Sedaitis and Comcare

[2016] AATA 465

Sedaitis and Comcare (Compensation) [2016] AATA 465 (1 July 2016)

Division	GENERAL DIVISION
File number	2015/0414
Hanna Sedaitis
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	1 July 2016
Place	Canberra

Comcare’s decision on 22 January 2015 is affirmed.

...............[sgd].........................................................

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employee — claim for psychological condition as a result of bullying and harassment — whether accepted disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of employment — decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14

CASES

Comcare v Martinez (No 2) (2013) 212 FCR 272

Drenth v Comcare (2012) 128 ALD 1

REASONS FOR DECISION

Dr James Popple, Senior Member

1 July 2016

Summary

1. The applicant had a meeting with her manager and her manager’s manager. At that meeting, the applicant was told about complaints that she had dealt with some staff in a rude and disrespectful manner. Comcare concedes that the applicant suffered a “major depressive disorder, single episode” as a result of the meeting, and that her condition is a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

2. However, the meeting—and what the applicant’s manager and manager’s manager did at the meeting—was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.

   Background

3. Mrs Hanna Sedaitis started working for what is now the ACT Government’s Health Directorate (ACT Health) in 2002.

4. On 22 July 2014, she made a claim for compensation for “psychological injury”. In her claim form, she stated that her condition developed as a result of “bullying and harassment by senior officer”. On 5 September 2014, Comcare denied that it was liable to pay her compensation under s 14 of the SRC Act.

5. On 14 November 2014, Mrs Sedaitis requested a reconsideration of that determination.  On 22 January 2015, Comcare affirmed its determination.

6. On 30 January 2015, Mrs Sedaitis applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

   Decision under review

7. The decision under review is Comcare’s decision on 22 January 2015 to affirm its determination that Comcare is not liable to pay compensation to Mrs Sedaitis.

   Issues

8. Comcare concedes that Mrs Sedaitis suffered a “major depressive disorder, single episode” which was contributed to, to a significant degree, by her employment by ACT Health. That means that her condition is a “disease” as defined in s 5B of the SRC Act.

9. The issue in this review is whether Mrs Sedaitis’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A of the SRC Act, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14.

10. The parties agree that, if Mrs Sedaitis’s disease is an injury for the purposes of the SRC Act, the date of that injury is 12 September 2013—the date when she first sought medical treatment for the disease.

    Reasonable administrative action taken in a reasonable manner

11. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.

12. On 11 September 2013, Mrs Sedaitis met with two other ACT Health staff: Ms Karen Faichney and Ms Trudi Thompson.  Mrs Sedaitis says that this meeting was a formal counselling session, with elements of a formal investigation.  Comcare says that it was an informal meeting.  I will call it the meeting.

13. What transpired at the meeting is crucial to this review.  The parties agree that Mrs Sedaitis suffered her disease as a result of the meeting, but Comcare says that the meeting (and what Ms Faichney and Ms Thompson did at the meeting) was reasonable administrative action taken in a reasonable manner in respect of Mrs Sedaitis’s employment.[1]

    [1] Mrs Sedaitis does not say that there was any other cause of her disease apart from the meeting. In any event, if only one cause of a disease satisfies the exclusion in s 5A(1), the exclusion applies and the disease is not an “injury”. See Drenth v Comcare (2012) 128 ALD 1 at 7 [29] per Rares, McKerracher and Murphy JJ.

    Events before the meeting

14. I make the findings set out in [15]–[20] below, on the balance of probabilities.  These findings are based on the evidence before me, especially statements made by Mrs Sedaitis, Ms Thompson, Ms Faichney and Ms Jann Reardon, and evidence that they gave at the hearing.  These findings are generally not contested.

15. As noted above, Mrs Sedaitis started working for ACT Health in 2002.  From January 2008, she worked as a manager at the Tuggeranong Health Centre (the Centre) in Canberra.

16. Ms Reardon was Health Centre Coordinator, and Mrs Sedaitis’s manager.  From April 2013, Ms Thompson was Senior Administration Manager, and Ms Reardon’s manager.  From August 2012, Ms Faichney was Director of Community Health Centres, and Ms Reardon’s manager until Ms Thompson commenced (in April 2013), after which Ms Faichney was Ms Thompson’s manager.

