with the application forms for public housing rental assistance. Ms Sands told the employee that if her family member lodged an application for assistance, staff would not be permitted to discuss the application with the employee.
15.Ms Sands also told her that in accordance with the practice of dealing with applications for staff and their relatives, the application should not be submitted over the counter as it needed to be assessed by an Agency employee at the level of Administrative Service Officer Level 6 (ASO6) or above. Ms Sands offered to receive the application provided it was in a sealed envelope that Ms Sands could then allocate for assessment to a Gateway Services team leader at the required level.
16.At the next weekly briefing meeting, Ms Sands said she had a conversation with Ms Winter disclosing her second conversation with the employee.
17.Around 21 November 2008, the employee gave Ms Sands, in a sealed envelope as recommended, an application for housing assistance for her family member (hereafter the family member application). Ms Sands then gave the sealed envelope to either Ms Emma Taber, or Ms Rochelle Bessey - she said she could not recall which - both team leaders within Gateway Services, for assessment.
18.At the next weekly briefing meeting Ms Sands had another conversation with Ms Winter. Ms Sands told Ms Winter that she had received the application and had passed it on as described.
19.In the week leading up to Christmas 2008, Ms Taber informed Ms Sands that she had assessed the application and that it appeared the family member’s income was over the threshold for consideration for housing assistance. Ms Sands suggested that Ms Taber contact the person and ask for further information about her employment. Given the nature of the family member’s employment, her income could be subject to seasonal fluctuation. If that was the case that could be a ground for the exercise of discretion, allowing the family member to become eligible for housing assistance.
20.Ms Sands was on leave from 24 December 2008 until 19 January 2009. In her absence, Mr Craig Spencer, team leader, Gateway Services acted in Ms Sands’s position. On 9 January 2009, Mr Spencer exercised the income discretion in the family member’s favour. On 13 January 2009, that application was approved for public housing in the high needs category. There are three categories for allocating public rental housing assistance: standard, high needs, and priority. Some applications in the high needs category are considered by a multi-disciplinary panel (MDP) for priority allocation status. The MDP comprised staff of the Agency together with representatives of stakeholders outside the Agency.
21.Ms Sands said she did not recall the application being discussed with her after her return from leave. In late January 2009, Ms Sands had a conversation with Ms Winter in relation to their joint upcoming periods of leave. Ms Winter said a handover would not be required. Ms Sands was on leave from 30 January 2009 to 6 February 2009. Ms Bessey acted in Ms Sands’s position in her absence. Ms Winter took leave from 9 February 2009 to 23 February 2009 and Mr Andrew Roylance, a senior manager who had just recently moved to Gateway Services, acted in her position.
22.After Ms Sands returned from leave on 9 February 2009, she had a handover session with Ms Bessey. Ms Sands said no mention was made at that session of the family member application.
23.Early in the week beginning Monday, 16 February 2009, Ms Taber approached Ms Sands to discuss the application. During that conversation Ms Taber told Ms Sands that income discretion had been applied by Mr Spencer and the application had been approved for the high needs housing list. Ms Taber said she had written a report and wanted to submit it for priority consideration by the MDP.
24.The following day, Ms Sands was approached by Ms Taber to request support in relation to staff issues with another employee, Ms Glenys Chapman. Ms Sands then had a conversation with Ms Taber and Ms Chapman in an attempt to deal with the issue and counselled Ms Chapman. The referral of the family member application to the MDP was raised, and Ms Sands asked Ms Chapman to leave the MDP meeting when it was heard, as it was an application dealing with a family member of an employee and Ms Chapman did not have a clearance for discussion of such cases.
25.Subsequently, according to Ms Sands, she was approached by Ms Chapman who said she was ‘pissed off’ and said to Ms Sands that she should ‘watch her back’. Ms Chapman denies making these comments. Ms Sands said she informed Ms Taber about the conversation and asked Ms Taber to supervise Ms Chapman’s conduct.
26.Ms Sands later had a discussion with Mr Roylance in relation to the forthcoming MDP meeting. Mr Roylance was acting in Ms Winter’s position and was chairing the MDP meeting. Ms Sands informed him that a family member application would be considered and that, in accordance with Agency policy, Ms Chapman should not attend during that item since she did not have the requisite clearance.
27.The meeting of the five-member MDP was held on Thursday, 19 February 2009. As it was his first occasion of chairing the MDP, Ms Winter had asked Ms Sands to support Mr Roylance by attending the meeting with him. At the meeting Ms Sands explained the background of the family member application and the reason for the exercise of the discretion in relation to the income limit. There is some dispute as to the extent of Ms Sands’s knowledge of the file and whether she ‘advocated’ on the family member’s behalf. Ms Taber was present to explain the family member application if needed, but said she did not participate in the discussion. The application for priority housing assistance by the family member was approved.
28.On 20 February 2009, Ms Taber told Ms Sands that the family member had accepted the offer of a three bedroom house in the Tuggeranong region and, on 23 February 2009, that she had signed the paperwork.
Mutual housing exchange application
29.According to Ms Sands, in about mid-February 2009, an employee of the Agency, who was also a tenant in public housing, approached her for advice about public housing transfer options. The employee had previously worked with Ms Sands in client services. Ms Sands advised her about the available options. The employee explained she did not want her circumstances on her Agency file and she would consider the options discussed.
30.Ms Sands said that a couple of days later, the employee told Ms Sands that she wished to apply for a mutual exchange housing transfer. This meant that with the agreement of another public rental tenant, the employee would ‘swap’ rental properties. Ms Sands informed the employee that sealed envelopes should be given to a team leader for assessment and the application would need to be discussed with Mr Roylance as Acting Senior Manager, Gateway Services. Subsequently, the employee gave Ms Sands a sealed envelope containing the applications.
31.Ms Sands informed Mr Roylance about the employee’s mutual exchange application and suggested a single team leader be allocated to conduct the two necessary inspections. Ms Sands said Mr Roylance agreed. Ms Sands gave the application to Ms Taber for assessment and, according to Ms Sands, the procedures suggested were followed by Ms Taber.
32.Ms Sands then claims she asked Ms Kellie Laggner, a team leader, to carry out inspections of the properties to be exchanged. She said she also referred to the confidentiality requirements, and reminded Ms Laggner that she needed to keep Mr Roylance informed about developments. In a file note dated 23 March 2009, and amended on 2 April 2009, Ms Laggner said that Ms Sands told her she was not to speak to anyone other than Mr Roylance and Ms Sands about the exchange as no-one else could be trusted.
33.The inspections went ahead in the week commencing 2 March 2009 and according to Ms Sands, about three days later, she and Ms Taber were told by Ms Laggner that the properties were ready for the exchange. On about 10 March 2009, with the assistance of another staff member, Ms Taber finalised the paperwork for the exchange.
34.On about 12 March 2009, Ms Winter had a meeting with Ms Sands and Ms Taber and told them that she and Ms Bessey had agreed that the family member application was not to be submitted to the MDP. Ms Sands said she was not aware of this. Ms Winter suggested that the application had been processed and allocated quickly and the family member had been granted a property beyond her entitlement. Ms Taber explained why the family member application had been referred to the MDP and why a bedroom upgrade had been made.
35.In the course of this conversation Ms Winter asked the pair why no brief had been submitted to the Director to inform him of the application. Ms Sands said there was no policy or procedure which entailed that step. Ms Sands offered to provide a brief in relation to the family member application and also raised the employee’s application for mutual exchange, offering to provide a brief on this matter as well. Ms Winter later asked Ms Sands and Ms Taber to prepare briefs on both applications for the Director. Ms Winter’s evidence was that this was the first she had heard about the mutual exchange application. After the meeting Ms Sands asked Ms Taber to do a file note in relation to her reasons for the allocation of the three bedroom property to the family member.
36.On 16 March 2009, Ms Winter had a further meeting with Ms Sands, Ms Taber and Mr Roylance and expressed her concern about the mutual exchange arrangements. She said briefs should have been prepared for the Director and she claimed proper procedures had not been followed. Ms Sands reiterated her belief that proper procedures had been followed.
37.Later that afternoon Ms Sands and Ms Winter had a further discussion and Ms Winter confirmed that Mr David Matthews, Director of Housing ACT, had received advice in respect of the mutual exchange applications and had asked that Ms Sands and Ms Taber prepare separate briefs to him in relation to both. Ms Sands claimed that during this meeting she felt dizzy and very distressed and felt pressured by Ms Winter to admit she had done something wrong. Ms Winter denied any pressure was exerted.
38.Ms Sands then met with Mr Roylance and he said he felt partly responsible as supervisor during the time. According to Ms Sands he said ‘he thought Ms Winter’s concern was about how the process made her look’.
39.On 25 March 2009, Ms Sands was told she was required to meet with Mr Matthews at 12.30 that day. While waiting to go in to the meeting, according to Ms Sands, Ms Sheehan’s personal assistant asked if Ms Sands should be ‘frisked for weapons’ and then laughed. Ms Maureen Sheehan is Executive Director of the Agency and was consulted by Mr Matthews prior to Ms Sands’s suspension.
40.The meeting was attended by Mr Matthews, Ms Winter and Ms Marie Mannion, Senior Manager, Organisational Services. Mr Matthews informed Ms Sands that she was being suspended with pay, effective immediately. Ms Sands was given a letter but says she does not clearly remember the meeting as she says she was shocked and confused on hearing of her suspension. Ms Sands said that she was not told in advance the purpose of the meeting, nor invited to have a support person present.
41.The letter, dated 25 March 2009, said that the suspension was in response to:
…allegations … that you improperly expedited [the family member’s] application without sufficient justification and facilitated the allocation of a three bedroom house without appropriate consideration of the claims of other applicants. There is a further allegation that you improperly influenced other staff in order to achieve the above benefits for [the family member].
42.The letter also informed Ms Sands that if she was found guilty of the allegations that she may have breached section 9 of the Public Sector Management Act 1994 (ACT). The suspension was to last until 20 April and Ms Sands was given an opportunity to provide a written statement in relation to the allegations. The letter also directed Ms Sands not to ‘discuss this matter with any other employee or client of the department’.
43.After the meeting Ms Sands was accompanied to her office by Ms Winter where she packed up some of her belongings. According to Ms Winter, she offered to help Ms Sands return to her office during which Ms Sands apologised to Ms Winter and said ‘I’m so sorry I’ve brought this embarrassment on you’. Ms Winter said when they got to Ms Sands office she went in with her and shut the door.
