SUMEI TANG and COMCARE
[2010] AATA 513
•9 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 513
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6145
GENERAL ADMINISTRATIVE DIVISION ) Re SUMEI TANG Applicant
And
COMCARE
Respondent
DECISION
Tribunal M D Allen, Senior Member
Dr M E C Thorpe, MemberDate9 July 2010
PlaceSydney
Decision The decision under review is AFFIRMED.
..................[sgd]........................
M D Allen, Presiding Member
CATCHWORDS
WORKERS COMPENSATION: Was employee’s anxiety state with depression a result of reasonable disciplinary action. Allegations of harassment and bullying false. Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act (1988) section 4.
CASES
Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Comcare v Eames (2008) 101 ALD 90
REASONS FOR DECISION
9 July 2010 M D Allen, Senior Member
Dr M E C Thorpe, Member1. By Application made 18 December 2007, the Applicant sought review of a reviewable decision made on 29 October 2007 affirming a prior determination that the Applicant was not entitled to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (“SRC”) for the disease of “major depression with anxiety”.
2. The Applicant claimed that she suffered the said disease as a result of bullying and harassment she suffered whilst an employee of Tourism Australia.
3. At all relevant times, the Applicant was employed as a forecasting analyst at the Forecasting Unit of Tourism Research Australia, a Canberra-based division of Tourism Australia.
4. Prior to her appointment to Tourism Australia, the Applicant had been employed by the Australian Bureau of Statistics (“ABS”). As we understand the evidence, at the time the Applicant commenced her employment with Tourism Australia she had been on extended sick leave from her position with the ABS in Canberra and was about to commence a Return to Work program with the ABS at its Sydney offices.
5. The history of the Applicant’s employment with the ABS is set out in the report of Dr Phillip Brown, psychiatrist, in a report to the Respondent’s solicitors dated 1 April 2010.
6. As a result of misconduct proceedings commenced against the Applicant while she was employed by the ABS the Applicant was notified on 17 October 2003 of a decision to terminate her employment. That penalty was later mitigated to that of an official reprimand.
7. On 15 December 2003 the Applicant was referred to psychiatrist Dr Chung by her General Practitioner (“GP”), Dr Foley, of the Leichhardt Women’s Community Health Centre. In a report to Dr Kong of Health Services Australia dated 18 October 2004, Dr Chung stated:
“Initially, I felt that Sumei was suffering from an adjustment disorder with anxiety precipitated by her work difficulties with the Australian Bureau of Statistics. However, by early February 2004, it became clear to me that she was indeed psychotic.”
8. Dr Chung’s report continued:
“Diagnostically, I reviewed my diagnosis of Sumei to a major depression with psychotic features. In the differential diagnosis, I included a schizo-affective disorder, depressed mood.
Sumei did attempt to return to work in early 2004, after finishing seeing me for the first time. She was hospitalised on two occasions, once after taking an overdose of ten paracetamol.
In early July, Sumei was admitted to Rozelle Hospital under schedule 2 of the Mental Health Act and on discharge she was followed up by myself and the Canterbury Community Health Centre…
… I am extremely guarded about Sumei’s progress. In particular I am concerned about her lack of insight into her condition and her refusal to take anti-psychotics. Indeed she has been concealing the fact that she has not been taking her medication for several months.
Sumei is unable to accept a diagnosis of psychotic disorder, and spent several sessions attempting to recant information that she had previously given to me about her symptoms….”
9. In these proceedings the Applicant rejected the diagnosis of Dr Chung and claimed that Dr Chung had misinterpreted what she had said to him. Exhibits R7 and R8 are letters written by the Applicant to Dr Chung in which she refutes the information upon which he based his diagnosis. Significantly, both letters request that Dr Chung not release any information about her without reference to her in the first instance.