17. On 24 and 25 January 2013, the Centre relocated to temporary premises, to allow a major refurbishment of its usual premises.  It returned to its usual premises in March 2014.

18. In September 2013, Ms Faichney received some complaints from staff members at the Centre about Mrs Sedaitis’s behaviour towards other staff members.  As the result of a restructure, Ms Reardon’s position became excess and she was moved from her role as Mrs Sedaitis’s manager.  Ms Faichney asked Ms Thompson to take carriage of the complaints about Mrs Sedaitis.

19. On 5 September 2013, Ms Thompson sent Mrs Sedaitis an e-mail headed “Discussion”:

    I would like to meet with you next Wednesday morning the 11th to talk to you about a few issues that have been bought to mine and [Ms Faichney’s] attention.  There has been a few issues raised concerning the treatment of administration staff at [the Centre].  I would like to meet so that we can discuss this and sort out what is happening and possible solutions to any problems.  [Ms Faichney] will also attend this meeting.

    I will send you a calendar invite.  Could you please book a meeting room.[2]

    [2]     Spelling and grammatical errors in the original.

20. On 5 and 6 September, Ms Thompson had e-mail correspondence with one of the Centre staff.  On 9 September, Ms Thompson met with that staff member and two others at the Centre, and discussed (amongst other things) Mrs Sedaitis’s dealings with Centre staff.

21. There is much conflicting evidence about several events in the months before the meeting.  Ms Faichney says that Mrs Sedaitis did not appear to manage the Centre relocation (in January 2013) very effectively.  Mrs Sedaitis says that she did manage the relocation well, and that she did so without adequate support from management.  Ms Faichney says that, during the relocation, she witnessed Mrs Sedaitis speaking to another staff member in a way that Ms Faichney thought was inappropriate.  Mrs Sedaitis denies that she spoke inappropriately.  Ms Faichney spoke to that staff member at the time, but he did not wish to take the matter further.  Ms Faichney asked Ms Reardon to take the matter up with Mrs Sedaitis.  Ms Faichney says that, when she learnt in September 2013 that there were no records of discussions between Ms Reardon and Mrs Sedaitis on that matter, she decided to deal with the September 2013 complaints as if the “earlier episode” had not occurred: “essentially ‘starting from scratch’”.[3]

    [3] See also [53] below.

22. Mrs Sedaitis says that she was working at the Centre under the pressure of constant staff shortages, regular poor attendance by one member of staff, and the need to closely supervise another.  She says that she was unsupported by management in the transition to a new “models of care” approach to service delivery by health centres.  Mrs Sedaitis also says that Ms Faichney treated her dismissively at meetings, and that (from about May 2013) Mrs Sedaitis felt anxious and depressed by the way she was treated by her management, and by some other staff members.  These assertions are generally supported by Ms Reardon, and generally countered by Ms Faichney and Ms Thompson.

23. I do not need to make any findings about the events discussed in [21] and [22] above. That is because the decision in this review does not turn on which conflicting view of those events is correct.

24. There is also conflicting evidence about what happened immediately before the meeting.  Mrs Sedaitis says that, when Ms Faichney and Ms Thompson arrived at the Centre for the meeting, she greeted them both but only Ms Thompson returned her greeting.  She says that Ms Faichney “just stood in front of me with a stern expression” and “[h]er manner was very inhospitable”.  Both Ms Faichney and Ms Thompson say that they each greeted Mrs Sedaitis politely.  Ms Faichney says that she then asked Mrs Sedaitis where in the Centre they would be meeting.  (The Centre’s meeting room was in use, so the meeting was held in another staff member’s office.)  I find, on the balance of probabilities, that all three women behaved politely and professionally during this exchange.

25. Mrs Sedaitis says that she was aware that complaints had been made about her, but she assumed that the meeting was primarily called to discuss issues that she had previously raised about staffing levels at the Centre and the poor attendance of one staff member.  Yet she also knew (from Ms Thompson’s e-mail) six days before the meeting that Ms Faichney and Ms Thompson wanted to talk with her about “the treatment of administration staff” at the Centre.  This could have been expressed more clearly in the e-mail, but (given Mrs Sedaitis’s role at the Centre) it should have been sufficiently clear to her that this was a reference to her treatment of staff.