44.According to Ms Sands, Ms Winter accompanied her to her office where she was required to hand in her pass, keys and mobile phone. Ms Winter told her that her access to the Agency system would be cut off, that Ms Sands was to put an ‘out of office’ message on her phone and email, and was to give Ms Winter her computer and telephone passwords, which she did.
45.Ms Sands said she told Ms Winter that she had personal contact numbers and messages on her mobile phone and needed to delete them. According to Ms Sands, Ms Winter said she should hand over the phone for another staff member to delete the information and messages. According to Ms Winter she asked whether Ms Sands would like someone to delete the personal messages and numbers and Ms Sands agreed. Ms Winter denies asking Ms Sands for her computer password.
46.Ms Sands said she ‘felt disempowered and unsure of any of her rights’ and that she ‘could not think straight, that her vision was blurry and that she could not stop shaking’.
47.Ms Winter then left the room to get a box for some of Ms Sands’s belongings and, according to Ms Sands, told her she was locking the door as Ms Sands could not be trusted not to talk to other staff. She was also alleged by Ms Sands to have said, if she did so, her employment would be terminated. Ms Winter denies this.
48.Ms Winter says she asked if she wanted her to lock the door on her way out so no-one would bother her and Ms Sands had said ‘Yes’ as she did not want to see anyone. Ms Winter returned minutes later. According to Ms Sands Ms Winter asked if there was anything she wished to delete from her computer and watched as Ms Sands set up her out of office message and otherwise logged off. According to Ms Winter, she had told Ms Sands to take as much time as she wanted.
49.According to Ms Sands, Ms Winter then asked Ms Sands to do a hand over of her current matters, which she did. Ms Winter said she only asked her to inform her of any ‘urgent matters’. Ms Sands also asserted that Ms Winter ‘was oblivious to her feelings and state despite the fact that she was obviously crying, shaking and confused’. Ms Sands also asserted that Ms Winter said that during her suspension she was not permitted to return to work or talk to staff or she would be immediately terminated, an assertion Ms Winter also denies. Ms Winter also said she was aware of Ms Sands’s distress and did what she could to assist her.
50.Ms Winter said she asked Ms Sands if she would like her to telephone Ms Sands’s husband to pick her up. Ms Sands declined saying that as she could not return to work she could not pick up her car. Ms Sands asked Ms Winter whether she should take all her personal belongings from her office and Ms Winter said she did not think so.
51.Ms Sands says that Ms Winter escorted her from the building directly past all the staff in the office, foyer area and car park of the building. Some staff attempted to approach Ms Sands but, according to Ms Sands she put up her hand and put her head down without talking to them as she understood from Ms Winter’s directions that if she spoke to anyone, her employment would be terminated immediately.
52.Ms Winter denies that she escorted Ms Sands past staff. She says there are two entrances to the building, a shorter route past the client entrance and a longer back route past the staff desks. She says she offered to take Ms Sands the shorter route which she declined. Ms Winter said she followed Ms Sands out because she was concerned about her. Ms Winter said when she got to the outer door that Ms Sands gave her a hug and said ‘I’m so very sorry’. She said she, too, was upset and told Ms Sands to take care of herself. Ms Sands said in her statement that she declined to go out the shorter route as she did not want clients to see her distress.
53.Ms Sands said when she got home she was very distressed, could not stop crying and had difficulty speaking or communicating. In the following period she said she felt physically unwell, could not eat, or sleep, frequently felt dizzy, extremely anxious and generally depressed and suffered from migraines.
54.On the days following the suspension she said she received telephone calls from staff concerned about her suspension and having seen her being escorted from the building. Ms Sands said she explained she could not talk about it or she would be terminated.
55.After her suspension Ms Sands learned about an email between various former Agency employees about her suspension. Ms Sands was extremely distressed by this as it indicated there was gossip and she felt her privacy had been breached.
56.Ms Sands said that following her suspension she stayed at home with her blinds drawn, avoided going out and was frightened she might see people who knew about her suspension. Shortly after the suspension, Ms Sands attended Davidson Trahaire Corpsych to discuss her situation and get counselling and support. The notes by Ms McDonald of Corpsych for the visit on 31 March 2009 recorded the events of 25 March and Ms Sands’s ‘story of pressures, changes in management’, and Ms Sands recounting being ‘marched through busy building at lunchtime’ with resultant ‘humiliation, hurt, devastation, future career in tatters’.
57.On 20 April 2009, Ms Sands received a letter from Mr Matthews informing her that her suspension from the Agency was being extended. On 1 May 2009 she received another letter saying the inquiry was being extended to include the mutual exchange matter. The letter also informed Ms Sands that an independent investigator had been appointed and she would be interviewed in connection with the investigation. On 12 May 2009, Ms Sands was interviewed by Mr David Callan as part of the investigations into the allegations of misconduct.
58.On 20 May 2009 she received a letter from Mr Matthews extending her suspension for a further 30 days, but advising that he expected the report of the investigation ‘in the near future’.
59.On 5 June 2009, Ms Sands had a letter from Mr Matthews advising her that he had received the draft report and would write separately to her when the report was finalised. In the meantime, he said her suspension was lifted, effective 15 June 2009, when she was asked to return to work. Ms Sands did not return to work on this date.
60.On 1 July 2009 Ms Sands lodged her claim for worker’s compensation, dated 24 June 2009, which was acknowledged on 18 August 2009. She stated that she was ‘injured’ or first noticed she was ill, on ‘25 March 2009 (approx. some time prior to this date Dec 08 – Mar 09)’, and she first sought medical treatment for the injury on ‘1.4.09’. She claimed that her injury was due to bullying as described in the Comcare guidelines.
61.On 11 August 2009, Ms Sands received a letter from the Agency informing her that the investigation into her conduct had been completed and it had been found that the allegations against her could not be proved. However, in his letter to her, Mr Matthews said the report found ‘you failed to brief management appropriately about the two cases involved in the investigation and gave undue emphasis to the handling of the associated welfare and confidentiality issues’.
62.At the same time, the letter noted ‘I acknowledge that there is currently no formal requirement to provide a briefing to myself; however I expect that as an experienced manager holding these key responsibilities, you would take the appropriate steps in these circumstances to keep the Executive fully informed of all actions in cases of this nature’. As a result of these findings Mr Matthews informally counselled Ms Sands, in particular with reference to ‘the appropriate handling of welfare and confidentiality issues’. The counselling was informal and was not undertaken in accordance with the disciplinary procedures in the collective agreement.
Processes surrounding suspension
63.In a letter to Comcare from the Agency dated 15 September 2009 concerning Ms Sands’s claim for compensation, the letter noted:
Ms Sands had not been advised of the nature of the meeting [on 25 March 2009] as the Chief Executive believed that the matter was of a significant and serious nature and that by informing Ms Sands of the nature of the meeting, this could have prejudiced the matter as there were other employees implicated in the matters that lead to Ms Sands’ suspension.
The Collective Agreement allows the Chief Executive to suspend an employee without first informing them of the reasons for the proposed suspension and then give the employee the opportunity to be heard after the suspension. Ms Sands has not made any submissions in relation to her suspension.
64.The letter also noted:
It is not policy, practice or procedure to offer a support person in circumstances such as these. Ms Sands was however advised of the availability of Employment Assistance Provider (EAP) services, advised of her rights, an offer was made to contact Ms Sands’ husband, and when she rejected this, a further offer was made to organise a taxi to take Ms Sands home, which Ms Sands also rejected. Ms Sands is entitled to a support person during the investigation of these allegations.
65.Ms Chelsea Drewsen, Ms Sands’s rehabilitation case manager, noted in a minute of 17 September 2009, that following discussions with Ms Mannion, she had been advised that there ‘were no notes/minutes from the meeting [on 25 March 2009] as this is departmental processes’.
66.Ms Sands commenced a graduated return to work with another branch of the Agency on 15 February 2010.
Medical evidence
67.On 1 April 2009, Ms Sands went to her general practitioner, Dr Renata Kruger, and was diagnosed with post traumatic stress disorder (PTSD), severe anxiety and severe depression. Dr Kruger suggested Ms Sands consider taking anti-depressants, but Ms Sands did not agree until her next visit on 21 April 2009. Comcare denies the diagnosis of PTSD. Ms Sands was referred to Ms Sue Driscoll, a psychologist.
68.On 4 May 2009, Ms Sands attended Ms Driscoll who diagnosed her as suffering from adjustment disorder and mixed anxiety and depression. Ms Sands initially saw Ms Driscoll on a weekly basis, but this reduced to fortnightly and is now monthly.
69.Ms Sands saw Dr Kruger again on 5 May 2009, 19 May 2009, and on 16 June 2009 Ms Sands was examined by Dr Kruger and found to be unfit for work to 30 June 2009. On 29 June 2009, Dr Kruger again certified Ms Sands as unfit for work to 30 August 2009. On 31 August 2009, Ms Sands was found to be unfit for work to 30 October 2009.
70.On 21 September 2009, Ms Sands was examined by Dr Graham George, consultant psychiatrist. He provided two reports, both dated 24 September 2009. He diagnosed her with major depression with anxious mood (incorporating intermittent panic attacks) and alcohol dependence/abuse.
71.Ms Sands was examined by Dr Michael Robertson, consultant psychiatrist, at Comcare’s request, on 25 September 2009, and was diagnosed with panic attacks, phobic anxiety and a likely depressive illness. He noted however that ‘it is possible that the diagnosis is, in fact, panic disorder with agoraphobia, which has emerged in the context of the workplace stressors’. These conditions emerged ‘in the course of her employment, in particular, the circumstances of her being suspended from employment’.
72.In his view Ms Sands first suffered clinically identifiable symptoms in February 2009. In his opinion, this was due to her treatment by her manager, Ms Winter, and in particular the humiliation experienced from the suspension, and the manner in which she was informed of the suspension and escorted from the office, which he said ‘appears to have been conducted in an insensitive manner leading to a loss of face’.
73.Dr Kruger, on 13 October 2009, wrote to Ms Sands to note her disagreement with the alternative diagnosis of alcohol dependence/abuse. In her letter of 9 October 2009, Ms Driscoll also disagreed with Dr George’s diagnosis of alcohol dependence/abuse. On 29 October 2009, Ms Sands was examined by Dr Kruger and found to be unfit to work from 1 November 2009 to 30 January 2010. On 9 February 2010, Ms Sands saw Dr Kruger who certified her unfit for work to 12 February 2010, but fit for modified duties from 15 February 2010 to 28 February 2010.
74.On 31 May 2010, Ms Sands was examined by Dr Patricia Jungfer, consultant psychiatrist, who confirmed that Ms Sands had developed a major depressive disorder, a panic disorder and agoraphobic condition and that ‘the behaviour at the workplace has been the causative factor in her psychiatric disorder’.