10. In evidence to the Tribunal Dr Brown stated that it is quite usual after someone recovers from a psychotic episode to deny it occurred. Dr Chung was the Applicant’s treating psychiatrist at the time and we see no reason not to accept his opinion that in 2004 the Applicant suffered from a major depression with psychotic features.
11. We are aware that Dr Greenway, psychiatrist, who undertook the care of the Applicant after her ceasing to attend Dr Chung, was of the opinion that the diagnosis of a psychotic disorder was open to question. He did however diagnose an anxiety/depression.
12. In a report dated 31 May 2005, Dr Greenway stated:
“2. The prognosis for Ms Tang’s condition is that there should be a slow and steady improvement. I suspect that there are certain things that she will not be able to deal with – specifically I do not see her as returning to Canberra.
3. I would suggest that a start at a part-time level (perhaps 15 hours per week) would be appropriate. As noted previously, I do not believe that she can work in Canberra. Certainly the idea of Canberra at the moment generates a high level of anxiety.
…
5. Ms Tang is quite sensitised about how she will be perceived on her return to the workplace. She is hypersensitive to criticism and has a high level of embarrassment about the way that she left her job. I am not sure in what way we can actually address these issues but it is important to be aware of this.”
13. As a result of reports received from psychologist Dr Roldan, psychiatrist Dr Greenway and Dr Kong of Health Services Australia, Balmain Rehabilitation Services began in August 2005 to formulate a return to work plan with the Applicant. The Applicant was given a choice of one of two positions with the ABS in Sydney. However, a report dated 9 August 2005 states:
“On 18 August 2004 (sic), Ms Tang emailed Mr Joe Zappia at the ABS, advising that she would be resigning her role at the ABS. I contacted Ms Tang on 22 August 2005… Ms Tang advised that once she had reviewed the two positions offered in the graduated return to work programme, she had decided to resign, as she preferred working with time series analysis and the job descriptions did not match her skills. Ms Tang advised she had something else happing and is doing her PhD…”.
14. The Applicant commenced employment with Tourism Australia in Canberra on 18 August 2005. Her three month probation period expired on 18 November 2005 and her appointment was confirmed.
15. In accordance with Tourism Australia standard procedures, a performance review of the Applicant was conducted in March 2006. Prior to that review her immediate superior Mr Quinn had noted that her job performance had deteriorated subsequent to the expiry of her probationary period.
16. At the conclusion of the performance review the Applicant was informed that her performance was below expectations. More importantly in that interview with Mr Quinn it was pointed out to the Applicant that if her performance did not improve formal performance procedures would be instigated.
17. As the Applicant’s performance did not improve a formal meeting was held on 26 June 2006 between the Applicant, her immediate superior Mr Quinn, and his superior Mr Maurer. Following that meeting a record of the meeting was produced and signed by Messrs Maurer and Quinn. A copy of that letter was handed to the Applicant but she refused to sign it.
18. Shortly after the meeting on 26 June 2006 the Applicant took sick leave and her position at Tourism Australia was eventually made redundant due to her continual absence from the workplace.
19. The record of the meeting of 26 June 2006 reads inter alia:
“This letter summarises our meeting of 26 June 2006 at which I discussed your work performance with you and your direct supervisor Mr Tim Quinn.
This followed discussions at your mid-term review in March 2006 during which we discussed your unsatisfactory performance. The discussion at your mid-term review constituted ‘Step One’ of Tourism Australia’s process of disciplinary action regarding unsatisfactory work performance…
At that meeting it was made clear that continued performance below ‘achieved objectives and KPIs’ would lead to further formal performance procedures.
…
You have not made acceptable progress towards meeting the objectives of the position or consistently demonstrated the required values.
…
In accordance with Tourism Australia’s performance management policy if you do not demonstrate a significant improvement by 28 July 2006 a second written warning will be given.”
20. The above document is dated 3 July 2006. On 4 July 2006 Dr Cameron issued a medical certificate stating that the Applicant was unfit for work. No diagnosis is given in that document.
