Shardlow and Comcare
[2012] AATA 10
•12 January 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 10
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4731
GENERAL ADMINISTRATIVE DIVISION ) Re WARREN SHARDLOW Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date12 January 2012
Place Canberra
Decision The Tribunal sets aside the decision of 19 October 2010, and in substitution it is ordered that Comcare is liable for the condition of ‘aggravation of major depressive disorder, recurrent episode’ from which Mr Shardlow has been suffering since 14 January 2010.
.............................[sgd]..............................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – depressive disorder – whether injury or disease suffered, being psychological ailment or aggravation – whether materially contributed to by employment – whether liability excluded because the significant cause of the condition was due to reasonable administrative action conducted in a reasonable manner – interpretation of ‘administrative action’ – failure to obtain benefit – appraisal of employee performance
Acts Interpretation Act 1901 (Cth) s 15AA
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4,5A, 5B,
DC Pearce, RS Geddes Statutory Interpretation in Australia (7th edn, LexisNexis, 2011)
Macquarie Concise Dictionary (5th edn, Macquarie, 2009)
Comcare v Chenhall (1992) 109 ALR 361
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151
Dyer and Comcare [2011] AATA 748
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
Re Archer and Comcare [1999] AATA 940
Re Carpenter and Comcare (2010)116 ALD 190
Re Hardy and Comcare [2010] AATA 342.
Re Piccolo and McVeigh [2001] AATA 623
Re Radulovic and Comcare (2010) 120 ALD 311
Re Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 248
Re Soswowski and Commissioner of Superannuation [1987] AATA 206
Trewin v Comcare (1998) 84 FCR 171
Workcover Corporation of South Australia v Summers (1995) 65 SASR 243
REASONS FOR DECISION
12 January 2012 Professor RM Creyke, Senior Member
1. Mr Warren Shardlow lodged a claim for compensation, dated 14 May 2010, for ‘adjustment disorder mixed with anxiety and depression’. He claimed the condition related to his employment with The Canberra Hospital, conducted under the auspices of the ACT Department of Health (Department).
2. The application for a condition described as ‘adjustment reaction’ and an ‘aggravation of major depressive disorder, recurrent episode’ was rejected by Comcare on 28 July 2010. Comcare deemed the date of injury to be 14 January 2010.
3. The decision was upheld by Comcare in a ‘reviewable decision’ on 19 October 2010.
4. Comcare accepted that Mr Shardlow suffered from a psychological condition that was significantly contributed to by his employment. Comcare was further satisfied, however, that Mr Shardlow’s condition resulted from reasonable administrative action, taken in a reasonable manner, by the Department (section 5A of the Act).
5. Mr Shardlow sought further review by the Tribunal on 28 October 2010. The matter was heard in Canberra on 1-2 December 2011.
Issues
6. The agreed issues are:
·Did Mr Shardlow suffer an injury or disease, being a psychological ailment (or aggravation), within the terms of section 4(1) of the Act?
·If so, when was the injury or disease sustained?
·Was any injury or disease contributed to, to a significant degree, by Mr Shardlow’s employment?
·Is Mr Shardlow entitled to compensation under section 14 of the Act?
·Is Mr Shardlow’s injury or disease excluded from compensation because it was sustained through reasonable administrative action conducted in a reasonable manner (section 5A of the Act)?
History
7. Mr Shardlow claimed he suffered from adjustment disorder with anxiety and depression due to his employment with the Department arising out of events in the latter part of 2009 and early 2010.
8. Mr Shardlow was born in 1966. He commenced employment with The Canberra Hospital as a registered nurse in or about September 2005.
9. Mr Shardlow said he was appointed as a senior Casemix officer (RN3.1) in the Casemix unit of The Canberra Hospital from about September 2007, initially on a temporary basis, but permanently from 2008. Comcare alleges that Mr Shardlow was appointed to the Casemix unit as its leader on a temporary 12 month contract in January 2008. It was agreed that Mr Shardlow had been made permanent prior to the events in this matter, so nothing turns on this difference of view.
10. The role of the Casemix unit was to review patient clinical records with a view to developing benchmarks against which to measure the hospital’s performance. In particular the unit was to assist with collection of data and application of criteria for deciding patient care types, and the education of hospital employees about the criteria and statistical methodology to be employed in their data collection.
11. Initially the unit was set up on a temporary basis. In November 2008 the unit became permanent. His supervisor at all material times was Ms Lesley Dickens, a Senior Officer Grade B (SOGB), and the manager of the unit. She was located remotely but kept in contact with the unit through formal monthly meetings and informal meetings during lunch breaks and at other times.
12. On 11 September 2009, at a half day planning meeting of all members of the Casemix unit, there was discussion about current tasks and reallocation of some duties. Mr Shardlow’s recollection is that tasks were taken from him and reallocated without consultation. Ms Dickens’s recollection was that Mr Shardlow had been concerned about his heavy workload and there was discussion about reallocation of some of his duties including attendance at ward rounds.
13. Mr Shardlow said that the meeting involved an ‘erosion’ of his leadership role. However, in response to Ms Dickens’s account of that meeting he also said: ‘At no point in this meeting was there any mention of me no longer providing my leadership role’. This was confirmed by Ms Dickens’s comment in her statement that: ‘Mr Shardlow’s leadership was mostly focussed on administrative duties and that did not change after the Planning Meeting’.
14. On 24 November 2009, following a suggestion he made at a meeting with senior specialist consultants from the cardiothoracic unit, including Dr Peter Subramaniam, Ms Dickens and himself about how to deal with some data discrepancies concerning patients in the cardiothoracic area, Mr Shardlow was appointed to lead a small team of three doing a special Casemix project for that area. He said this was his first project as a team leader. It was also the first project of this kind for the unit. Dr Subramaniam was the person with whom the team liaised about the project.
15. Ms Dickens told Mr Shardlow she expected that as the manager of the Casemix unit, and as she was located in a different building from the other members of the team, he should keep her informed about the progress of the project.
16. Mr Shardlow’s principal duties were to monitor and evaluate care type changes, prepare activity reports and supervise the junior staff. His duty statement said he was to ‘provide leadership and guidance to a small team of Casemix officers’. This special project work was in addition to the team member’s normal responsibilities. The project was intended to be short-term, that is, roughly four to six weeks. The work started immediately.