Consideration
Did Ms Sands suffer a disease being a psychological ailment such as to satisfy section 4(1) of the Act?
75.The reviewable decision concluded that Ms Sands suffered from the claimed psychological injuries, namely, ‘anxiety, depression, adjustment disorder’ and that the conditions were contributed to, to a significant degree, by Ms Sands’s employment with the Agency. However, compensation was precluded because the actions which led to her condition were considered to be ‘reasonable administrative action’.
76.Although there was some discussion as to whether Ms Sands’s claimed injury could be classified as an ‘injury simpliciter’ or a ‘disease’, that issue was not pursued. At the hearing, both parties agreed that the preponderance of the medical opinions was that Ms Sands’s condition was outside the boundaries of normal mental behaviour and functioning.
77.In light of this history, the Tribunal is satisfied of the correctness of the finding in the reviewable decision that Ms Sands’s conditions did amount to a ‘disease’ being an ‘ailment’, that is, a ‘mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’, which was ’outside the boundaries of normal mental functioning or behaviour’.[1] In other words, Ms Sands suffered a ‘disease’, being a ‘psychological ailment’, such as to satisfy section 4(1) of the Act.
[1] Comcare v Mooi (1996) 69 FCR 439 at 444.
What was the date of that injury?
78.The reviewable decision found that the date of injury was 1 April 2009, the date on which Ms Sands sought medical assistance for the condition from her general practitioner, Dr Renata Kruger. No issue was raised with this finding at the hearing and the Tribunal considers this was correctly decided.
Was any psychological ailment suffered by Ms Sands contributed to, to a significant degree, by her employment with the Agency?
79.No argument was raised at the hearing to deny that Ms Sands’s psychological injury was, to a significant degree, due to her employment. In light of the medical evidence, all of which supported such a conclusion, the Tribunal also accepts as correct this finding in the reviewable decision by the delegate.
Is Ms Sands’s condition excluded from the definition of injury by virtue of section 7(7) of the Act because Ms Sands made a ‘wilful and false representation’?
80.Counsel for Comcare included as an issue that the injury, being a disease, was not compensable because, in accordance with section 7(7), Ms Sands had ‘made a wilful and false representation that she did not suffer, or had not previously suffered, from’ the disease which is the subject of Ms Sands’s claim.
81.To meet the ‘wilful and false’ test in section 7(7) it must be established that the representation was objectively false and made without any belief that it is true.[2]
[2] Comcare v Porter (1996) 70 FCR 139 at 149-150
82.At the hearing, Ms Sands was asked in cross-examination whether she had previously had a psychological condition, and if so, why had she not declared it on her application form for workers’ compensation.
83.In response she noted that in 1997 following her marriage break-up, she had experienced a period of about three months in which she was ‘down’. She had consulted her doctor and had been prescribed an anti-depressant, but she said she only took it for about six weeks, and then threw the remainder in the bin and enrolled instead in a gym.
84.In light of the evidence about the former psychological condition, Counsel for Comcare had called into question Ms Sands’s responses to two documents: the Health Status Assessment form Ms Sands completed in 2001 as part of her pre-employment checks; and her workers’ compensation claim form. In the first document when asked ‘do you or have you ever had: 24. nervous or mental condition?’ and ‘25. anxiety or stress reaction or depression?’ Ms Sands had answered ‘No’ to the first, and had not responded to the second. The Tribunal notes that Ms Sands had also not responded at all to ‘7. Have you ever had an abnormal result from a blood test?’ and ‘Do you or have you ever had: 34. Any form of cancer?’ There are no notes from the examining doctor on these gaps.
85.In response to questions at the hearing about these gaps, Ms Sands said of her denial that she had ever suffered a ‘nervous or mental condition’ that the ‘depression’ she suffered in 1997 for a period of no more than three months when she was ‘down’ was a ‘reactive depression’, not a ‘nervous or mental condition’. She said the symptoms she experienced 12 years earlier were unlike those she has been suffering since the events on 25 March 2009 which are classified as clinical depression. They were different conditions and she believed she had correctly responded to the question.
86.As for the gaps in responses, Ms Sands said at the assessment she had discussed these questions with the examining doctor since in each case she was uncertain about what to answer given certain conditions she had suffered. The form suggests that the person filling in the form consult the examining doctor if unsure. The Tribunal notes that the doctor made notes on each of the questions to which Ms Sands had ticked ‘Yes’ but not on those where there was no response. That suggests, since he carefully commented on each of the questions about medical conditions to which she answered ‘Yes,’ that he was not concerned about the few gaps in the answers.
87.Ms Sands had also ticked ‘No’ in answer to questions 16 and 17 in the claim form for workers’ compensation. Those questions ask respectively ‘16. Have you ever had a similar symptom, injury or illness, work-related or otherwise’ and ‘17. Have you ever received medical treatment for a similar injury or illness?’
88.The Tribunal is unable to be satisfied that Ms Sands made objectively false statements, without any belief in their truth in relation to the questions listed. The Tribunal so finds taking into account the following: Ms Sands’s explanation that she did not consider the condition she suffered after March 2009, namely, clinical depression, was the same as, or similar to, the short-term reactive depression she had suffered 12 years earlier; her accurate and negative responses to other questions in the assessment; the absence of any comment by the assessing doctor on the gaps in the responses given he had made careful comments on all the questions to which she had answered ‘Yes’; and the fact that she had not concealed her earlier condition from her psychologist, Ms Driscoll. The Tribunal considers Ms Sands’s failure to mention her short-term depression and even shorter term of taking anti-depressants to the psychiatrists who had assessed her in relation to the claim is outweighed by these other disclosures and understandings.
89.The Tribunal also has no reason to doubt the veracity of Ms Sands’s evidence about her condition in 1997. From the description, Ms Sands’s reaction was a normal response from someone going through a marriage break-up. The temporary condition she then experienced was, on the evidence, different in quality, longevity and nature from the psychological conditions which she has experienced since March 2009 and from which she is still, to an extent, trying to recover two years’ later. In those circumstances, the Tribunal does not find that Ms Sands made an objectively false statement.
90.Nor, given the dissimilarity in the conditions, did Ms Sands make a wilful … representation’ of the kind required by section 7(7) of the Act. Even if it could be argued that she deliberately concealed her earlier condition in order not to jeopardise her workers’ compensation claim, there is insufficient evidence, given Ms Sands’s genuinely held beliefs about the different nature of the two forms of depression, for the Tribunal to be satisfied that she intentionally concealed the occurrence of the earlier depression for that purpose. In any event since both ‘wilful’ and ‘false’ representations must be found for the purpose of the section, and the Tribunal is not satisfied that the representation was ‘false’, the disqualifying criteria in section 7(7) are not met.
Is Ms Sands’s condition excluded from the definition of injury because it was due to ‘reasonable administrative action’ on the part of the Agency?
91.The principal focus in this application is on this issue. Although the administrative actions covered by the exclusionary provisions in section 5A(2) are not exhaustive, they are also not intended to be at large.[3] Accordingly it is necessary for Comcare to specify the nature of the actions on which it is relying, in order that the reasonableness of the actions can be assessed.[4] The parties eventually agreed at the hearing that the principal administrative action relied on by Comcare were the decisions to initiate an investigation and to suspend Ms Sands, made on 25 March 2009. In order to assess whether those actions were reasonable, matters ‘in connection with’[5] the suspension action are also relevant.[6]
[3] Re Radulovic and Comcare (2010) 120 ALD 311 at 325.
[4] Comcare v Chenhall (1992) 109 ALR 361 at 369.
[5] Section 5A(2)(e) of the Act.
[6] Section 5A(2)(c) of the Act.
92.The expression ‘in connection with’ has been interpreted as having a wide connotation,[7] and not necessarily to require either a causal[8] or a temporal relationship.[9] However, the ambit of the expression varies between statutes and must be interpreted in context, taking into account the object or purpose of the statutory provision in which the expression appears.[10] In the context of the Act it can be assumed that there is an intimate connection between what employment action contributed to the injury and the reasonable administrative action under section 5A, since both must be causally related to the injury.
[7] Perrett v Commissioner for Superannuation(1991) 29 FCR 581; Burswood Management Ltd v Attorney-General (Cth)(1990) 23 FCR 144; Collector of Customs v Pozzolanic Enterprises Pty Ltd(1993) 43 FCR 280.
[8] Perrett v Commissioner for Superannuation(1991) 29 FCR 581
[9] Our Town FM Pty ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 480 per Wilcox J.
[10] Burswood Management Ltd v Attorney-General (Cth)(1990) 23 FCR 144 at 146.
93.Section 5A(2) specifies examples of reasonable administrative actions as appraisal, counselling, suspension, disciplinary action, and failure to obtain a promotion, reclassification, transfer or benefit, or retention of a benefit by an employee. These are the matters likely to trigger an employee’s distress, and hence to cause an injury. However, at the same time, they are the actions which will be the subject of the exclusion, so it follows that the reasonable administrative action should be subject to the same standards as apply to the causation of the initial injury, That means whether the action had a ‘significant’ role in the causation of the injury is also the standard which should be applied to test whether the administrative action contributed to the psychological injury. Equally, the same date of injury should apply to reasonable administrative action as it does to the causal link with employment.
94.Counsel for Comcare conceded that the manner in which Ms Sands was removed from the building following the meeting at which she was suspended was ‘in connection with’ her suspension.[11] The Tribunal accepts the correctness of this concession. Whether her treatment by the Agency while waiting for the outcome in the suspension decision is also ‘in connection with’ her suspension was ultimately not canvassed by the parties. Nonetheless, if as the Tribunal has found, the date of injury was 1 April 2009, a date some six days after the suspension decision, administrative actions taken during that week can also be considered in relation to section 5A(2).
[11] Transcript, 8 August 2011, 9.
95.Whether actions are reasonable must be tested against general and specific standards relating to the activity in question. In general, for an administrative action to be reasonable it must be lawful, and on an objective basis must be fair, moderate, sound, and not expecting too much. In other words, the action must be within the margin of tolerance of the relevant specific standards for the particular action.[12] In relation to disciplinary action such as suspension, the public sector standards provide the specific standards against which the reasonableness of the administrative action is to be measured.[13]
[12] Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [22]; Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at 128per French J in the majority.
[13] Comcare v Chenhall (1992) 109 ALR 361 at 369; Re Lynch and Comcare (2010) 114 ALD 394 at 421. Although Lynch was reversed on appeal, it was not on this ground.