26. As the three women went into the meeting:

    ·Mrs Sedaitis felt that she was doing a good job in difficult circumstances, and without adequate support from her managers.  She was expecting to discuss some of her concerns, but she knew that Ms Faichney and Ms Thompson wanted to discuss her treatment of Centre staff.

    ·Ms Thompson wanted to raise with Mrs Sedaitis the complaints that Centre staff had made to her, and to hear Mrs Sedaitis’s response.

    ·Ms Faichney also wanted to raise those complaints with Mrs Sedaitis, and to hear her response.  Ms Faichney wanted to discuss strategies to assist Mrs Sedaitis to better manage her relationships with staff.  Ms Faichney considered that the complaints were serious and needed to be acted upon.  Ms Faichney also had personal experience of what she considered to be Mrs Sedaitis speaking inappropriately to a staff member, but she did not think she could raise that issue at the meeting because there was no record of it having been raised with Mrs Sedaitis by Ms Reardon months earlier.

    The meeting

27. I make the findings set out in [28]–[33] below, on the balance of probabilities.  These findings are based on the evidence before me, especially statements made by Mrs Sedaitis, Ms Faichney and Ms Thompson, and evidence they gave at the hearing.  These findings are generally not contested.

28. The meeting started at 10:00 am on 11 September 2013 at the Centre.  Mrs Sedaitis, Ms Faichney and Ms Thompson were present.  Ms Faichney conducted the meeting.

29. Ms Faichney told Mrs Sedaitis that she had received complaints from two people about Mrs Sedaitis’s behaviour towards staff.  Ms Thompson told Mrs Sedaitis about the meetings that she had had with Centre staff, and what those staff had said about Mrs Sedaitis’s behaviour at work.  Essentially the complaints were that Mrs Sedaitis had dealt with staff in a rude and disrespectful manner.

30. Mrs Sedaitis denied that she had ever been rude or disrespectful to staff, and denied the specific allegations.  Mrs Sedaitis said that she did not understand why staff had not raised these issues with her directly.  Ms Faichney noted that there had been a large number of complaints.  She commented that a person’s behaviour may not always be perceived as intended, and said that managers should reflect on how their behaviour is perceived by staff.

31. It was agreed that:

    ·there would be no repercussions for Centre staff in relation to the complaints;

    ·Centre staff would be encouraged to report any further concerns if and when they arose;

    ·Mrs Sedaitis would attend a specified course intended to improve her management skills;

    ·she would keep a diary to “allow her to practice self reflection”;

    ·she recognised that there was “a power imbalance between herself and her staff”; and

    ·she would behave respectfully in her communications with staff.

32. Mrs Sedaitis was visibly upset for some of the meeting, and Ms Faichney offered her some tissues.  No-one suggested that the meeting be adjourned.  Mrs Sedaitis appeared less upset by the end of the meeting.

33. The meeting finished after about an hour.

34. I make no findings about the veracity of the complaints that Centre staff made about Mrs Sedaitis, except to find (as I have done, above[4]) that the complaints were made.

    [4] See [18] and [20] above.

35. Mrs Sedaitis says that she asked to see the notes that Ms Faichney and Ms Thompson were reading from during the meeting, and that this request was denied.  Neither Ms Faichney nor Ms Thompson recalled that happening, but each agreed that it may have happened.  I find that it did.

36. Mrs Sedaitis says that she was not given an adequate opportunity to respond to the matters discussed at the meeting, and that Ms Faichney talked over her.  Ms Faichney and Ms Thompson deny this.  Ms Thompson says that the conversation “was not one-sided”; that there was “no anger or shouting”; that Mrs Sedaitis “was a bit flustered at times and would go off on tangents”; and that, if Mrs Sedaitis “got off track, Ms Faichney would pull her up to bring her back into focus”.

37. Mrs Sedaitis also says that, at one point in the meeting, Ms Faichney “pointed her finger directly in [Mrs Sedaitis’s] face and yelled at her”.  Ms Faichney denies this.  Ms Thompson does not remember Ms Faichney pointing a finger at Mrs Sedaitis, but says that “[s]he may have gestured with her hands, but only to assist in explaining things”.