17. A member or members of the team attended morning rounds in the cardiothoracic area, and had specific meetings with the cardiothoracic area to educate staff about documentation and the project. Initially Mr Shardlow attended those meetings on his own, but he arranged for Ms Ekaterina Stromova (HPO3), a member of the team, to accompany him.
18. Regular meetings were held by the team to discuss the project. Mr Shardlow said there was a daily five minute early morning meeting at which information was exchanged. It was also quite common for the team to meet at morning tea or at lunch when informal discussions about the project might take place. This occurred about once or twice a week. Mr Shardlow said he attended the first two daily meetings but he then asked Ms Stromova to attend the next two meetings on his behalf. He said Ms Stromova did not report back to him about those meetings.
19. Mr Shardlow also ceased attending the morning tea meetings in November 2009. He said he did so when he thought that Ms Dickens was not supporting his leadership role. Mr Shardlow said his concerns about lack of support first arose when he became aware in September 2009 that Ms Stromova was reporting directly to Ms Dickens rather than to him.
20. On 30 November 2009 there was a review of the roles and functions of members of the Casemix unit. All members of the unit were interviewed but no jobs were at risk. The full report was not made available to Mr Shardlow until about May 2010. Mr Shardlow said he received a summary of the report in March 2010.
21. After the interviews, on 30 November 2010, Mr Shardlow approached Ms Dickens to express his concern about a lack of communication and ‘team play’ from Ms Stromova, a view which Ms Dickens denied. However, according to his statement she said she would remind team members about the need to speak with Mr Shardlow if he was not present at informal meetings when project matters were discussed.
22. In early December Mr Shardlow said he encountered Ms Stromova at Café Hoz, a café adjacent to the hospital, discussing the cardiothoracic project with Ms Dickens. He said he became angry because he thought he was being bypassed. He was adamant this encounter was prior to but on the same day as his conversations with Ms Dickens, and later Dr Subramaniam, about his removal from the project. An undated incident report by Mr Shardlow notes that on 2 December 2009, Ms Dickens informed Mr Shardlow that another person would be taking over the cardiothoracic project of which he had formerly been in charge.
23. Mr Shardlow at the hearing said that in the course of this conversation initially Ms Dickens had directed him that he was no longer on the project. However, after he had become angry and questioned that direction, she ‘backpedalled’ and suggested that he and Ms Stromova come to some accommodation which involved them both continuing on the project. Mr Shardlow’s view, however, was that any such agreement only lasted until he had the conversation with Dr Subramaniam when he understood he was no longer to be on the project.
24. Ms Dickens said in her November 2010 statement of the Café Hoz incident:
On about 23 December 2009, I attended morning tea at Café Hoz. When I arrived, I met with Ms Stromova. She told me that she had just completed a ward round with the cardiothoracic area. She told me that, at that morning’s ward round, Dr Subramaniam had said it was unnecessary for a member of the Unit to attend the morning ward rounds as it was creating unnecessary delays. … It was about this time that Mr Shardlow entered the Café and joined the conversation. I do not recall exactly what he said, but Mr Shardlow was upset and angry, stating that he believed Ms Stromova had been withholding information, and complained of poor communication from Ms Stromova. We discussed Mr Shardlow’s complaints and agreed upon several communication strategies. I also again discussed with Mr Shardlow my recommendation that he begin shifting his focus to the renal project and let Ms Stromova finish the cardiothoracic project.
She denied that Dr Subramaniam’s request that Mr Shardlow be removed from the project had been discussed at the Café Hoz meeting.
25. Ms Dickens statement continued:
During this morning tea I did not give any indication to Mr Shardlow about Dr Subramaniam’s request that Mr Shardlow no longer work on the cardiothoracic project as I wanted Dr Subramaniam to speak to him about this first.
26. According to Mr Shardlow soon after the meeting at Café Hoz Dr Subramaniam first telephoned and then visited Mr Shardlow. Dr Subramaniam said to him that as he ‘had a fairly good grasp on the concepts that we were educating him on, that he wanted to minimise our involvement to speed up morning handover, and that he … wanted Ms Stromova to continue with the interaction’. He also said that Mr Shardlow was not being sufficiently positive about the project and that the morning rounds were taking too long because of the input from the team and he wanted to reduce the time taken.
27. Mr Shardlow said he understood from the conversation that the decision was to replace him with Ms Stromova as the liaison person with the team. Following this conversation, which Mr Shardlow said occurred in early December, Mr Shardlow said he was told he could no longer attend any meetings about the project and he ceased doing so. He said he became increasingly anxious from that time.
28. An email sent to Ms Dickens by Dr Subramaniam dated 17 December 2009 stated that Mr Shardlow no longer needed to attend meetings concerning the project. At the hearing, Mr Shardlow said it was his understanding from his conversations with Ms Dickens that this decision had been made by Dr Subramaniam.
29. In her third statement for the purpose of the hearing, dated 14 November 2011, Ms Dickens asserted that the email from Dr Subramaniam on 17 December 2009 was the first occasion on which she became aware that Dr Subramaniam did not wish Mr Shardlow to attend any further meetings. She also said she was aware that the request would not be welcomed by Mr Shardlow. She said that ‘on or about the following day, I met with Dr Subramaniam to discuss his request’ and at that meeting she asked him to speak with Mr Shardlow about the reasons for the request.
30. However, in her statement of 17 August 2011, Ms Dickens had said she had discussed with Mr Shardlow ‘his adjusting his focus to another clinical unit and project on several occasions prior to the morning tea at Café Hoz. I was attempting to diplomatically re-direct Mr Shardlow from the cardiac surgery activities as Dr Subramaniam had spoken with me some days earlier’ (emphasis added). Ms Dickens said at the hearing that the discussions about Mr Shardlow starting a project in the renal area occurred, to the best of her knowledge, between 17 and 23 December 2009.
31. In her first statement, dated 1 June 2011, Ms Dickens says of the removal of Mr Shardlow from the project that she ‘considered this was an acceptable minor human resource adjustment to the day to day duties of the individual members of the unit and not a complete role change’. She agreed that there was no formal change to Mr Shardlow’s duty statement. In the context of the review of the Casemix unit, Ms Dickens confirmed that there were no ‘complaints about Mr Shardlow’s behaviour … being discussed with the [general] manager [of The Canberra Hospital]’ arising from the review’. Nor had she had cause for concern about Mr Shardlow’s conduct.