96.The relevant procedures relating to disciplining staff are found in the collective agreement. Section Q of the Department of Disability, Housing and Community Services Union Collective Agreement 2007-2010 as amended (1 October 2008) (Agreement) deals with misconduct and discipline. Clause 91.5 provides that ‘These procedures must be applied in accordance with the principles of natural justice and procedural fairness and in a manner that promotes the values and general principles of the ACTPS’ (ACT Public Service). According to the terms of the Agreement, the procedures apply to the exclusion of the provisions relating to misconduct in Part 9 of the Public Sector Management Act 1994 (ACT) and the misconduct procedures in Part 6.3 of the Public Sector Management Standards which also relate to disciplinary action.[14]
[14] Department of Disability, Housing and Community Services Union Collective Agreement 2007-2010 as amended (1 October 2008) clause 91.6.
97.The Agreement provides that when taking disciplinary action the employer’s procedures must comply with principles of natural justice except in cases of ‘serious misconduct’. Clause 92.3 of the Agreement provides:
In cases where serious misconduct is alleged, the Chief Executive may inform the employee and may immediately transfer the employee to other duties, re-allocate duties away from the employee or suspend the employee in accordance with Clause 97 while the alleged misconduct is investigated.
98.In other words, protections such as giving notice of alleged wrongdoing and an opportunity for the employee to respond to allegations of misconduct in advance of any adverse actions, may be denied in cases of ‘serious misconduct’. It is evident from the statements of key witnesses such as the decision-maker, Mr David Matthews, Director of ACT Housing, his Senior Manager, Organisational Services, Ms Maree Mannion, who advised him about the steps required under the Agreement, and Ms Jancye Winter, Senior Manager, Gateway and Operational Services who alerted him to the alleged misconduct, that it was considered that Ms Sands's actions involved 'serious misconduct' under clause 92.3 of the Agreement.
99.In deciding whether misconduct alleged is ‘serious misconduct’, under the Agreement the Chief Executive of the Agency ‘will’ have regard to ‘the kinds of conduct described as “serious misconduct” in regulation 12.10 of the Workplace Relations Regulations 2006 (Cth)’.[15] In other words the kinds of conduct covered by that regulation are an indication of what is ‘serious misconduct’ for the purpose of the Agreement.
[15] Agreement clause 92.4.
100.Regulation 12.10(1) at the relevant time provided that ‘serious misconduct’ included:
12.10 (1) (a) wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
(b) conduct that causes imminent, and serious, risk to:
(i) the health, or safety, of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(2) For subregulation (1), conduct that is serious misconduct includes:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(b) the employee being intoxicated at work; or
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(3) Subregulation (2) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
101.There is no evidence that Ms Sands was involved in theft, fraud or assault; or that she had been intoxicated at work. Nor had she been involved in any action that caused ‘imminent and serious risk to the health, or safety of a person or the … viability or profitability of the employer’s business’. The only possible serious misconduct action in the terms of regulation 12.10 in which she could be said to be engaged was the allegation that she refused ‘to carry out a lawful and reasonable instruction that is consistent with’ her contract of employment.
102.In the context of the examples of ‘serious misconduct’ the failure to follow a lawful and reasonable instruction must be of considerable moment to fall within the ‘serious misconduct’ category.
Other types of conduct which might be considered of equivalent seriousness
103.The list of matters amounting to ‘serious misconduct’ is not exhaustive. That means the Tribunal must consider whether there was other conduct of Ms Sands of equivalent seriousness which could be alleged and which justified the Agency taking the actions involved in Ms Sands’s suspension. This would involve conduct that was wilful or deliberate and that was inconsistent with the continuation of the contract of employment, and caused imminent, and serious, risk to the reputation of the employer’s business.
104.The agreed facts state that the matters in which Ms Sands was alleged to be involved were the administrative process to allocate public housing to a relative of an employee of the Agency which it was asserted she had improperly expedited and as to which she had failed adequately to brief management; and the processing of a mutual tenancy exchange for an Agency employee, a task which she was alleged to have improperly allocated.
105.The investigator was asked to explore:
·whether Ms Sands … improperly expedited the application without sufficient justification;
·whether Ms Sands facilitated the allocation of a three bedroom house when the family member was only entitled to a two bedroom house without appropriate consideration of the claims of other priority housing applicants requiring this dwelling;
·Whether there was improper conduct in the processing by Ms Sands and Ms Taber of a mutual tenancy exchange involving an agency employee.
106.Each of these matters, if they became public knowledge, could cause ‘imminent and serious risk to the reputation’ of public housing processes in the ACT. It was the fear of this outcome which had motivated Mr Matthews to take precipitate action. Indeed, according to his testimony, his initial concern was that there was potential fraud and corruption.
107.Ms Winter’s evidence at the hearing was that the concerns which led her to alert Mr Matthews to take the suspension action were:
·That there was no formal brief about the family member’s application on the file;
·That she did not believe the application warranted going to the MDP;
·That it was suspiciously fast that the property for the family member was allocated within 24 hours; and
·The fact that the family member was allocated a three bed-room, not a two-bedroom property.
108.Identifying the misconduct in which Ms Sands was alleged to be involved is necessary as there is a graduated selection of processes under the Agreement which apply to forms of ‘misconduct’. That information also enables the Tribunal to assess whether Mr Matthews properly applied the appropriate processes under the Agreement. If he did so, his administrative actions would have been reasonable and conducted in a reasonable manner (Act, section 5A).
109.The Tribunal notes that identification by the respondent of the ‘administrative action(s)’ on which it proposes to rely is critical to claims involving matters of ‘reasonable administrative action’. The failure clearly to identify what ‘administrative actions’ were being relied on at an early stage in this matter unnecessarily contributed to the length of the hearing and the reception of material from witnesses.
110.Ultimately it was accepted that the administrative actions involved two decisions by Mr Matthews, namely, a decision to investigate actions by Ms Sands; and a decision to suspend her with immediate effect. The provisions of the Agreement relevant to those decisions follow.
Terms of Agreement relating to Misconduct & Discipline
Investigation
111.The processes for dealing with misconduct are outlined in Section Q ‘Misconduct & Discipline’ of the Agreement. Section 91 outlines the ‘Objectives and Application’, for Section Q. Clause 91.4 ‘These procedures must be applied in accordance with the principles of natural justice and procedural fairness and in a manner that promotes the values and general principles of the ACTPS’.
112.In brief the processes involve the following clauses. Clause 92.1 requires the ‘manager/supervisor’ in cases where misconduct is alleged’ to ‘gather sufficient information in a timely manner to determine whether the seriousness of the matter warrants investigation by the Chief Executive under clause 94’. The clause also states that ‘The employee will be informed of the allegations unless the manager/supervisor considers it inappropriate to do so’. In other words a prima facie case must be established to decide whether to hold an investigation and normally natural justice will apply.
113.Clause 93.1 says that if 'after considering the gathered information', the decision-maker ‘is of the opinion that the alleged misconduct has not occurred or is not sufficiently serious to warrant an investigation’ the employee is to be informed there is to be no discipline action and no investigation. If there has been misconduct but it can be handled informally, that is the next option (clause 93.1 and 93.2). However, if an investigation is warranted because the manager/supervisor or the Chief Executive (in this case it was Mr Matthews) considers, after consideration of 'the gathered information', that the alleged misconduct warrants an investigation, clause 94 concerning investigations is activated (clause 93.3).
114.Clause 94 requires that the Chief Executive inform the employee ‘in writing of the nature of the alleged misconduct … including the discipline actions available’. Notice is required at least 24 hours prior to an interview, and the person is to be advised that they may have a representative present at the interview (clause 94.1). At this point the Chief Executive will also take any further steps to establish the facts (clause 94.2). These requirements are subject to clause 92.3 which, in cases of 'serious misconduct' permits either immediate transfer of the employee to other duties, re-allocation of duties away from the employee or suspension of the employee in accordance with section 97, the suspension clause.
115.Actors in this process include the manager/supervisor and the Chief Executive. Those terms are defined in the Dictionary attached to the Agreement. The ‘Chief Executive’ ‘means a person engaged under sections 28 and 30 of the PSM [Public Sector Management Act 1994 (ACT)], as the Chief Executive of the agency’. A ‘manager’ ‘means a person who has responsibility for planning, organising and leading a work unit or group activity’; a ‘supervisor’ ‘means a person who has direct supervisory responsibility for one or more employees in a work unit or group activity’. The descriptions are broad and do not make for easy correlation between the actual positions of the persons involved in this matter and the Agreement.
116.The line of responsibility of those most closely involved was: Mr Matthews; immediately below him, Ms Winter; below her, Ms Sands; and below her the team leaders including Ms Taber and Ms Laggner. Both Ms Winter and Ms Sands appear to fall within the definition of ‘manager’, while team leaders would be ‘supervisors’. Ms Winter, Mr Roylance and Ms Bernadette Maher, were designated at the Senior Officer Grade SOGA level; Ms Sands was a SOGC and the team leaders were at the ASO6 level.
117.The decision to set up an investigation is to be made by the Chief Executive (clause 94). It was common ground in this application that Mr Matthews was a member of the executive team. He took the decision to suspend Ms Sands. In that regard, he was acting under delegation of the Chief Executive of the Agency, Ms Maureen Sheehan.
118.The provisions indicate that the initial information-gathering is to be undertaken by a ‘manager/supervisor’. The Tribunal has assumed the manager/supervisor in this case is Ms Winter since she was the source of the allegation and Mr Matthews principally relied on information she reported to him. The Chief Executive, Mr Matthews, took the decision to commence an investigation and in order to do so he must have been ‘of the opinion that the alleged misconduct’ warranted such a move. To do so he needed to be satisfied that ‘the seriousness of the matter required an investigation’ (clause 92.1).
Suspension
119.Suspension may occur in cases of ‘misconduct’ or ‘serious misconduct’ and can be implemented ‘where the Chief Executive is satisfied that it is in the public interest, the interests of the ACTPS or the interests of the Agency that the employee be suspended while the alleged misconduct is investigated’ (clause 97.1). Immediate suspension may occur in either case but given the adverse impact of suspension on a person's reputation, suspension is more likely to occur in cases of ‘serious misconduct' (Clause 92.3, 97.2).