38. I accept Mrs Sedaitis, Ms Faichney and Ms Thompson as witnesses of truth. However, after considering their conflicting evidence summarised at [36] and [37] above, I prefer the evidence of Ms Thompson. Accordingly, I do not find that Ms Faichney behaved in the meeting as Mrs Sedaitis asserts she did. I find that Ms Faichney (with the assistance of Ms Thompson) conducted the meeting politely and professionally. Of course—and as Ms Faichney said at the meeting—a person’s behaviour may not always be perceived as they intend. Even though the meeting was conducted politely and professionally, I accept that, during the meeting, Mrs Sedaitis felt (as she says) “alone and unsupported”, “humiliated, vulnerable and anxious”.

    Events after the meeting

39. The parties agree that Mrs Sedaitis suffered her disease as a result of the meeting, and that the date of injury (if her disease is an injury) was the day after the meeting, when she first sought medical treatment for the disease.

40. Some of the evidence presented at the hearing relates to events that happened after the meeting.  That evidence can only be relevant to this review to the extent that it relates to events before and during the meeting.  So, for example, Mrs Sedaitis says that the way that a follow-up meeting was conducted on 10 December 2013 supports her argument that the meeting on 11 September 2013 was a formal counselling session.

41. I deal with this issue[5] (and others) below, but I do not think that any of the evidence about events that occurred after the meeting assists me in answering the question that I have to answer in this review: was the meeting—and what Ms Faichney and Ms Thompson did at the meeting—reasonable administrative action taken in a reasonable manner in respect of Mrs Sedaitis’s employment?

    [5]     See [48] below

    Was the meeting reasonable administrative action taken in a reasonable manner?

42. Mrs Sedaitis says that there are a number of reasons why the meeting was not reasonable administrative action taken in a reasonable manner.  I have had some difficulty comprehending all of her counsel’s arguments, but I think that those arguments can be summarised as follows:

    ·Ms Faichney and Ms Thompson should have made further enquiries about Mrs Sedaitis’s employment history and circumstances before calling the meeting;

    ·The meeting was a disproportionate response to the complaints;

    ·Ms Faichney should have discussed the issues with Centre staff before (or instead of) conducting the meeting;

    ·Ms Faichney and Ms Thompson exhibited bias in their dealings with Mrs Sedaitis;

    ·Mrs Sedaitis should have been given details of the complaints before the meeting;

    ·Mrs Sedaitis should have been given the opportunity to bring a support person to the meeting;

    ·Ms Faichney conducted the meeting in an unreasonable manner;

    ·Mrs Sedaitis should have been provided with food and water at the meeting;

    ·the meeting should have been adjourned when it was clear that Mrs Sedaitis was upset; and

    ·Mrs Sedaitis should not have had been required to attend a management skills course or keep a diary.

    (Some of these arguments overlap.)

    Mrs Sedaitis’s employment history

43. Mrs Sedaitis says that she was working effectively, often long hours, and at a Centre that was understaffed.  She says that Ms Faichney (and, to a lesser extent, Ms Thompson) were not sufficiently aware of how much work she was doing, and how well she was doing it.  She says that they should have made further enquiries about her employment history, and her work performance, before calling the meeting.  If they had, she says, they may have conducted the meeting differently, or they may have decided not to have the meeting at all.

44. But the complaints were not about Mrs Sedaitis’s work ethic or her productivity; they did not relate to the level of staffing at the Centre.  The complaints were about Mrs Sedaitis’s interactions with Centre staff.  A reasonable response to the receipt of those complaints did not depend on whether Mrs Sedaitis was or was not working effectively in difficult circumstances without adequate support.

45. In any event, on the evidence before me, both Ms Faichney and Ms Thompson would appear to have had at least an adequate understanding of Mrs Sedaitis’s employment history and circumstances before the meeting.

    Proportionality of the meeting as a response to the complaints

46. The applicable enterprise agreement makes provision for the investigation of complaints and the counselling of employees.  Mrs Sedaitis says that the meeting was a formal counselling session or an investigation, and a disproportionate response to the complaints made about her.  Comcare says that the meeting was not a counselling session.  Comcare characterised the meeting as an informal meeting.