32. She confirmed that prior to the request from Dr Subramaniam she had not seen any need to alter Mr Shardlow’s role in relation to the project and she had had no previous difficulties with his involvement. Her statement of 16 August 2011 also noted that ‘According to Dr Subramaniam the issue was not with Mr Shardlow being unable to perform his duties, it was rather that Ms Stromova was quicker and appeared to understand the issues more clearly’.
33. Ms Dickens’s third statement of 14 November 2010 said that on 23 or 24 December 2009 she had a further confidential meeting with Mr Shardlow when she told him she wanted him to focus on the renal project. She denied giving any direction to him to cease working on the cardiothoracic project ‘because I was still concerned that Dr Subramaniam speak with him about it first’.
34. In this third statement she outlined her reasons for agreeing that Mr Shardlow move on to another project:
Ultimately, I considered that it was in the best interests of the Casemix unit to move Mr Shardlow on to another project and have Ms Stromova complete the work with the cardiothoracic area. In arriving at this view, I considered the following:
· The request for the change in personnel had come directly from the cardiothoracic area manager of the project activity, Dr Subramaniam. Dr Subramaniam had made it clear to me that he had some problems working with Mr Shardlow, and preferred working with Ms Stromova. I considered that it was appropriate to take into account the requirements of the cardiothoracic area, particularly as the Casemix unit was assisting at their request. I also considered that it was appropriate to take into account Dr Subramaniam’s seniority in TCH [The Canberra Hospital].
· I was concerned that the Casemix Unit develop and maintain a good reputation across TCH in terms of the assistance it could provide to areas, upon their request, as described …
· The Casemix Unit had a build-up of work that needed to be completed. In particular, the renal area had requested that the Unit begin working with them on a project in early December 2009. Work on this project had not yet commenced. I understood that the project would be significant in terms of the time and resources of the Casemix Unit which would be involved. In contrast, I understood that the project with the cardiothoracic area was almost completed.
· In my opinion, Mr Shardlow had excellent skills and experience in setting up and getting underway the projects …
· I considered that having Mr Shardlow focus on beginning the renal project, and no longer working on the cardiothoracic project, addressed the concern raised by Dr Subramaniam and was also the best use of resources in the circumstances.
35. Mr Shardlow went on leave on 24 December 2009 and returned to work in early January 2010. Following his return he had a meeting with Ms Dickens on 7 January 2010. The meeting was at his initiative and lasted about one hour. Mr Shardlow said he had wanted to discuss with Ms Dickens his concerns about her indication in December 2009 that his leadership role as set out in his duty statement was to be removed. He acknowledged that no steps had been taken to effect this and a new duty statement was not presented to Mr Shardlow until March 2010. The revised duty statement focused on research roles with some education component.
36. At the 7 January 2010 meeting Mr Shardlow showed Ms Dickens his duty statement and asked her if she was prepared to support him in the position as described. He said that Ms Dickens’s response was to tell Ms Stromova that Mr Shardlow remained the team leader. Mr Shardlow’s letter to Dr George Guirguis, his general practitioner, dated 20 February 2010 also stated that at his 7 January 2010 meeting with Ms Dickens one solution offered by Ms Dickens was to ‘Inform HOP3 [that is, Ms Stromova] that I am the team leader’.
37. At the 7 January 2010 meeting Mr Shardlow also raised his wish to return to the cardiothoracic project but Ms Dickens refused. At the hearing, Mr Shardlow agreed that his removal from the project was a ‘catalyst event’. Ms Dickens’s statement was that although she had not been told by Mr Shardlow that Dr Subramaniam had spoken with him, she assumed that by this time the conversation had taken place, so she reiterated her understanding ‘of Dr Subramaniam’s reasons’ for removal of him from the cardiothoracic unit. In relation to Mr Shardlow’s additional concerns about his role as leader of the team, Ms Dickens evidence was that this related to ‘a lack of communication and respect by his team members which made it difficult for him to function in the way he wanted to in his leadership role’. She confirmed that he had been raising such issues with her over the month of December 2010.
38. Her November 2011 statement said ‘I recall that, after that meeting, Mr Shardlow went home on sick leave’. She also claimed in that statement that it was not until his return from sick leave some fortnight later, that she became aware of Mr Shardlow’s depressive illness.
39. On 14 January 2010, Dr Guirguis diagnosed severe depression and prescribed a change of anti-depressant and instituted a Mental Health Plan. Mr Shardlow provided a medical certificate, dated 14 January 2010 from Dr Guirguis stating he was unfit to work from 8 January 2010 to 22 January 2010.Mr Shardlow returned to work on Wednesday 23 January 2010.
40. About a fortnight after his return from sick leave, on 11 February 2010, Mr Shardlow said he was at a team meeting at which Ms Dickens was present. At the meeting two of the team members were attacking him and Mr Shardlow said Ms Dickens did nothing to stop them. It was after that meeting that he went off work again and did not return until August 2010 when he was placed in medical records, but remained at the RN3.1 level. Dr Guirguis certified him unfit until 2 August 2010.
41. Mr Shardlow lodged a workers’ compensation claim on 14 May 2010. In his workers’ compensation application Mr Shardlow stated that he was first injured on 12 February 2010 at a meeting. He said he was verbally attacked and claimed ‘This was the final straw to a number of issues, such as exclusion and circumvention by junior staff. Also lack of support as a team member and leader, as well as deliberate role erosion by Manager’.
Medical and allied evidence
Dr Guirguis
42 Dr George Guirguis, Mr Shardlow’s treating general practitioner, provided a report to Comcare dated 2 July 2010 which included his clinical notes during the relevant period. In summary the notes, as relevant, were:
·10.09.09: depression – stable mental condition
·14.01.10: depression – problem at work; is not given meaningful work – excluded, losing credibility … start Cymbalta 30 then 60 reassess in 3 weeks.
·4.02.10: depression – adverse work issues are being addressed and he is happier; Cymbalta 60 is helping depression but not as much with pain.