120.Clause 97, the suspension provision, is to be read ‘subject to these procedures’ (clause 97.1). That means, account must be taken of other terms of the agreement, in particular clause 91.5 concerning compliance with natural justice. Complying with principles of natural justice or procedural fairness is a fundamental objective of the agreement. It is only in cases of immediate suspension that those principles are modified, notably concerning prior notice of the allegation and an adequate opportunity for the employee to respond prior to the suspension. Clause 97.2 provides that ‘The Chief Executive will not normally suspend an employee’ in breach of these natural justice requirements (emphasis added). Immediate suspension without complying with procedural fairness requirements is only to occur ‘where, in the Chief Executive’s opinion, this is appropriate in the circumstances’.
121.The ‘circumstances’ are not specified and are at the discretion of the Chief Executive. Nonetheless, the tenor of the overriding objective to comply with natural justice in Section Q of the Agreement and the specific clauses referred to detailing fair procedures, including clause 97.1, indicate that it is only in circumstances where the ‘misconduct’ is likely to harm the ‘interests’ referred to in clause 97.1 that denial of the fundamental right to natural justice is warranted (clauses 91.5, 97.2). The Tribunal notes the specific reference to criminal conduct in clauses 97.5 and 97.6 as exemplifying the intention that it is only conduct at the serious end of the spectrum that makes is ‘appropriate’ to exercise the immediate suspension sanction.
122.It can also be hypothesised that taking immediate suspension action would only be ‘appropriate’ in cases of imminent harm to the ‘interests’ specified, as for example, to avoid risk to the health and safety of other employees or to clients, or to prevent harm to the reputation of the Agency and undermine public confidence in its processes. Such cases would generally fall within the ‘serious misconduct’ category. Mr Matthews relied on clause 97 to suspend Ms Sands ‘immediately’ and for the duration of the investigation of the alleged serious misconduct.
Matters of concern to Mr Matthews
123.The matters which Mr Matthews’s said were of concern at the time of the suspension were listed in his statement, dated 6 August 2010, as follows:
·Ms Winter had reported that she was made aware of the family member application ‘indirectly’.
·Ms Winter had advised me that she had specifically spoken to another staff member (Ms Rochelle Bessey) about the family member application and had directed that it not go before the MDP. Ms Winter advised, however, that the matter had then been put before the MDP while she was on leave. I therefore had a concern that the window of Ms Winter’s absence was used to advantage the family member’s application.
·Following priority housing approval from the MDP, the family member received an offer for housing immediately, which appeared to be above her entitlement. The Agency’s HomeNet system had been changed to alter the family member’s bedroom allocation entitlement from two bedrooms to three bedrooms and her area of preference had been changed. This had the effect of the family member becoming eligible for a property that was vacant, which would otherwise not have been offered.
·Priority housing is allocated on a needs basis rather than a chronological basis, but it is always necessary to show why one allocation is made over another. In this case, it was not clear why the family member had been upgraded in terms of bedrooms, and why she had received an allocation over other applicants.
·I subsequently found out about another staff-related application, which took the form of a mutual exchange involving a staff member who I understood to be a close colleague and also a personal friend of Ms Sands. I was advised by Ms Winter that this issue had only come to light after she had made enquiries about the allocation of the family member.
·There appeared to be a lack of transparency in relation to how the applications were conducted, and some irregularities in the decision making that led to the allocation of the family member. I deal with sensitive information every day, and I was concerned that Ms Sands did not consider it appropriate to share the relevant information with myself as the Director.
·In relation to the mutual exchange, on the basis of information I was provided by Ms Kellie Laggner (Housing Manager), I was surprised that Ms Sands had also specifically prevented the issue being raised with Ms Bernadette Maher the Senior Manager of Tenancy Services (temporarily offline, but working in the building) who was the most experienced senior manager in managing sensitive issues involving tenants or applicants who are staff members. I was aware that Ms Maher had previously managed issues relating to the employee’s tenancy. …
·I was concerned that there may be other such matters that had not come to light.
124.Mr Matthews said at the hearing that the order of the above dot points represented some kind of prioritisation. In particular the fact that it appeared that Ms Winter had ‘specifically instructed that the application not proceed … and that it had, … was of very significant concerns to me’; so too was the fact that Ms Winter only discovered ‘indirectly’ that the matter had gone to the MDP in her absence.
Reasons for and steps taken in the process by Mr Matthews
125.Mr Matthews’s testimony was that in making the decision to investigate Ms Sands's conduct he relied on the information provided verbally and in writing by Ms Winter, the briefs from Ms Taber and Ms Sands, a file note from Ms Laggner, and the search results of the Agency’s HomeNet computer system. He conceded he did not seek information from Mr Roylance, Ms Bessey, or Mr Spencer. He also said of Ms Winter’s evidence to him ‘I assumed that she provided the information to me in good faith and it was accurate’.
Indirect communication to Ms Winter of outcome of application by family member
126.Mr Matthews said he was concerned that Ms Winter had only been ‘made aware of the … application indirectly’. In response to a question about what he meant by ‘indirect’, Mr Matthews said this referred to Ms Winter only having been advised by Ms Chapman of this fact on 11 March 2009, although Ms Winter had been back from leave since 23 February 2009. Ms Winter had then advised him orally about the matters on 11 March 2009, followed by a file note dated 19 March. The Tribunal notes, however, that in the same file note, Ms Winter states that on her return from leave on 23 February 2009, Mr Roylance had briefed her directly on the outcome on the family member application. Accordingly, his understanding about the indirect method of notification was faulty and could have been assuaged had he read the file note more closely and followed up by checking with Mr Roylance.
127.Mr Matthews did not speak with Mr Roylance despite the fact that he was the next most senior person in Gateway Services to Mr Matthews while Ms Winter was on leave, and his discretion could as a consequence have been relied on. Mr Roylance had also chaired the MDP on the 19 February, and was acting manager of Tenancy Services when the mutual exchange matter was under consideration. Mr Matthews also conceded that he did not know that there had been a conversation between Mr Roylance and Ms Sands prior to the MDP meeting, a further matter which he could have discovered from Mr Roylance had he spoken with him prior to making his decisions. Mr Roylance also was able to confirm that Ms Sands had spoken with him about the mutual exchange matter prior to the choice of Ms Laggner and Ms Taber.
128.The apparent suggestion from Ms Winter’s file note was that she expected Ms Sands to have briefed her on the family application and that her failure to do so was part of the pattern of concealment. However, there were alternative explanations. In his statement Mr Roylance said that the family member application ‘at the time … seemed like a normal process and application’. Ms Sands had also spoken three times with Ms Winter about the matter in its initial stages to inform her that a family member application was in train. Later Ms Sands’s involvement was minimal. In those circumstances, and given her later, peripheral involvement, it is unlikely that Ms Sands would have considered the matters of sufficient moment to report to Ms Winter. In any event, since it is usual practice for someone who has acted in a person’s role to report to the incumbent on their return, she could assume that Mr Roylance would have done so, as he had done. Had Mr Roylance been consulted, Mr Matthews's concern on this issue might not have arisen. Mr Matthews's failure to read Ms Winter’s minute more closely and to at least check with Mr Roylance were instrumental in raising his concerns, as it transpired, unnecessarily.
Referral of application by family member to MDP contrary to Ms Winter’s instructions
129.Mr Matthews said he first became aware of the family member application, when Ms Winter had raised her concerns about how the matter was dealt with. He thought this was about 11 or 12 March. Mr Matthews then asked Ms Winter to provide more information in writing, and asked that Ms Sands and Ms Taber prepare briefs regarding the family application.
130.Mr Matthews only had Ms Winter’s word on this issue of key concern and it was possible her testimony was affected by the fact that it was apparently her ‘direction’ or advice on this matter which had not been followed. Ms Matthews explained his failure to seek further information on this and other matters on the basis that it was not for him to undertake the investigation personally. His approach is understandable since the Agreement provides for a formal investigation.
131.Nonetheless, the terms of the Agreement mean it was incumbent for him to gather ‘sufficient information’ prior to taking action to justify an investigation which is potentially damaging to a person’s reputation (clause 93.3). Ultimately he had to be satisfied on the balance of probabilities 'whether misconduct has occurred' (clause 94.3), and whether the seriousness of the allegations meant it should be himself, or an independent investigator, who undertook the investigation. Given the serious nature of the allegations, the standard of proof, and the need for him to attain a state of satisfaction based on ‘sufficient information’, the sufficient information needed to be at a probative level commensurate with the seriousness of the allegation.[16]
[16] Briginshaw v Briginshaw (1938) 60 CLR 336.
132.Ms Sands’s alleged failure to follow a ‘reasonable and lawful direction’ is listed in regulation 12.10 as an instance of 'serious misconduct'. The evidence relied on for an allegation to this effect was said to be the file note of Ms Winter. However, Ms Winter’s file note makes no mention of a formal direction. She noted simply that ‘I concurred with Ms Bessey and we both agreed that this case would not proceed to the MDP unless there was a change in circumstances’. This was a qualified opinion, which both Ms Bessey and Ms Winter said could be altered if the financial circumstances of the family member changed. The qualification reflected the fact that the family member was negotiating a part-time position prior to the meeting of the MDP and if this had been achieved, there would have been no income impediment to the referral of her application. Ms Winter acknowledged at the hearing that these circumstances meant she ‘was open to reconsidering at any time if the applicant’s circumstances changed to reconsider taking it to the MDP’. These circumstances and beliefs do not suggest a formal direction had been issued.
133.In addition, normally a direction would be noted in a formal minute and placed on file. It was accepted no such note had been made. Ms Bessey’s statement for the hearing said: ‘I would ordinarily make a note on the bottom of an MDP referral if it had been decided that it was not to go before the panel. I did not in this case, probably because a final decision had not been made’. Ms Bessey also noted in her statement that she had never discussed the matter with Ms Sands although she said she had mentioned her conversation with Ms Winter to Ms Taber. Ms Taber’s statement of facts attached to her statement for the hearing noted that she had told Ms Sands that Ms Winter ‘did not wish for it to go before the panel’. Neither Ms Sands nor Ms Taber referred to any ‘direction’ in their briefs for Mr Matthews.
134.These circumstances – the conditional form in which Ms Winter couched her reference to any ‘direction’ in her file note; the absence of any file note when it would be usual for one to have been made; and the fact that there was no evidence that Ms Sands had ever been notified of any formal direction − should have alerted a senior officer such as Mr Matthews to the need for a clearer, documented and less indeterminate instruction than the evidence he had of this matter. Had he checked the file, or contacted Ms Bessey, he could have been alerted to these problems. Those circumstances do not amount to a sufficiently robust allegation of a failure to follow a ‘reasonable and lawful direction’ to amount to ‘serious misconduct’.