21. Exhibit R12 is the clinical notes of Dr Cameron. An entry dated 4 July 2006 refers to the Applicant suffering abdominal pains and that she had seen a counsellor at Women’s Health that morning and was advised to see a solicitor for advice. Dr Cameron noted that the Applicant had recommenced taking Efexor (an antidepressant) two weeks prior. A query was made regarding pancreatic illness.
22. The first record in the clinical notes of Dr Cameron regarding any work problems suffered by the Applicant is dated 27 June 2006. That is the day following her meeting with Messrs Maurer and Quinn regarding performance failure.
23. Prior to attending Dr Cameron on 24 May 2006 the Applicant had attended a Dr Bobba complaining of anxiety/depression allegedly for the “last month”, citing “some stress at work.”
24. The Applicant has disputed the events which led to her formal counselling.
25. The Applicant has claimed that her illness and subsequent absences from employment were the result of harassment and bullying primarily by her immediate superior Mr Quinn and also by Mr Maurer. Her complaints have been set out in three lengthy letters, namely:
·Dated 14 July 2006 - 30 December 2006 to the People and Culture Section of Tourism Australia.
·Dated 14 July 2006 – 30 December 2006 to Mr Maurer of Tourism Australia.
·Dated 4 February 2007 to Comcare.
26. All three letters contain the same allegations. Mr Quinn in his evidence stated that he was interviewed by someone from the Human Resources Department of Tourism Australia regarding allegations made by the Applicant but that to his knowledge nothing further occurred.
27. The complaints by the Applicant cover five main incidents. Suffice it to say that the recollection of Mr Quinn does not accord with that of the Applicant in respect of the matters raised.
28. The first allegation by the Applicant against Mr Quinn concerned a meeting held in Sydney on 21 February 2006. The Applicant alleged that the site of the meeting had been changed without reference to her but that Mr Quinn had blamed her for not being at the meeting and was angry with her. He then required her to obtain some information for him and became angry when she had to go to the toilet.
29. Mr Quinn, according to the Applicant, also accused her at that meeting of not having the ability to do data entry. She said his tone of voice was not loud but very firm.
30. Cross examined, the Applicant stated that the incident of 21 February was the first time Mr Quinn had been angry with her, and that was the first time she realised that he was unhappy with her performance.
31. Mr Quinn stated that while he recollected the meeting of 21 February 2006 he had no recollection of the venue being changed. He did recall that the Applicant was in the reception area when she was supposed to have been in the meeting with him and taking minutes. He could not recall approaching her about data entry tasks. He did however state that he knew the meeting had its processes so he could rely on his memory. In particular all data required for the meeting had been downloaded prior to the meeting so that there was no requirement for data to be downloaded during the meeting.
32. According to the Applicant, on 23 February 2006, Mr Quinn gave her work to do. On 24 February she was unable to access some data so Mr Quinn began to shout at her. Mr Quinn denies that he shouted at her.
33. The Applicant complained that on 24 February 2006 Mr Quinn had complained to Mr Maurer regarding her research skills. In his statement Mr Maurer said:
“I am aware Sumei alleged she was not sent data and could not complete some tasks. My expectation is that if a person is assigned a task then it (is) up to them to find the data to complete the task. That would be a core competency in Sumei’s position.”
34. A further complaint of the Applicant was that Mr Quinn many times told her to get another job and that he was generally mean to her.
35. In support of this allegation the Applicant provided a statement from Ms Amanda Ly. Ms Ly was called to give evidence and her evidence was unconvincing. She said the events she overheard could have been in the middle of April or could have been in the middle of May. When pressed on details she said that she could not remember what Mr Quinn had said, but that he did not use abusive language although his tone of voice was “not a friendly tone” and was “very harsh”.
36. Mr Quinn denies speaking to the Applicant about getting another job and denies bullying her. Whereas Mr Quinn denies any abuse towards the Applicant we do accept that at times his tone of voice towards the Applicant may not have been over friendly. It is simply human nature when faced with an underperforming subordinate at times a tone of exasperation may creep into one’s voice.