·18.02.10: depression: had confrontation at work and left; feels that he is very controlled and unable to be autonomous – suicide thoughts – job security - add Avanza 15 [an antidepressant] and reassess in 4 days – given my home number – mother will come and stay with him
·22.02.10: depression: better – suicide thoughts are gone – less angry and less obsessed – more active – mother visited – double the dose to 30mg
·1.03.10: depression – m[uch] better – settled – no suicide thoughts – more motivated about work
·15.03.10: depression – very positive – on the 10 score he is 8 – awaiting to hear from work re mediation – feels comfortable BUT is concerned about using his sick leave
·09.04.10: depression - leadership role is being taken away from him by his work management – not happy about that – reconciliation meetings in progress – feels like losing status at work – insomnia – feels down – denies suicidal thoughts – stress counselling – involving union … given my home number for support
·10.04.10: depression – do mental care plan review
·15.04.10: depression – feels more in control – less anger – mood is very stable – sleep is better – relationship with other people is less of a strain – union meeting ended favourably on his side for the time being and the advice was to adjust work duties to be more in line with initial job description
·30.04.10: depression – 3 work colleagues filed bullying and harassment charges against him – the matter will be investigated – now the place is considered unsafe for work.
·14.05.10: depression – counselled about current work situation and that the fact that he is now also complained against by 2 other colleagues – counselled and reassured – Seroquel 25mg nightly and reassess in 4 weeks.
·23.06.10: depression – some adversities at work – fresh allegations against him from 2 other colleagues (bullying and harassment) – he is quite upset about these as the implications were that these allegations were attributed to some emails sent from his home containing humorous sexual references – he says that his manager initiated and fostered this culture in the office for a number of years.
42. Dr Guirguis noted that Mr Shardlow had not been referred to a psychiatrist at that stage as he was receiving adequate support from Ms Paula Zohn, a clinical psychologist, who treated Mr Shardlow under a Mental Health Plan in 2008-09 and again in 2010. He listed the specific diagnoses of Mr Shardlow’s condition as adjustment disorder aggravating pre-existing depressive disease. The causes of the aggravation were listed as:
·Removal from meaningful work
·Loss of leadership role
·Lack of managerial support
·Management bullying and harassment.
Ms Zohn
43. Ms Zohn saw Mr Shardlow for eight sessions under the Mental Health Plan. In her initial assessment on 5 December 2008, Ms Zohn reported that Mr Shardlow had a history of depression having visited a psychologist when he was 17-18 years. However, she noted that at the time he was ‘unsure if [it was] depression’. She said in her clinical notes that Mr Shardlow also had an ‘intense low mood’ in his mid-thirties for approximately two to three years, repeated for 3 years to December 2008.
44. Ms Zohn diagnosed major depressive disorder, severe, in a ‘Progress Note,’ dated 23 December 2008. This diagnosis was repeated in notes of 16 January 2009, 4 March 2009 and 14 April 2009. The note of 15 June 2009 stated major depressive disorder ‘in remission’. This remained his status for the note on 4 September 2009, and following the final appointment on 21 October 2009. She reported that Mr Shardlow had managed to maintain his mood at improved levels throughout 2009 and ‘was once again feeling some degree of interest in his work’, in part due to being on medication.
45. In early 2010, Mr Shardlow, on the recommendation of Dr Guirguis, had a further eight sessions of treatment with Ms Zohn commencing 25 January 2010. In her report to Comcare, Ms Zohn recorded that on 25 January 2010, Mr Shardlow had recorded being sidelined in his conduct of the cardiothoracic project by junior staff, being removed from the project, and replaced by a colleague, Ms Stromova, who he claimed had avoided communicating with him on the project. She also recorded him saying that one of his staff circumvented him on the project and reported directly to his supervisor by speaking to her at lunches and morning teas which he did not attend. Ms Zohn also reported him saying that leadership components were removed from his job during changes to the work structure. On 25 January 2010, she noted ‘Significant deterioration in mental health status due to workplace stressors’. Mr Shardlow had reported to her that he was experiencing sleep disturbance, ruminating, withdrawing and was ‘close to feeling like he is going to physically harm someone’.
46. On 4 February 2010, however, Ms Zohn reported ‘Good improvement following disc[ussion] with boss’. On 17 February 2010, she noted under ‘Assessment’ ‘Assess for suicidal risk at subsequent sessions until significant reduction occurs’. Under ‘Panic attacks’ she noted: ‘No, but last couple of days shakiness, palpitations, weakness, unusual sensation’. By 4 March 2010, however, she noted ‘Significant improvement in mood with addition of Avanza’ [antidepressant medication].
47. At this time, Ms Zohn diagnosed ‘major depressive disorder, recurrent, moderate’. She maintained that the condition was a recurrence of his earlier condition and was not an aggravation of a pre-existing or underlying condition. In her view he had met the criteria for full remission specified on 14 June 2009 in that there had been no significant signs or symptoms of depression for the previous two months.
48. She stated in her report that the employment factors that contributed to the recurrence of Mr Shardlow’s condition were:
·Failure of management to provide clarity of leadership responsibility of the team ‘in a timely, considerate and consultative manner’.
·This resulted in him being distressed in the presence of colleagues, one of whom had shown earlier lack of respect for his leadership, leading to a further diminution of his standing with her and others.
·Failure of management to ensure an ‘effective communication and information flow between members’ of the team leading to informal practices developing which excluded Mr Shardlow and undermined his leadership.
·Failure of management to support Mr Shardlow in his role on the cardiothoracic project, which he had initiated, further undermining his leadership role.
Legislation
49. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides compensation for an injury to an employee if the injury results in death, incapacity for work, or impairment. An ‘injury’ is defined:
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; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or out that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
50. A ‘disease’ is defined:
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.
51. Section 4(1) defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
52. Section 7(4) states that the date of injury, ‘being a disease, or aggravation’ is the date ‘the employee first sought medical treatment for the disease, or aggravation’ or the date ‘the disease or aggravation… first resulted in the incapacity for work’, whichever occurred first.
Consideration
‘Disease or aggravation’ and ‘whether related to employment’
53. There is medical evidence that Mr Shardlow suffered from depression at various times prior to the events in 2009. In a report to Comcare, dated 2 July 2010, Dr Guirguis diagnosed an ‘adjustment disorder aggravating pre-existing depressive disease’. Mr Shardlow was referred to a clinical psychologist, Ms Paula Zohn in 2008 but she stated his condition, which she described as major depressive disorder, had stabilised by June 2009, and was in full remission by October of that year. She diagnosed a recurrence of the condition in 2010.
54. Comcare accepted in its initial decision, not challenged on review, that Mr Shardlow suffered from an aggravation of that psychological condition from at least early in 2010. The Tribunal finds that the depressive condition from which Mr Shardlow suffered was a ‘disease’ being ‘a condition that is outside the boundaries of normal mental functioning and behaviour’.[1]
[1] Comcare v Mooi (1996) 69 FCR 439 at 444 (Drummond J).