135.Mr Matthews also said he understood from his conversation with Ms Winter that the matter should not have gone before the MDP due to the level of need (relating, for example, to domestic violence, homelessness, separation from dependent children) relative to other applications. The reality, as counsel pointed out to Mr Matthews, was that the issue was primarily income, not relative need. Indeed, the information in Ms Winter’s file note of 19 March 2009 clearly indicated that it was the fact that the person was employed full time and could possibly access the private rental market which was the issue. Mr Matthews's misunderstanding again suggests he did not carefully examine Ms Winter’s note to him, and this led to him to have an incomplete understanding of the circumstances.
136.Mr Matthews also acknowledged at the hearing that he had not examined any of the files to check the information provided by Ms Winter and others. Given the level of satisfaction required in such serious cases, it was reasonable for him to have checked by perusing the file to ensure that the facts as he had been advised were correct. He did not do so.
137.In relation to the nature of the direction, Mr Matthews could also have asked for information from Ms Bessey. He admitted at the hearing that he had not spoken with her and hence was not aware until he saw the investigator’s report that she had never told Ms Sands what Ms Winter had said about the family member application. He said he did not do so because he ‘felt [he] had sufficient information at that point to support … an independent investigation’. The Tribunal acknowledges that as part of his information gathering, Mr Matthews could not be expected to speak with all those involved. Nonetheless, he should have contacted Ms Bessey. She was not suspected of involvement in any of the suspicious actions raised by Ms Winter, she had first-hand knowledge of some of the events, was relatively senior and could be trusted to keep information confidential. It would have been relatively easy for him to have either spoken with her in person or to have asked her to provide him with a note. His failure to seek corroborating information from her prior to taking his decision meant he had not fulfilled his obligation to gather ‘sufficient information’.
138.Had he done so he could have discovered from her that there were no notes on the file concerning such a direction. Given normal practice regarding formal directions, which is that they are recorded, a requirement consistent with the fact that a failure to follow a ‘lawful and reasonable direction’ can be ‘serious misconduct’, he would then have been alerted to explore this issue further. This he could have done by checking with the file.
139.Mr Matthews justified these omissions on the basis that the decision to suspend with immediate effect ‘was not a harsh or unfair decision’. As he said ‘After the information that I had available to me I was concerned that it was serious and the [sic] potentially misconduct had taken place’. At the same time he conceded that there was likely to be reputational damage to Ms Sands if she was subject to an immediate suspension.
140.Given his concession about reputational damage it is surprising that Mr Matthews considered that the decision to suspend was not at least harsh. He must have known that such an unusual step would attract comment adverse to Ms Sands. In addition, even assuming Ms Sands had been involved in ‘serious misconduct’, he had options under clause 92.3 other than suspension that he could have taken and which would have been less damaging from a reputational perspective. These included to transfer Ms Sands to other duties, or to re-allocate duties away from her. Taking Ms Sands offline could have removed her from those she was said to have influenced, prevented her being involved in the allocation of public housing, and have been presented to staff in a considerably less damaging light than an immediate suspension. Ms Mannion in her testimony confirmed that these possibilities had not been raised at the meeting on 25 March 2009. His failure to consider such action meant Mr Matthews failed adequately to consider other options as he should have done in the exercise of his discretion under the Agreement.
141.Mr Matthews’s information sources included briefs from Ms Sands and Ms Taber. The briefs indicated the limited extent of Ms Sands’s involvement and the correspondingly greater involvement of Ms Taber. To check whether this impression was accurate required Mr Matthews to do no more than examine the file on the family member application.
142.At the same time, the briefs were demonstrably deficient from Mr Matthews’s perspective. They did no more than chronicle the events in a manner which would have sufficed for a routine brief, which, according to Ms Taber and Ms Sands was all they had been asked to provide. For the most part they did not address the matters of concern to him, a matter he acknowledged at the hearing. As a consequence, the briefs, according to Mr Matthews, 'were not as fulsome as I expected’. That concession and the fact that this was a pivotal issue for him suggest that it would also have been reasonable for him to have sought further information on the specific matters of concern. Although Mr Matthews explained he did not speak to Ms Sands or Ms Taber during this time, and that was understandable given the nature of the allegations, he could have asked them at least to clarify in writing aspects of their briefs, particularly where they were inconsistent with information from Ms Winter, and where there was insufficient information in relation to the specific questions which he had to address and the matters of his concern.
143.Mr Matthews said the information that was made available to him in all of the material suggested that Ms Taber had acted ‘under the direction of Jane’ and that ‘Jane had acted in the coordination role over these two matters’. He conceded in the hearing that if, rather than Ms Sands directing her, Ms Taber had exercised her own discretion, with the concurrence of Ms Sands, ‘that would be a different thing’. The information in the briefs provided to him did indicate their respective roles. He could have checked further with them about this issue since this appeared to be a matter which significantly influenced his decision. This too he did not do. In these circumstances, the Tribunal is not satisfied that Mr Matthews’s actions in limiting the sources of his information to the notification by Ms Winter and the two inadequate briefs met the 'gathering sufficient information' test to the requisite standard.
Speed of allocation of property to family member and upgrade of entitlement
144.The concern underlying this issue was that in some unspecified manner Ms Sands had been instrumental in effecting a speedy allocation of the property to the family member, and that the house allocated exceeded the family member's entitlement. That was because she apparently only had two children and the family should therefore have been accommodated in a two bedroom house. Given Mr Matthews heightened suspicion at that time, based on the information given to him, it was not surprising that the speed of the allocation appeared suspicious.
145.Nonetheless, he conceded at the time he suspended Ms Sands that he knew it was Ms Taber, not Ms Sands who had taken the decision to upgrade the allocation to the family member from a two to a three bedroom house, thereby probably accelerating the allocation. He acknowledged that the facts would have had a different complexion had he appreciated that Ms Taber was exercising her independent discretion. He also conceded that he had Ms Taber's brief referring to the family member’s care at times of her partner’s other children as the reason she had taken the decision. That provided information justifying the upgrade. Although this information contradicted information on the HomeNet system, had he checked the file he could have established the veracity of the information provided. In other words, at the time he made the decision concerning Ms Sands, information was available about these events which Mr Matthews either was given or could have obtained. The fact that he had either not absorbed the information provided and did not check with the file, indicates that he gathered insufficient information and failed to meet the standard required by the Agreement for a decision of this nature.
146.The Tribunal heard evidence from witnesses at the hearing that the objective for allocating houses in priority cases was 90 days and that a quick turnaround was not unusual. The allocation depended on the housing needs of the person, and the availability of suitable houses in the nominated regions. For example, Ms Bessey in her statement for the hearing stated: ‘it was not necessarily unusual for a housing applicant to be allocated a house within 24 hours of an MDP meeting and it happened in the past’. Evidence was also provided to the Tribunal that it was quicker to obtain a three bedroom house than one with two bedrooms. Mr Matthews as a former and experienced Chair of the MDP would have been aware of these facts.
Mutual exchange: concerns about improper influence by Ms Sands and lack of transparency in the process
147.Mr Matthews noted at the hearing that ‘there was some sense in Kelly Laggner’s file note that – that she had been influenced in her decision-making and asked to keep information close to her and not to provide it to other officers appropriately such as Mrs Maher’. Initially when asked by Ms Winter, Ms Sands had refused to disclose information about the matter, only doing so when Ms Winter said she would need the file. This could have suggested that Ms Sands was concealing information for some purpose and was using Ms Laggner to achieve these ends. It was presumably possibilities along these lines that had aroused first Ms Winter's and then Mr Matthews's concern.
148.Ms Winter’s file note, however, does not give any indication that Ms Laggner was pressured by Ms Sands to undertake the mutual exchange. The note simply records Ms Laggner as saying she had not done a mutual exchange previously. Ms Laggner, in her file note, indicates she understood there was a need for confidentiality, that Mr Roylance was aware of the matter, and while conceding her lack of experience that she had volunteered to ‘find out what the process was’. She too gave no indication she was being pressured. On this evidence alone it is difficult to see that the concerns were justified.
149.However, an element of Mr Matthews’s concerns was the few people who knew about the exchange. The level of secrecy implied a cover up for some reason. Nonetheless, the evidence also indicates alternative and innocent explanations. Ms Sands had been requested by the employee that the information be kept to as few people as possible. That was a reasonable request given the employee’s position in the Agency and the apparently sensitive nature of the reason for the move. This could have been assumed by Mr Matthews given the specific information provided to him and his experience in this area. In addition, since Ms Winter's file note indicated that Ms Laggner had contacted Mr Roylance about the exchange on 13 March 2009, and Ms Sands had also briefed him, noted in both Ms Winter's and Ms Laggner's file notes, he too could have been approached for information to allay this suspicion.
150.Another issue suggesting clandestine behaviour was the fact that Ms Sands had apparently not notified Ms Bernadette Maher, the Senior Manager in the area. That concern had been fuelled by a comment in Ms Laggner's file note that Ms Maher was not to be informed as 'she may not keep the information to herself'. At the hearing, Ms Sands denied that she made this remark about Ms Maher. As she said she and Ms Maher had a good professional relationship and she was one of the persons in the Agency Ms Sands said she could trust. The Tribunal has no reason to doubt her evidence on this matter which was tested at the hearing. Ms Sands also noted that she had been told Ms Maher was on leave at the time of the application for mutual exchange. Mr Matthews’s evidence was that Ms Maher was ‘offline’ at the time, although she was on the premises in a different location. In either event, she was not in her room when Ms Sands tried to see her and, based on the information which she was given, her assumption that she was not available was reasonable.
151.Finally on the issue of lack of transparency, Mr Matthews noted that ‘Ms Sands did not consider it appropriate to share the relevant information with myself as the Director’. However, there was an explanation for this omission. At the hearing Mr Matthews had said: ‘…in many cases [housing files for employees and family members were] also brought directly to my attention as the director and there would be certainly occasions where I would, you know, review – review files and at times also take decisions directly myself that involved staff members’. Those comments indicate only that ‘there would be occasions’ on which Mr Matthews views would be sought, not that it was the invariable practice for this to happen.
152.There was also discussion at the hearing as to whether it was Agency policy that the Director should be briefed on all employee applications. Ms Sands’s testimony was that she did not know of such a policy. She said she had raised the matter with Ms Winter when challenged about not having provided such a brief and had requested clarification from Ms Winter about the matter since she was not aware of such a policy. Ms Winter denied this conversation. There was general acceptance in the evidence, that there was a policy that a brief was provided for all Out of Turn applications, but on the testimony there was no settled view as to whether a brief was required for other staff related matters. At the hearing Mr Matthews agreed that: ‘The investigator, I believe, found the lack of formal policies in that area’. It is significant that Ms Winter’s testimony was that since these events policies have been developed and published to cover the circumstances involved in this matter. The absence at the time of any settled view on either a practice or a policy, explains and excuses the failure of Ms Sands to provide such a brief and Mr Matthews as an experienced manager in this area should have been aware of this uncertainty.