47. Section H of the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013–2017 (the Enterprise Agreement) is headed “Workplace Values and Behaviour”.  Clause H2.1 relevantly provides:

    In cases where an allegation of inappropriate behaviour is made, the manager/supervisor will initiate a preliminary assessment process to determine whether further action is required.

    Clause H2.2(b) specifies one possible outcome of a preliminary assessment:

    … if the manager/supervisor determinates that the allegations … can be resolved through counselling, other remedial action, or assistance to the employee then the manager/supervisor will implement such action.

    Clause H2.2(e) specifies that a manager/supervisor can recommend to the agency head that a matter be investigated.  Clause H2.3 provides:

    The manager/supervisor will inform the employee where a preliminary assessment process is commenced under subclause H2.1 if it is appropriate to do so.

    Clause H3 relates to “Counselling”.  Clause H3.3 requires the manager/supervisor (or the agency head) to create a formal record of counselling.

1. I do not think that the meeting was a formal counselling session.  Ms Faichney created a formal record of the meeting, but I do not think that the requirement to create a formal record of a counselling session precludes the creation of a formal record of another type of meeting.  It is possible that the meeting was a preliminary assessment, though there is no suggestion that Mrs Sedaitis was informed (pursuant to clause H2.3) that a preliminary assessment process had commenced—at least, not in those terms.  If the meeting was not a preliminary assessment, it was merely an informal meeting.  I do not think that the conduct of a follow-up meeting on 10 December 2013 suggests that the 11 September meeting was a counselling session: the follow-up meeting was entirely consistent with the earlier meeting being a preliminary assessment or an informal meeting.

2. Even if the meeting was a preliminary assessment, I do not think that that made it a disproportionate response to the complaints made against Mrs Sedaitis.  Clause H2 does not require that allegations be substantiated, or even investigated, before a preliminary assessment process is initiated.  There is nothing unreasonable about discussing such complaints with the person complained about, whether as part of a preliminary assessment or otherwise.

   Discussions with Centre staff

3. Mrs Sedaitis says that Ms Faichney should have discussed the issues complained about with Centre staff before (or instead of) conducting the meeting.  Specifically, Mrs Sedaitis says that:

   It was open to Ms Faichney to direct the convening of a “clear the air” meeting … with the staff and [Mrs Sedaitis].  A round table, with a facilitator/mediator.  No notes or repercussions.  Inform all staff and [Mrs Sedaitis] that staffing problems were not remediable in the near future.  That all staff should try and understand that [Mrs Sedaitis] had the heavy responsibility of keeping the Centre open and functioning effectively (files, appointments, etc.).  That [Mrs Sedaitis] needed the staff to apply themselves fully.  …  That [Mrs Sedaitis] was an experienced and capable Manager and that she was endeavouring to ensure that staff performed their duties.  And thanking staff for their efforts thus far under difficult circumstances.

4. But before Ms Faichney could have had done this, she would have to either:

   ·have decided that there was no substance to the complaints; or

   ·have decided that (even if there was substance to the complaints) Mrs Sedaitis’s alleged behaviour was justified by her work performance, the level of staffing at the Centre, or the capacity of those staff.

   I do not think that either Ms Faichney or Ms Thompson were in a position to reasonably come to a settled view about the veracity of the complaints at the time of the meeting.[6]  And, as noted above,[7] even if Mrs Sedaitis was working effectively in difficult circumstances without adequate support, that would not justify her alleged behaviour.

   [6] I have made no findings about the veracity of the complaints: see [34] above.

   [7] See [44] above.

   Bias

5. Mrs Sedaitis says that Ms Faichney and Ms Thompson exhibited bias in their dealings with her.  She says that that neither of them brought an impartial mind to the resolution of the question whether the complaints made against Mrs Sedaitis were valid.  This argument is misconceived, because the question whether the complaints were valid was not resolved before or during the meeting.

6. It is possible that Ms Faichney or Ms Thompson (or both) formed a view before or during the meeting about the veracity of the complaints.  Ms Faichney referred, during the meeting, to the large number of complaints.  She had personal experience of what she considered to be Mrs Sedaitis speaking inappropriately to a staff member.  And Mrs Sedaitis points to events that occurred after the meeting which she says support her argument that Ms Faichney and Ms Thompson had formed a view about the veracity of the complaints.