55. Further it was accepted that Mr Shardlow’s condition was significantly contributed to by his employment. The Tribunal accepts on the evidence and in the absence of other evidence of events at the time that could have precipitated depression, that the concession was properly made.
Date of injury
56. It was agreed by counsel for Mr Shardlow and for Comcare that the relevant date in accordance with the Act was 14 January 2010; the day Dr Guirguis diagnosed severe depression. That was the day on which Mr Shardlow first sought medical treatment for the condition.[2] Despite Mr Shardlow’s statement that he first sought medical treatment in February 2010, the medical records and evidence of Dr Guirguis indicate that the 14th January was the correct date. The Tribunal accepts the correctness of this choice.
Is Mr Shardlow’s disease excluded from compensation because it was sustained through reasonable administrative action conducted in a reasonable manner (section 5A of the Act)?
[2] Act s7(4)(a).
57. The sole contested issue is whether Comcare is excused from liability to compensate Mr Shardlow for his depressive condition because it was due to ‘reasonable administrative action, conducted in a reasonable manner’.
58. Counsel for Mr Shardlow said that in his view the exclusionary clause did not operate since the actions which precipitated Mr Shardlow’s depressive condition were not ‘administrative actions’. Alternatively, he contended even if they were ’administrative actions’, the actions were not ‘reasonable’, nor taken in a ‘reasonable manner’.
59. Counsel for Comcare maintained that the actions which precipitated Mr Shardlow’s depressive condition were ‘a reasonable appraisal of the employee’s performance’ (section 5A(2)(a)) It was further contended that appraisal for the purposes of section 5A was not limited to any formal processes provided for in a formal document such as the Performance Agreement relating to the particular workplace, but was broader and could encompass administrative action of the kind taken in relation to Mr Shardlow.
Reasonableness of the action
60. The Tribunal finds that relocation of Mr Shardlow to a different project is a reasonable action by management. The role of a supervisor involves deployment of staff to undertake the functions allocated. Ms Dickens was entitled to act in the manner she did, that is, to insist Mr Shardlow take on another project for the renal unit and cease working on the cardiothoracic project. Whether that action was taken ‘in a reasonable manner’ is discussed later. The issue facing the Tribunal in this matter, however, is whether the action taken by Ms Dickens which can be characterised as reasonable management action is covered by a legislative definition of ‘administrative action’. In other words is management action synonymous with administrative action? That involves an interpretation of section 5A(2).
‘Administrative action’
61. Section 5A(2) defines, non-exhaustively, what is meant by the expression ‘administrative action’. If action falls within that provision liability for injury arising from such action is excluded. The action must relate to employment. Administrative action under section 5A(2) includes appraisal of performance, counselling, suspension, disciplinary processes and ‘anything reasonable done in connection with’ such actions, or with failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit. Section 5A(2) states that the counselling or disciplinary processes may be formal or informal.[3] No such qualification applies to appraisal of performance or suspension from employment.
[3] Act s 5A(2)(b), (d).
62. Despite not being exhaustive, the administrative action envisaged by section 5A(2) is not at large. As Doyle CJ said of related compensation legislation in Workcover Corporation of South Australia v Summers:[4]
[T]he words … ‘administrative action’ do not seem apt to embrace every instruction of an action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform [their] duties.[5]
[4] (1995) 65 SASR 243.
[5] Id at 247.
63. The ‘particular type of action’ covered by section 5A(2) has as a central theme either:
·an adverse assessment of employment performance or corrective action of an employee by a manager; or
·refusal of an application by an employee for some change in their employment status which has an adverse impact on their career advancement or denies receipt of a benefit including a promotion, reclassification, or transfer.[6]
[6] Re Radulovic and Comcare (2010) 120 ALD 311 at [73] (Senior Member Creyke).
64. Such administrative actions do not exclude liability under section 5A(2) unless the impact of the actions is a materially contributing cause of the injury.[7] In relation to a depressive condition or ‘disease’ the contribution must be to a significant degree.[8]
[7] Comcare v Sahu-Khan (2007) 156 FCR 536 at 541 (Finn J); Re Carpenter and Comcare (2010)116 ALD 190 at 213 (Deputy President DG Jarvis).
[8] Act s5B(1).
65. The ordinary meaning of the specific actions listed in section 5A(2) is open to a broader or a narrower interpretation. However, there is an obligation to interpret provisions in a statute in their context,[9] taking into account the purpose and object of the legislation.[10] The Act was intended to provide for both rehabilitation of injured employees and compensation during periods of inability to work.[11] An interpretation of these provisions which is too broad is capable of undermining those purposes.
[9] Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at 156-7 (Gibbs CJ, Stephen, Mason, Aickin and Wilson JJ); K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514 (Mason J).
[10] Acts Interpretation Act 1901 (Cth) s15AA.
[11] Long title to the Act: An Act to amend the law relating to occupational health, safety, rehabilitation and compensation, and for related purposes.
66. To interpret section 5A(2) as extending to any action by management which has an adverse health impact on an employee has the potential to deny liability for compensation to a significant extent.[12] Such an interpretation also fails to take account of the common themes in the matters listed in section 5A(2). The Tribunal considers such an interpretation could not have been intended by parliament, given the legislative objects and the terms of the provision. For that reason where a broader or a narrower interpretation of a term or expression in section 5A(2) is at issue, the narrower option should be preferred.[13] In particular, the Tribunal considers that use of the expression ‘administrative’, rather than ‘management’ to qualify ‘action’ was intended. That means the Tribunal considers the kinds of actions intended to be covered by the provision is not co-extensive with ‘management action’. Had Parliament intended the provision to refer to forms of management action, it could have said so.
[12] Cf Re Dyer and Comcare [2011] AATA 748 at [58] (Senior Member Fice).
[13] Comcare v Chenhall (1992) 109 ALR 361 at 366 (Cooper J).
67. Counsel for Comcare contended that although there is no definitive authority as to the ambit of ‘administrative action’ the expression was limited in scope, the preferable interpretation being restricted to the examples in section 5A(2), to ‘anything reasonable done in connection with’ the examples, and to ‘other administrative action which falls within categories comparable to those listed’. The Tribunal agrees with this contention noting, however, that in cases like these which turn on their facts, questions of degree will inevitably arise.