153.It would also be unusual for someone at Mr Matthews’s level in an Agency to be approached directly by an officer three levels lower. The more usual process would be that information is passed up the line to the next most senior person, who in turn assesses the significance of the information and, if necessary, passes it on to their superior. In this instance Ms Sands had briefed Mr Roylance who confirmed that Ms Sands had orally briefed him on the issue. In these circumstances Ms Sands was entitled to rely on the practice that the information, if warranted, would be passed up the line to the Director.
154.There were, however, other aspects which had heightened the concern. Ms Sands’s choice of Ms Taber to undertake the initial processes may have appeared suspicious as she was also involved in the family member application. In her brief, however, Ms Sands notes that she had chosen Ms Taber when advised that the relevant team leader, Ms Bessey, was going on leave and would not be available when the sign off was needed. That information could have been checked from personnel files for Mr Matthews.
155.In addition, Ms Sands's brief states that prior to sign off she had attempted to find the relevant regional manager to suggest someone to inspect the property, but was advised that the manager too was on leave. Given that the employee had indicated there was a need for a speedy conclusion of the matter, and evidence was provided that most team leaders were on a course at that time, it was understandable that Ms Sands should turn to someone, albeit inexperienced, like Ms Laggner to carry out the task. Mr Matthews conceded in his testimony that he could not recall whether he knew that Ms Laggner’s regional manager was present or not at the time Ms Laggner was appointed to inspect the properties involved in the mutual exchange. Had he discovered this information and been advised of the unavailability of suitable staff at that time, it may have reassured him that nothing untoward was involved.
156.Ms Winter had also suggested in her file note that Ms Sands and the employee had worked together for many years, implying that Ms Sands's involvement may have been for collusive purposes. Mr Matthews also said he was aware that the two lunched together on occasions and he considered them to be friends. This information failed to note, however, that the two had not worked in the same area since 2004. Even had this friendship been a factor in Ms Sands's choice, Ms Taber had no apparent relationship with the employee, and the Tribunal notes that Ms Taber’s involvement in the exchange appeared to be confined to an initial assessment, and a meeting prior to the sign up that she was not able to attend. So it is difficult for the Tribunal to see how the relationship might have furthered the arrangement. The only advantage may have been legitimately to protect the confidentiality of the employee, rather than anything more untoward.
157.Another criticism noted by Ms Winter was that both people involved in the mutual exchange were apparently above the income threshold. However, she also noted this threshold did not strictly apply to those whose eligibility for public rental housing was already established as was the case in this mutual exchange. Further, Ms Laggner confirmed in her file note that on her reading of the guidelines, the income threshold did not apply. On that basis the suggested criticism appears to have no substance.
158.A procedural abnormality in the process noted by Ms Winter was the suggestion by the employee that the pre-transfer inspection should be treated as a client service visit, a less formal process than would normally be required for an exchange. This was apparently not the usual procedure and the implication was that the approach adopted was designed to expedite the process. The fact that when the suggested process was queried by Ms Laggner, the employee attempted to check the situation with Ms Sands also raised an inference that Ms Sands may have been involved in suggesting this inappropriate approach. However, the suggested change in process was made by the employee, not Ms Sands, and the attempted contact, as it transpired was abortive. It is hard to see how these matters could have raised imputations involving Ms Sands, when, in the circumstances, including the absence at that time of other senior staff involved in such matters, she may have been an appropriate person to try and contact. So there were alternative and innocent interpretations of these events.
159.Another procedural infelicity was Ms Sands’s authorisation of only one person rather than two to inspect the two properties. Ms Winter explained at a meeting between herself, Ms Taber, Mr Roylance and Ms Sands after the handover, that a mutual exchange inspection was usually carried out by two tenancy staff and approved by the respective managers for the regions where the properties were located. Since staff mutual exchanges were rare, Ms Sands had opted to approach only one person to protect the employee’s privacy, an approach apparently agreed to by Mr Roylance. Ms Sands also confessed to being somewhat inexperienced in the process. So these too provided an acceptable explanation for this error.
160.In support of the general lack of understanding among staff about the mutual exchange process the Tribunal notes that in Ms Sands’s brief to Mr Matthews she recorded that an outcome of that meeting was that the policies and procedures for mutual exchanges needed to be updated and put on the system, that further training for staff about the mutual exchange processes was needed, as well as additional training and written guidelines regarding dealing with staff applications and tenancies. Had Mr Matthews carefully read her brief, he would have been alerted to these reasons for the apparent breaches of the procedures. This information too he could have sought from Mr Roylance. Had he done so a different perspective would have been available to him about the reasons for the actions the subject of his concern.
Other matters?
161.The final matter of concern in Mr Matthews’s list was that there might be other matters which had yet to come to light. At the hearing, Mr Matthews said of this issue:
My concern was … the way the information had been provided to Ms Winter was that we were possibly not aware of other matters that were – that had taken place in a similar way or that had been handled in a similar way and we wanted to make sure that if there were other matters that had been handled incorrectly that we got to the bottom of those issues and that we were able to understand the circumstances in these cases but also whether there were other cases that – that were also relevant and that needed to be explored.
162.There is no information in any of the written material before Mr Matthews to indicate this possibility. Ms Winter’s evidence at the hearing was that she found six other files relating to staff members in Ms Sands’s office after Ms Sands had left. It is possible she may have indicated this to Mr Matthews but there is no information on this issue in her file notes. In her testimony, Ms Sands noted there were four staff applications, only two of which – presumably the two under consideration − were dealt with while she was working at the Agency and she was adamant there were only the two others in her office. There was no evidence about how long these files had been in her office, who was handling them, or whether the number was unusual. In other words, it appears that, apart from Ms Winter's report, there was nothing more concrete to support this concern. Mr Matthews had a series of suspicions, but nothing more.
163.In summary, the purpose of this examination has been to explore whether Ms Matthews had gathered sufficient information in order for him to institute an investigation and, while that was in train, to direct that Ms Sands be suspended. The conclusion reached by the Tribunal following this examination of the list of concerns was that the information which Mr Matthews had relied on was insufficient to enable him to reach a balanced opinion on the matters before him.
Reasonable administrative action taken in a reasonable manner
164.The administrative actions relied on in this matter were the combination of the decision to investigate the allegations and to suspend Ms Sands with immediate effect until the investigation was concluded. Under the Act ‘reasonable administrative action’ includes (1) ‘a reasonable suspension action in respect of the employee’s employment’ and (2) ‘anything reasonable done in connection with’ a suspension action.[17] The investigation action was intimately connected with the decision to suspend and falls within the second statutory example.
[17] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(2)(c), (e).
Investigation process
165.Mr Matthews said as part of his preparation for the decisions he had to take he took steps to familiarise himself with the collective agreement and he sought the advice of Ms Maree Mannion, Organisational Manager, ACT Housing, and his supervisor, Ms Maureen Sheehan. He also sought advice from Ms Meredith Whitten, a senior director responsible for complaint management, ‘including matters that go to potential staff corruption or fraud’. Ms Sheehan and Ms Whitten did not give evidence and since no notes were made of the conversations they had with Mr Matthews, no account can be taken of their contribution.
166.Ms Mannion did give evidence. She said she had had two meetings with Mr Matthews about the processes. At the first meeting, which she claimed was in late February, but was probably after Ms Winter had first raised the allegations with Mr Matthews on 11/12 March 2009, Ms Mannion advised that, prior to taking action, Mr Matthews needed to get 'written advice from the person who had made the allegation' (later she said a 'report'), and 'to elicit information from the person involved'. Those persons were Ms Sands, Ms Taber and others. She did not specify which others. She said that at the first meeting, Mr Matthews had received advice only from Ms Winter and he did not have any documentary evidence on which he was then relying.
167.The second meeting, at about 10.30am on 25 March 2009, was attended by Mr Matthews, Ms Mannion, and Ms Sheehan. Ms Mannion reported that Mr Matthews said at the meeting that he had not been convinced from the explanation provided that 'appropriate processes had taken place'. Ms Mannion said of the advice she gave at that meeting, given 'the serious nature of the allegations':
The rationale for assessing serious misconduct is covered under the Workplace Relations Regulations, and when Mr Matthews explained his concern about how this property was allocated to [the family member], it fell within the boundaries of potentially bringing the department and the government into disrepute, and it would affect the integrity of the system of allocating public housing.
168.She reported that no further examination of the circumstances occurred, nor was there discussion of any personal advantage to Ms Sands from the action. She also confirmed there was no discussion of why none of the steps other than immediate suspension was considered and she said she did not advise Mr Matthews that greater particularity as to the facts would be needed in cases of serious misconduct. No minutes were taken of either meeting and the three meetings (the third being the actual suspension meeting) were her sole involvement.
169.The meeting also discussed the draft letter suspending Ms Sands. At that meeting, Mr Matthews made the decisions to investigate and to suspend. Mr Matthews confirmed that there were no notes of that meeting, nor of the other conversations he had at various times with Ms Mannion, Ms Sheehan, Ms Winter and Ms Whitten. He also confirmed that he did not get external advice about whether to suspend Ms Sands. The formal suspension meeting with Ms Sands occurred some 15 minutes after this meeting had concluded.
170.Mr Matthews’s testimony was that he did ‘consider the issue about what might be motivating Ms Sands … and I did not … necessarily form the view that she was … gaining personally out of this, that is, that she was going to benefit financially or material [sic] from that decision-making’.
171.Since Ms Winter's oral advice to Mr Matthews had been provided on 11 or 12 March 2009 and he made the decisions on 25 March 2009, Mr Matthews had acted in a ‘timely’ manner as required under the Agreement. The question is whether he had gathered sufficient information as required under the Agreement.
172.The earlier discussion of the matters of concern to Mr Matthews indicates that he had predominant matters of concern, namely, whether there was a case of ‘fraud and corruption’ and whether if information about these matters became public, there would be damage to the reputation of the Agency.
173.The possibility of fraud and corruption within the workplace would undoubtedly concern any executive member of an agency. Although the courts are reluctant to define it, particularly in a public law context,[18] fraud is regarded at law as wrongdoing of the most serious order. As a consequence it is accepted that ‘fraud unravels everything’[19] and it must be ‘distinctly pleaded and proved’.[20] In a public law context it involves the notion of bad faith, perjury, abuse of power and collusion.[21] Fraud has been described as follows: ‘In general, fraud is the obtaining of a material advantage by unfair or wrongful means; it involves moral obliquity’.[22]
[18] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
[19] Id at 196.