37. A major issue for the Applicant is the refusal by her employer to assist her in developing her skills in the Microsoft Excel computer program. In particular she complained regarding the cancellation of her attendance at an external training course.
38. Cross examined, Mr Quinn stated that at her interview for the position the Applicant had stated that she was proficient in Excel. It then became apparent through her performance that her skills using Excel were not up to the level required for the job.
39. In his statement Mr Quinn said:
“I recall that as a result of her waning performance that I instigated internal training that covered Microsoft Excel functions which were specific for her responsibilities of the unit’s forecasting module. The modules contain a number of worksheets but with her statistical background she should have been able to handle it or apply logic and function to the modules. Sumei should have been skilled in those areas as when she was taken on it was part of her skills that she alleged she had.”
Cross examined Mr Quinn said that he had never heard of ‘Excel Environment’ which had been referred to by the Applicant and that in training he found that the Applicant could not follow detailed instructions that are given in each of the Excel books.
40. As stated above, the Applicant consulted Dr Bobba on 24 May 2006. That was of course well after her performance review in March 2006. She then consulted Dr Cameron on 4 July 2006, being the day after the receipt of the letter of 3 July 2006 which was stated to be a first written warning under Tourism Australia’s Performance Management Policy.
41. Although in these proceedings the Applicant has maintained that she was subjected to bullying and harassment, no complaints of any such matters were made by the Applicant until after December 2006.
42. The Applicant did raise the question of her assessment with Mr Fairweather, the then General Manager of Tourism Australia at Belconnen in Canberra, who was the superior to Messrs Maurer and Quinn, as well as the Applicant.
43. Mr Fairweather told the Tribunal that the Applicant came to see him after she had been given a performance report she did not like. The main issue that he recalled was that the Applicant did not think the appraisal report was fair. He stated that he had informed her that he agreed with the performance report.
44. Cross examined Mr Fairweather said that he considered the Applicant’s problem was that she was required to sign-off on a number of issues where she was deficient. In chief he stated that he was aware of a bullying complaint by the Applicant that that complaint came after her performance review.
45. In his written statement Mr Fairweather said:
“I am not aware that Mr Quinn persistently bullied her and asked her to leave. I know she made those allegations, however, I have no evidence that it occurred. I would add the office in the ACT was small and quiet and if anything like that was going on then I think most of the office would have heard it. I am not aware of any bullying of other persons in the office by Tim Quinn.
Tourism Australia investigated Ms Tang’s allegations against Tim Quinn and Andrew Maurer. The final outcome as I understand is that no evidence was found against either man regarding the allegations.”
He added:
“I am aware Ms Tang submitted a claim after she left the Department about the bullying and harassment causing her symptoms. I can state I was aware Ms Tang was not performing in her position and was not able to cope with the tasks given. However, the tasks were not above her skill levels and were really basic. I would say she wasn’t happy about being assessed but other than that I cannot comment further.”
46. On 9 February 2007, the Applicant consulted Dr Synnott, psychiatrist, at the request of the Respondent. In his report (undated) following that consultation, Dr Synnott diagnosed a major depressive disorder with prominent anxiety. He stated that it appeared that the Applicant developed psychological distress in response to her perception of the behaviour of Mr Quinn.
47. We do not place great reliance upon the report of Dr Synnott as he did not obtain a full history from the Applicant. He stated at page four of his report that:
“In 2002/3 there was an issue relating to her work at ABS (she was accused of breaching the code of conduct) and she was forced to step down from work for twelve months – while the situation was investigated. During that time she became depressed and consulted Dr Greenway and took antidepressant medication, Citalopram.
Otherwise, there has not been a significant past medical history and there is no family psychiatric history.”
48. That history does not record the Applicant’s attendance upon Dr Chung, nor does it record her suicidal indentation and that she was an involuntary inpatient at a psychiatric hospital.