‘Administrative actions’ in this matter
68. Turning to the actions at issue in this matter, the evidence indicates there were two administrative actions which aggravated Mr Shardlow’s depressive condition: his removal of from the Casemix project for the cardiothoracic unit; and the failure by members of the project team to recognise what he perceived to be his leadership role. The evidence indicates that these were the ‘catalyst events’ to his leaving the workplace.
69. The facts are that Mr Shardlow’s liaison role and involvement in the cardiothoracic unit project was transferred to Ms Stromova some time in December. On the facts it is not clear whether that removal occurred in early December or on or after 17 December 2009. Fixing the precise date is not critical. It was the impact of that decision, and its confirmation by Ms Dickens at the meeting with Mr Shardlow on 7 January 2009, that was one of the materially contributing administrative actions. The other more longstanding issue was what Mr Shardlow perceived to be an erosion of his authority as leader of the team. He had complained to Ms Dickens about this issue from as early as September 2009, but the complaints continued up to and including 14 January 2010. That this second issue was a significant one for him is evidenced by its reference in the reports of Dr Guirguis, Ms Zohn, and its reiteration in the documentation and oral evidence from Mr Shardlow presented to the Tribunal.
70. Turning to the examples of administrative action in section 5A(2 ) Mr Shardlow had not sought a promotion, or reclassification. He was resisting a transfer, not seeking one. Nor was it claimed that he had been counselled, suspended, or disciplined.[14] In other words, the administrative actions do not fall within any of those provisions. The Tribunal raised the issue of whether any of the nominated administrative actions could have amounted to removal of a ‘benefit’.
[14] Act s 5A(2)(b), (c), (d).
Failure to obtain a benefit (section 5A(2)(f))
71. Counsel for Comcare submitted that a benefit ‘tends to concern matters such as overtime or specific hours or something financial or by way of remuneration’. It is common in particular legislative contexts for ‘benefit’ to be so confined.[15] Nonetheless, ‘benefit’ is not limited to financial emolument, as the helpful decision in Re Hardy and Comcare indicates.[16]
[15] For example, superannuation benefits, defence force retirement and death benefits, income support, nursing home benefits all bear that connotation: eg Re Archer and Comcare [1999] AATA 940, Re Soswowski and Commissioner of Superannuation [1987] AATA 206 (benefits under a superannuation scheme); Re Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 248 (residential care benefits); Re Piccolo and McVeigh [2001] AATA 623 (fringe benefits in taxation law);
[16] Re Hardy and Comcare [2010] AATA 342. The decision related to the definition as it appeared in section 4(1) prior to the amendments to the Act introduced in 2007. The inclusion of ‘benefit’ in section 5A(2) without qualification permits its interpretation under previous versions of the Act to be relied on.
72. The term has been given its broader, ordinary meaning to include ‘anything that is for the good of a person or thing’,[17] at least in the context of employment. A ‘benefit’ must, however, in the light of the themes apparent from the examples in section 5A(2) encompass some advantage in terms of employment, be it financial or a valuable perquisite of office such as use of a parking space, or reimbursement of child care costs, or be something that will advance a person’s career or provide improved employment opportunities such as access to a permanent position,[18] or training opportunities leading to new or additional skills.[19] A failure to be appointed to a short term temporary position with no increase in salary, or to a position which would not involve acquisition of any new skills, or to a course which would not improve skills or opportunities for advancement, has not been considered sufficient to amount to a ‘benefit’.[20]
[17] Trewin v Comcare (1998) 84 FCR 171 at 177 (Heerey J).
[18] Id at 166 – 167 (Heerey J).
[19] Re Hardy and Comcare [2010] AATA 342 at [113] (Senior Member Cunningham).
[20] Id at [135] – [136].
73. Had Mr Shardlow’s leadership of the team been removed, it might have been considered to be a failure to retain a ‘benefit’, his leadership experience being a matter which would be significant to his career advancement. However, on the facts, Mr Shardlow was not denied his leadership of the team, as Ms Dickens confirmed. As at 7 January 2010 it was not proposed that his leadership role be taken from him had he agreed to move to the proposed renal project. In other words, he had not been demoted, but was, at the relevant time, simply to be transferred from one short term project to another at level. In these circumstances he was not denied a benefit.
74. Nor did Mr Shardlow’s understandable interest in the cardiothoracic project, which was his first as a leader and which he was instrumental in establishing, make his removal from one short-term project, to another one, a denial of a benefit. The nature of the work done by the Casemix unit involved taking on different projects for particular areas of the hospital, and was a regular incident in the kind of work in which he was involved, rather than a new or particular benefit. The material before the Tribunal indicates that Mr Shardlow’s role in the project was only one of the tasks or responsibilities of his job as an RN3.1 in the Casemix unit. As Ms Dickens said in evidence:
The project wasn’t a full time project. It was 15 minutes, 20 minutes, half an hour here and there. It was not … a project that required full time resources. It was attending meetings on occasion, providing advice, coming back from a meeting and doing whatever sort of research or getting the right people together to talk to each other. …[I]t certainly wasn’t a full job or a function. It was just an activity within normal daily activities.
Accordingly the Tribunal is satisfied that the actions concerning Mr Shardlow did not fall within the ‘failure to obtain … a benefit’ example in section 5A(2).
Appraisal of employee’s performance (section 5A(2)(a)(e))
75. That leaves for consideration the issue of whether the administrative actions amounted to an ‘appraisal of the employee’s performance’ or actions in connection with such an appraisal.[21] Appraisal in the context of section 5A(2) must be for the purpose of improvement in performance. Only in the case of some form of adverse assessment during or prior to an appraisal process, is it likely that the process would have a sufficiently adverse impact to contribute to an injury to the requisite degree.
[21] Act s 5A(2)(a),(e).
76. That finding is supported by the section on ‘performance management’, an expression often used as a substitute for performance appraisal, in the ACT Health Union Collective Agreement 2007-2010 (Collective Agreement) Part 5, Section O – Learning and Development. Section O describes the purpose of performance management as being ‘to emphasise the relationship between corporate, team and individual responsibilities and performance and to align individual team and organisational objectives and results’. Specifically clause 84 refers to development of ‘a clear picture of the employee’s role and purpose within the Agency’, establishment of ‘improved communication between employees, supervisors and managers’, and the exploration and development of ‘the skills and potential of employees’. In other words, the provision related to improved performance.