[20] Ibid.
[21] Id 197-198.
[22] John Burke Osborn’s Concise Law Dictionary (6th edn, Sweet & Maxwell,1976),152.
174.The Tribunal notes that the information available to Mr Matthews did not indicate that there had been any material advantage to Ms Sands arising from her actions, and neither did Mr Matthews consider such was the case. It would be difficult on the information to have established that her activities involved bad faith, abuse of power or collusion. However, given the nature of the concerns about the alleged actions raised with Mr Matthews and the need to prove every element of these serious offences, it was unwise of Mr Matthews not to have sought legal advice on the steps he proposed to take. The Tribunal makes no further comment or findings on this issue since despite Mr Matthews’s apparent early concerns about the existence of fraud and corruption, his testimony at the hearing was that he ‘did not believe there had been corruption or fraud in the case of Ms Sands … but …I was very concerned about the possible reputation loss for the organisation’. In that context the Tribunal notes that there was no evidence provided that the matter had reached the public domain. It was the possibility of it doing so which was the issue for Mr Matthews.
175.Returning to the processes in the Agreement, once information has been gathered, it is for the manager/supervisor or the Chief Executive to decide whether to institute an investigation. In this instance, the decision was made by Mr Matthews. The Agreement provides that the Chief Executive is able to institute an investigation provided the person is ‘of the opinion that the alleged misconduct requires an investigation’ (clause 93.3).
176.Reaching an ‘opinion’ in relation to a decision which has an adverse impact on an employee under an agreement sanctioned by legislation requires meeting public law standards. Those standards refer to an opinion ‘formed by a reasonable man who correctly understands the meaning the law under which he acts’.[23] In other words, Mr Matthews needed to take into account all relevant considerations, to make a decision which was reasonable, and one that was based on evidence that was sufficiently probative to meet the standard appropriate for a matter of this seriousness. In that context, the Tribunal notes that although Mr Matthews’s testimony at the hearing was that he did not believe Ms Sands was involved in corruption or fraud, at the time he took the decision it was apparent he was concerned about allegations of this kind.
[23] R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 644-634 per Crennan and Bell JJ; at 620 per Gummow and Kiefel JJ.
177.The Tribunal considers, for the reasons outlined in the examination of the matters of concern to him, that Mr Matthews’s decision failed to meet these standards. Mr Matthews unduly limited the sources of information available to him, in particular by failing to obtain information from the relatively senior staff who had first-hand knowledge of aspects of the actions taken, including Mr Roylance and Ms Bessey.
178.Nor did he seek further clarification of information relating to the matters of particular concern to him from Ms Sands and Ms Taber, despite his being aware that the briefs they provided were inadequate and advice given to him that their testimony was another critical component of the information about which he needed to be satisfied under the Agreement. The absence of notes of the meetings leading up to and including the meeting with Ms Sands, a step in connection with the making of the two decisions, was also not reasonable administrative action in a matter involving allegations of such a serious nature.
179.Accordingly, Mr Matthews did not gather all the information readily available to him and he acted on insufficient information. His failure to contact or seek further corroborating evidence from persons other than Ms Winter on the substance of the allegations, also meant he relied too heavily on the views of the person making the allegations and, as a consequence he was relying on information which was not sufficiently probative for the decisions he had to make. His actions in these regards were not reasonable. For that reason, clause 93.3 was not complied with. Action cannot be reasonable if it is unlawful.
180.The failure to provide advance notice to Ms Sands of the details of the matters of concern and an opportunity to comment was also not reasonable. The allegations of circumstances of fraud, undue influence, and corruption, if they had been supported by sufficient ‘gathered information’, would have justified no notice being provided for fear that evidence would be concealed or witnesses co-opted. That decision could only be made by the Chief Executive (clauses 92.3, 97.2). In other words, Mr Matthews would not have needed to provide natural justice because the circumstances made it inappropriate to do so (clause 97.2). However, given the finding that the ‘gathered information’ was insufficient, the failure to accord Ms Sands natural justice was also a legal error. The upshot of this brief analysis is that since Mr Matthews had not complied with all the processes he was required to follow under the Agreement, and in particular he did not gather ‘sufficient information’, his action in setting up the investigation were not reasonable administrative actions.
Suspension
181.The second decision taken by Mr Matthews was to suspend Ms Sands. Since the suspension was with immediate effect, Mr Matthews would need to have been of the opinion that the alleged actions of Ms Sands met the tests outlined earlier at [119]-[122]. In discussing his reasons for choosing to suspend Ms Sands with pay, Mr Matthews stated at the hearing, ‘It was the key consideration that … the application had appeared to be progressed against instructions and whilst Ms Winter was on leave’. Mr Matthews also stated he felt he was ‘in the position of having a strong need to protect the public confidence in the public housing system’. He said at the hearing that this was ‘a very, very significant factor’ in his decision to suspend Ms Sands.
182.If the actual reliance on ‘serious misconduct’ under clause 92.3 is passed over, and Mr Matthews’s actions are considered to have been taken under clause 97.1 relating to ‘misconduct’ the possibility remains that Mr Matthews was warranted in deciding on immediate suspension for ‘misconduct’ that was, ‘in the Chief Executive’s opinion, … appropriate in the circumstances’ (clause 97.2).
183.In response to questions about what were the ‘appropriate’ circumstances he took into account in deciding to suspend Ms Sands immediately Mr Matthews’s testimony was: ‘the seriousness of the allegations, the potential extent of further allegations, the need for the investigation to take place and to be independent’. He also noted of his decision to suspend Ms Sands that ‘there was some sense in Kelly Laggner’s file note that – that she had been influenced in her decision-making and asked to deep information close to her and not to provide it to other officers appropriately such as Mrs Maher’.
184.These circumstances are the same as those which were considered in relation to Mr Matthews’s concerns. Clause 97.2 raises the issue of the lawfulness of Mr Matthews’s opinion on this issue, given the paucity of evidence on which he relied and the need for him to justify taking the step of immediate suspension rather than another option. Options in clause 97 included the employee taking ‘alternate employment outside the ACTPS for the period of the suspension or until the permission is revoked’, taking accrued long service leave or taking annual leave (clause 97.3(b), (c)). The evidence indicated that Mr Matthews had not discussed these options under clause 97.3, like the failure to do so under clause 92.3, was not reasonable administrative action. The only information provided as to consideration was Mr Matthews’s statement that having considered the issues and ‘having some understanding that an investigation for Ms Sands might be very difficult while she remained in the workplace’ he decided to institute the investigation. This information does not necessarily indicate that Mr Matthews considered other options.
185.On the facts it was clear that Ms Sands was suspended in reliance on clause 92.3 for actions amounting to ‘serious misconduct’. Mr Matthews had said he decided to suspend her because of the seriousness of the matter. Ms Mannion said of clause 97.2 that in her view, immediate suspension was warranted because of the circumstances described by Mr Matthews in the following terms:
The seriousness of the matter potentially went to the issue of fraud or corruption or the misallocation of significant public resources and/or a significant threat to the credibility, integrity and reputation of Housing ACT.
186.The Tribunal notes that this view would be sustainable, had the information on which Mr Matthews relied been sufficiently robust and met the test for sufficiently probative evidence commensurate with the seriousness of the allegation. Failing such a finding, taking suspension in such a form was not appropriate and was not a reasonable step in the circumstances.
187.Nor, given the absence of any evidence that any of these matters were known outside the Agency, was there such imminent danger to the reputation of the Agency as to warrant immediate suspension. Again, as mentioned earlier, the weight of evidence required, and the standard needed to establish these matters, albeit on the balance of probabilities, takes its colour from the serious nature of the allegations and these standards were not met.[24]
[24] Briginshaw v Briginshaw (1938) 60 CLR 336.
188.In addition, as discussed earlier, there were options under either clause 92.3 or clause 97.3 to remove Ms Sands from her usual work environment thus neutralising her ability to make decisions or influence other staff in an improper manner without causing her the embarrassment and humiliating consequences of a suspension with immediate effect. Taking her offline or permitting her to take time off on leave while the matter was investigated would have effected that outcome while ameliorating the damage caused by the immediate suspension. According to Ms Mannion no discussion was held of these options. No other evidence was available that there had been consideration of these possibilities. It was not reasonable administrative action to have failed to consider these options.
189.In addition, even in the case of a suspension, Mr Matthews needed to accord the employee natural justice as set out in clause 97.2. That clause states ‘The Chief Executive will not normally suspend an employee without first informing the employee of the reasons for the proposed suspension and giving the employee the opportunity to be heard’. Mr Matthews said he provided reasons for the suspension to Ms Sands ‘both in the formal correspondence which was provided to Ms Sands and also in my comments in that meeting’ of 25 March 2009.
190.The provision of a letter of suspension at the time of the suspension does not fulfil the requirements set out in clause 97.2. Those actions were in breach of natural justice and were unlawful, absent ‘appropriate circumstances’. The circumstances were not ‘appropriate’ for an immediate suspension for the reasons given. In those circumstances, Ms Matthews’ failure to offer Ms Sands an opportunity to respond to the allegations and time in which to do so prior to any decision to suspend was not in accordance with the terms of the Agreement and was not lawful. As a consequence the actions taken were not reasonable administrative action.
191.The final issue is whether the actions taken in relation to the immediate suspension, namely, escorting Ms Sands from the building during the lunch hour, were reasonable. This was not claimed to be ‘administrative action’ by counsel for Comcare since it occurred after the suspension decision. Although the Tribunal has found that these actions might fall within action ‘in connection with’ the decisions to investigate and to suspend, given the minimal and contradictory evidence relating to these events, the fact that there was no agreement that this was an administrative action being relied upon, and the Tribunal’s findings on the two agreed administrative decisions or actions, there is no need for the Tribunal to consider these circumstances.
192.The decision under review is set aside and in substitution the Tribunal finds that Comcare is liable under section 14 of the Act for Ms Sands’s injury.
I certify that the 192 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member
Signed: .......................[sgd].........................................................
Caitlin Baillie, AssociateDates of Hearing 3, 4 March, 8-10 August 2011
Date of Decision 14 October 2011
Counsel for the Applicant Leo Grey
Solicitor for the Applicant Jamie Ronald
Colquhoun Murphy Barristers and Solicitors
Counsel for the Respondent David Richards
Solicitor for the Respondent Amanda Danti
Dibbs Barker Solicitors
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