7. But, I do not have to reach a conclusion about whether they had already formed a view about the veracity of the complaints, because the result of the meeting—the outcomes agreed to at the meeting—did not require that the complaints had been upheld.  Mrs Sedaitis says that the meeting outcomes impliedly accepted the truth of what had been alleged.  I disagree: some of the outcomes resulted from the complaints having been made; some did not require even that; none required that the allegations had been substantiated.  Even the agreement that Mrs Sedaitis would behave respectfully in her communications with staff did not amount to a concession—or a decision—that she had not behaved respectfully.  In fact, the record of the meeting, prepared by Ms Faichney, notes that Mrs Sedaitis maintained that she had always been respectful in her communications with staff.

8. At the meeting, Mrs Sedaitis was told about the complaints, and given an opportunity to respond to them.  But the veracity of those complaints was not determined.  Their validity did not have to be upheld for the outcomes of the meeting to be agreed.  So, whether the meeting was reasonable administrative action taken in a reasonable manner cannot be affected by whether Ms Faichney or Ms Thompson had formed a view about the validity of the complaints.

   Details of the complaints

9. Mrs Sedaitis was aware that complaints had been made about her, and she knew that Ms Faichney and Ms Thompson wanted to discuss her management of Centre staff, but she was not provided with detail of the complaints before the meeting.[8]  And, Mrs Sedaitis was not allowed to see the notes that Ms Faichney and Ms Thompson were reading from during the meeting, even after she asked to see them.[9]  Mrs Sedaitis says that this behaviour was unreasonable—that she should have been given details of the complaints before the meeting.

   [8] See [25] above.

   [9] See [35] above.

10. Ms Thompson says that the Centre staff she had spoken to had asked that their names not be disclosed to Mrs Sedaitis.  Ms Thompson says that she “provided sufficient detail of the allegations [to Mrs Sedaitis] at the meeting, without giving her the people’s names, because I was conscious of their own trepidation”.

11. I think that it would not have been reasonable to determine the veracity of the complaints at the meeting without first giving Mrs Sedaitis more information about the complaints than she was given, including the names of the complainants.  But, as I have explained above,[10] the meeting did not determine the veracity of the complaints.  The complaints were outlined, and denied, and the meeting participants proceeded to agree outcomes on the basis that the complaints had been made, but not determined.  In those circumstances, I think it was not unreasonable to refuse to provide more detail about the complaints (including the complainants’ names) to Mrs Sedaitis at the meeting.

    [10] See [54] above.

    Support person

12. Mrs Sedaitis says (and I accept) that, if she had known before the meeting what was to happen at the meeting, she would have brought a support person with her to the meeting.  Neither Ms Faichney nor Ms Thompson thought that a support person was necessary because, as Ms Faichney put it:

    The meeting … was the first discussion about the complaints.  It was designed to put the complaints to [Mrs Sedaitis] and obtain her response.  The other purpose of the meeting was to discuss strategies on how we could assist [her] to manage her relationships with more junior staff.

13. Under Clause H3.2 of the Enterprise Agreement, an employee is entitled to have a support person present at a formal counselling session.  But, as I have explained above,[11] the meeting was not a formal counselling session.  It was a preliminary assessment or an informal meeting.

    [11] See [48] above.

14. It was open to Ms Faichney or Ms Thompson to invite Mrs Sedaitis to bring a support person to the meeting, but I do not think it was unreasonable that they did not.

    Conduct of the meeting

15. I have already found that Ms Faichney and Ms Thompson behaved politely and professionally immediately before and during the meeting.[12]  I have not found that Ms Faichney pointed her finger directly in Mrs Sedaitis’s face and yelled at her, and talked over her during the meeting, as Mrs Sedaitis claims that she did.  I think that Ms Faichney (with the assistance of Ms Thompson) generally conducted the meeting in a reasonable manner.

    [12] See [24] and [38] above.

16. Mrs Sedaitis says that no positive aspects of her performance were raised during the meeting, only negative aspects.  It is possible that this is correct.  I think that it would have been preferable if Ms Faichney or Ms Thompson had raised at the meeting some positive aspects of Mrs Sedaitis’s work performance.  However, I do not think it was unreasonable if they did not do so.