77. Counsel for Comcare contended that the decision to remove Mr Shardlow from his role on the cardiothoracic project and replace him with Ms Stromova constituted ‘something reasonably done in connection with a reasonable appraisal of the employee’s performance’. It was contended that ‘Ms Dickens’ decision to remove the Applicant from this role was based on the clearly expressed indication from Dr Subramaniam that he was dissatisfied with the Applicant’s performance and he wanted Ms Stromova to take over’.
78. Alternatively counsel argued that the decision to remove Mr Shardlow from his role was ‘legitimate human resource management action which is a category comparable to those listed in s 5A(2), noting that the central theme of s 5A(2) is administrative actions involving any assessment or performance or corrective action of an employee’.
Leaving aside the reasonableness of the actions, the issues are whether the actions of removal of Mr Shardlow from the cardiothoracic project, or the actions relating to Mr Shardlow’s complaints about erosion of his leadership position amounted to an appraisal of performance.
Who made the removal decision?
79. A preliminary issue is who made the decision to remove Mr Shardlow from the cardiothoracic unit. On the evidence the sole administrative action which ultimately transpired from the intervention of Dr Subramaniam was that Mr Shardlow was no longer to be involved in the cardiothoracic project. He remained the team leader, and according to Ms Dickens he was to pick up another, larger project, in the renal unit. The administrative action of sufficient moment to be a materially contributing cause to Mr Shardlow going off work in January 2010 was the interaction between Ms Dickens and himself at the meeting on 7 January 2010. Although his anxiety had been developing in the latter quarter of 2009, it was the events at this meeting which caused his depressive condition to recur, which caused him to be certified unfit for work and for a mental health plan to be instituted. It is, therefore, the events of that meeting, as coloured by previous interactions, which are the prime focus of the consideration.
80. The accounts of what transpired at that meeting differ. In essence, however, Mr Shardlow was informed, in response to his request that he return to the cardiothoracic project, that he was no longer to be involved. A preliminary issue was whether this meeting involved a ‘decision’ of Ms Dickens or of Dr Subramaniam. It is an inherent incident of performance appraisal that it be implemented by the person’s manager or someone more senior within the hierarchy of the agency.
81. If the decision was in fact made by Dr Subramaniam, it was contended that as an independent specialist consultant, he was not an ACT Health employee and hence not a senior manager for the purposes of appraisal. The Tribunal accepts the correctness of that contention. Had the decision solely been conveyed by him and Mr Shardlow had then gone off work, it is arguable that the decision would not have come within section 5A(2), not being a decision of ACT Health management. However, it was Ms Dickens’s discussions on 7 January 2010 and her confirmation of the removal of Mr Shardlow from that project, not the conversation Mr Shardlow had with Dr Subramaniam some time in December 2009 that precipitated Mr Shardlow’s recurrence of his depressive condition. As she was his supervisor and it was his interaction with her which caused him to leave the workplace for a period, it was her decision which was critical.
82. The decision was the culmination of a suggestion to Mr Shardlow made by Ms Dickens on a number of previous occasions that he consider moving on to another project. So although she justified her decision to reject his request to be reinstated in the project on a number of grounds, including, realistically within a hospital environment, that the views of a specialist consultant in an area of work in which her unit was involved deserved to be given weight, it remained her decision. The contention that the actual decision maker was Dr Subramaniam can be discounted.
Did the actions amount to an ‘appraisal’ under the Act?
83. The more pertinent issue is whether the occasion was an ‘appraisal of the employee’s performance’. There is no qualification of that expression by the words ‘whether formal or informal’ as appear in relation to ‘counselling’ and ‘disciplinary action’ in section 5A(2)(b) and (d). Counsel for Comcare had contended that both formal and informal appraisals were covered by section 5A(2)(a).
84. Applying the expressio unius est exclusio alterius presumption – the express mention of one thing implies the intentional exclusion of another - leads to the conclusion that the absence of the qualification ‘whether formal or informal’ in section 5A(2)(a) was intentional. In turn that could mean that the provision was intended to apply only in the case of a formal appraisal. The Tribunal notes that there is a formal description of performance management appraisal in clause 84 of the Collective Agreement, and of ‘performance management schemes’ in clause 85.
85. There is no indication that what happened on 7 January 2010 occurred within that framework. If the presumption was applied, the result would be that the action taken by Ms Dickens did not amount to an ‘appraisal of an employee’s performance’. In support of that finding, the Tribunal notes that a formal appraisal process is more likely to have an adverse impact on an employee than one which is in the nature of an everyday interaction between a manager and an employee. The Tribunal notes, however, that this presumption should be applied with ‘extreme caution’[22] and it does not propose to give weight to the omission of the qualifying expression in section 5A(2)(a) in this instance.
[22] DC Pearce, RS Geddes Statutory Interpretation in Australia (7th edn, LexisNexis, 2011), [4.32].
86. As an alternative, the Tribunal considers the ordinary English meaning of ‘appraisal’. That step requires recourse to a dictionary. The meaning of the verb ‘to appraise’ is ‘1. To estimate generally, as to quality, size, weight, etc’.[23] Accordingly the related noun ‘appraisal’ is an assessment of the quality of the performance of an employee. Although an appraisal can assess quality as good or not so good, in the context of section 5A(2), it is only critical appraisal of performance which is relevant since the appraisal must result in the occurrence of an ‘injury’ for it to give rise to a claim for compensation. Only an adverse appraisal would have such an impact.
[23] Macquarie Concise Dictionary (5th edn, Macquarie, 2009), 51.
87. There are reasons for doubting that what transpired on 7 January 2011 was an ‘appraisal’ in this sense of Mr Shardlow’s performance. In the first instance, it is generally the case that an appraisal occurs at the instigation of a manager. It was Mr Shardlow, not Ms Dickens who requested the meeting on 7 January 2010.. Second, in the context of section 5A(2)(a), the appraisal must be one concerning dissatisfaction by the manager with the performance of the employee. These findings are supported by the terms of clause 84 of the Collective Agreement, from the context of the employment relationship, and from the relevant terms of section 5A(2).
88. In this instance, the meeting was to discuss Mr Shardlow’s concerns about loss of his leadership role and his desire to return to his position on the cardiothoracic project, not his manager’s dissatisfaction with his performance. Ms Dickens said orally and in her statement of August 2011 that she had not had cause to be concerned about Mr Shardlow’s performance, nor was there criticism of his performance in the report of the review of the Casemix unit. Her evidence was that she relayed to Mr Shardlow at that meeting Dr Subramaniam’s reasons for removing him from the project, not her own. She also said in her August 2011 statement that the reason for Dr Subramaniam’s concern ‘was not with Mr Shardlow being unable to perform his duties’ but that another person was able to do so to a better degree. So although in her November description of Dr Subramaniam’s reasons she recorded him saying Mr Shardlow ‘could be obstructive’, and took ‘too long to answer questions or complete tasks’, these criticisms were muted, were made by another, and not necessarily adopted by her. That is indicated by her summary of his reasons in her statement as a ‘preference’ of Dr Subramaniam for Ms Stromova to continue with the project, rather than a criticism.
89. In addition, in her stated reasons in her 14 November 2011 statement for acceding to Dr Subramaniam’s request, Ms Dickens said the work on the project was almost completed, Mr Shardlow had excellent skills and experience in setting up projects, and his removal was the best use of resources in the circumstances.
90. So, although there may have been some criticism by Dr Subramaniam of Mr Shardlow’s performance of his role, there was no criticism by him of Mr Shardlow’s ability to perform his duties, although there was some preference that the conduct of those duties be undertaken in a different manner. Ms Dickens’s evidence is that she had no personal criticism of his performance and her reasons for moving him were to accede to a request by a senior member of a hospital unit for whom she was conducting a project, and for other good management reasons such as best use of resources and of an employee’s skills, rather than because of any dissatisfaction she had with the employee’s performance. In other words, the removal action on 7 January 2010 was not administrative action which falls within the notion of a performance appraisal with a view to improvement of an employee’s performance.
91. Nor was the removal a ‘legitimate human resource management action comparable to the actions listed in section 5A(2)’ since the action was not an administrative action which was ‘corrective’ in nature, a feature implicit in the notion of an ‘appraisal’. The action was ‘management action’ but not ‘administrative action’.
Failure to support leadership role
92. The second matter of significant concern which Mr Shardlow raised at the 7 January 2010 meeting was his fear that his leadership role was to be removed. Again, this was at the initiative of Mr Shardlow, not Ms Dickens. The evidence is that although there had been a suggestion by her in December 2009 that his leadership role might be removed Ms Dickens had on the occasion ‘backpedalled’. When asked by Mr Shardlow on 7 January 2010 whether he was to lose his leadership role, she confirmed that this was not to occur and that he would lead the proposed renal project. Further, no change was made to his duty statement until after these events, that is, in March 2010.
93. Ms Dickens also apparently confirmed in Ms Stromova’s presence that Mr Shardlow was to remain as leader of the team. In other words, there was no adverse outcome on this issue which could have materially contributed to Mr Shardlow’s depressive condition. His fears about his loss of his leadership role had not materialised. The consequence is that this conversation too cannot be categorised as an ‘appraisal of an employee’s performance’.
94. In summary, the meeting on 7 January was not about Ms Dickens’ concerns about Mr Shardlow’s performance and her suggestions to him about ways to improve that performance. It was a meeting instigated by Mr Shardlow, not Ms Dickens, to discuss his desire to remain on the cardiothoracic project and to obtain her support for him to continue in a leadership position. It was not a session set up by a manager to suggest to an employee that there were improvements which could be made to his performance in the workplace. As a result of the actions referred to he was not demoted, nor was his performance sanctioned. In these circumstances, the session was not an appraisal, nor was it in connection with an appraisal, and hence it was not an ‘administrative decision’. In these circumstances there is no exclusion of liability under section 5A(2).
‘Conducted in a reasonable manner’
95. If the Tribunal is incorrect in its findings that ‘reasonable administrative action’ is not synonymous with ‘reasonable management action’, consideration needs to be given to whether the actions by Ms Dickens were taken ‘in a reasonable manner’. The Tribunal conceded earlier that it was reasonable administrative action for a supervisor to transfer an employee from one project to another. There is, accordingly, no need to consider that issue at this point.
96. Counsel for Mr Shardlow contended that the inaction of Ms Dicken, in leaving the conveying of the reasons for Mr Shardlow’s removal from the cardiothoracic project to Dr Subramanian, rather than doing so herself, was not conducting the administrative action in a reasonable manner. It is inherent in being a manager that the manager should convey the news about significant changes to a person’s responsibilities. Ms Dickens did not do that initially. Counsel for Comcare disputes that contention.
97. Although there is dispute about exactly what transpired in the meetings in December 2009, Mr Shardlow had become aware that he was to be removed from the project. His evidence, which was not shaken in cross-examination, was that he was so informed at the meeting at Café Hoz. In support of his conviction is the fact that a topic which he wished to raise with Ms Dickens at the 7 January 2010 meeting was the loss of his leadership role. He had either learned that this was a possibility from Dr Subramaniam or from Ms Dickens in December 2009. Ms Dickens was adamant she had not told Mr Shardlow that he was to leave the project in December. She maintains she left the conveying of that information to Dr Subramaniam.
98. Accepting her evidence as correct, she had not told Mr Shardlow what she had appreciated would be unwelcome news to him. She had left it to another to do so. That is not conduct ‘in a reasonable manner’. It was her responsibility to tell him. Although she said she confirmed Dr Subramaniam’s reasons at the meeting on 7 January 2010, she had not mentioned them to Mr Shardlow on an earlier occasion. That does not amount to conduct of her relationship with Mr Shardlow, an employee, in a reasonable manner. She should have been the one to convey that information to him. Her failure to do so meant that her conduct on this issue was not reasonable. For that reason too, the exclusionary clause in section 5A(2) is not applicable.
Decision
99. Since it has been accepted that Mr Shardlow suffers from a disease related to his employment, liability for compensation is established in accordance with section 14 of the Act.
100. The decision of 19 October 2010 should be set aside and in substitution for that decision, it is decided that:
·Comcare is liable for the condition of ‘aggravation of major depressive disorder, recurrent episode’ from which Mr Shardlow has been suffering since 14 January 2010;
·The matter should be remitted to Comcare for reconsideration in accordance with this decision;
·Liberty to apply within 14 days in relation to the costs of the proceedings is reserved;
·In the absence of any such application, Comcare is to pay Mr Shardlow’s costs of and incidental to the proceedings with respect to his claim.
Date of Hearing 1 December 2011
Date of Decision 12 January 2012
Solicitor for the Applicant Angus Bucknell, Maurice Blackburn Lawyers
Counsel for the Applicant Andrew Muller
Solicitor for the Respondent Patrick Dennien, Dibbs Barker
Counsel for the Respondent Sophie Muller
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