    Food and water

17. The meeting was held in an office at the Centre.  No food or drinking water were provided.  Mrs Sedaitis says that she should have been provided with food and water at the meeting.  No evidence was brought that Mrs Sedaitis (who is diabetic) had any requirement for food or water during a meeting of about one hour, or that either Ms Faichney or Ms Thompson were aware—or should have been aware—of such a requirement.  I note, also, that Mrs Sedaitis organised the room for the meeting.

18. In those circumstances, I do not think that it was unreasonable that no food or drinking water were provided.

    Not adjourning the meeting

19. At no stage during the meeting did any of the attendees suggest that the meeting should be adjourned.  Mrs Sedaitis says that the meeting should have been adjourned when it was clear that she was upset.

20. Both Ms Faichney and Ms Thompson noticed that Mrs Sedaitis became upset during the meeting, though she appeared less upset by the end of the meeting.  I note that whether an administrative action was taken in a reasonable manner is not established solely on the basis of the impact on the employee.[13]  I also note that it was open to Mrs Sedaitis to suggest that the meeting be adjourned.

    [13]    Comcare v Martinez (No 2) (2013) 212 FCR 272 at 291 [73] per Robertson J.

21. It would have been preferable if, when Mrs Sedaitis first became upset, she had been asked whether she wanted the meeting to be adjourned.  However, in all of the circumstances, I do not think that it was unreasonable that she was not asked.

    The management skills course and the diary

22. Mrs Sedaitis says that the meeting solutions were imposed—that “the process of ‘agreed outcomes’ was in reality a process that produced directions, disguised as outcomes”.  Specifically, she says that it was not reasonable that she be required to attend a management skills course or to keep a diary.

23. Even assuming that these solutions were imposed on Mrs Sedaitis, rather than agreed with her (as I have found that they were[14]), I do not think that that was unreasonable.

    [14] See [31] above.

24. Even if there had been no complaints made about Mrs Sedaitis, I do not think it would have been unreasonable for Ms Faichney and Ms Thompson to require her to attend a management course.  (I note that other health centre managers had undertaken that course.)

25. I am not convinced that it would have been reasonable to require Mrs Sedaitis to keep a diary to “allow her to practice self reflection” if no complaints had been made.  However, given that the complaints had been made—and regardless of whether those complaints were valid—I do not think it would have been unreasonable to require Mrs Sedaitis to keep a diary.  Even if Mrs Sedaitis found it humiliating to be required to keep a diary for self-reflection, that would not necessarily make that requirement unreasonable.[15]  In circumstances where staff were complaining that she had dealt with them in a rude and disrespectful manner I do not think that would have been an unreasonable requirement—regardless of who was at fault.

    [15]    Comcare v Martinez (No 2) (2013) 212 FCR 272 at 292 [76] per Robertson J.

    Conclusion

26. As a result of the meeting, Mrs Sedaitis suffered a disease: a “major depressive disorder, single episode”, which was contributed to, to a significant degree, by her employment by ACT Health.  But the meeting—and what Ms Faichney and Ms Thompson did at the meeting—was reasonable administrative action taken in a reasonable manner in respect of Mrs Sedaitis’s employment.

27. The meeting could have been conducted more reasonably.  For example, Ms Faichney or Ms Thompson could have invited Mrs Sedaitis to bring a support person to the meeting; they could have raised some positive aspects of her work performance; and, when Mrs Sedaitis’s first became upset, they could have asked her whether she wanted the meeting adjourned.  But the fact that the meeting could have been conducted more reasonably does not make it unreasonable.[16]

    [16]    Comcare v Martinez (No 2) (2013) 212 FCR 272 at 293 [82] per Robertson J.

28. Mrs Sedaitis’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. Comcare is not liable to pay her compensation.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

...........[sgd].............................................................

Associate

Dated 1 July 2016

Dates of hearing	15–17 March 2016
Date final submissions received	2 May 2016
Counsel for the Applicant	Mr Christopher Ryan
Solicitors for the Applicant	Lander and Co, Solicitors
Counsel for the Respondent	Ms Rhonda Henderson
Solicitors for the Respondent	Sparke Helmore, Lawyers