49. In a report dated 12 February 2007 to the Respondent, psychiatrist Dr Greenway stated:
“When I saw her later it was my opinion that there was no psychosis, but that a number of the features of which Ms Tang complained (believing that the television was telling her that the law was not equally applied to her and that people were looking at her walking down the street) were in fact symptoms of anxiety.”
Significantly he added:
“Unfortunately she returned to work in Canberra. Part of her symptoms had been a high level of anxiety about Canberra to the point where she could not even look at pictures of Canberra on television.
While in Canberra on the second occasion she again had difficulty at work. Once again she decompensated and felt herself becoming anxious.”
50. Dr Greenway concluded his report by stating:
“I suspect that there will be residual symptoms of the difficulties she had with the Australian Bureau of Statistics as well as the problems she has had in her more recent job.”
He added:
“I do believe that there is a relationship between Mrs Tang’s current condition and her employment, both at the Australian Bureau of Statistics and her most recent job. …Certainly I do not feel she is capable of returning to work in Canberra.”
51. It would appear that Dr Greenway was too pessimistic in his assessment of the Applicant as she is now once again working in Canberra.
52. At the request of her solicitor the Applicant was examined by psychiatrist Dr Gertler. He examined the Applicant on 14 November 2007 and his report is dated 26 November 2007. In that report Dr Gertler diagnosed the Applicant as suffering from a major depression. As to cause he opined:
“…the stress as described by Ms Tang at work contributed to the development of the major depression. The particular work stressors were the alleged behaviour of her supervisor towards her, aggravated by a perceived lack of support by senior management, an increasing lack of confidence in her ability to perform her work and the associated lack of self-esteem, increasing feelings of helplessness and hopelessness concerning her future.”
53. Dr Gertler’s opinion is predicated upon an acceptance of the Applicant’s account. For example he states:
“She did describe a previous history of major depression during the period 2002/2004 for which she received appropriate treatment and which resolved completely, such that she was symptom free when her employment with Tourism Australia commenced …”.
That the Applicant’s earlier episode of major depression had resolved completely is unlikely given the reports of Balmain Rehabilitation Services and that of her treating psychiatrist, Dr Greenway dated 31 May 2005, where the prognosis was of a slow and steady improvement.
54. In his report Dr Gertler referred to the Applicant speaking to the General Manager. Cross examined he stated:
“she said she had reported the behaviour of her supervisor to the Director of Tourism Australia. This was after February 2006 and prior to April.”
This is contradictory to the evidence of Mr Fairweather.
55. Dr Gertler did however state that the fact that the Applicant had experienced a previous episode of depression did render her vulnerable to further such episodes.
56. That the Applicant had a pre-existing vulnerability was also the opinion of Dr Phillip Brown, but for different reasons. In his report of 1 April 2010 he opines:
“However her pre-existing psychological constitution would remain and that is such that she would become anxious if her work performance were to be criticised and such be perceived as questioning her professional skills and threatening her employment and career”.
57. The report by Dr Brown is comprehensive and thorough and is based on a detailed history. In particular, as well as the clinical notes of Rozelle Hospital to which the Applicant had been admitted on the advice of Dr Chung, Dr Brown also had the clinical notes of the Applicant’s admissions to Calvary Hospital in the Australian Capital Territory (“ACT”).
58. In passing we note that whereas Dr Greenway did not accept Dr Chung’s diagnosis of a psychotic disorder this diagnosis was apparently concurred in by staff at Rozelle Hospital. As Dr Brown comments:
“There is sufficient psychiatric phenomenology in the accounts of Dr Chung and Rozelle Hospital to merit the diagnosis of a major depressive disorder, being an episode of the melancholic type of psychotic depth (paranoid delusions). Accepting this means that she has a constitutional propensity to episodes of this type be they spontaneous or precipitated by the stresses of the time.”
We note also that the clinical notes of Calvary Hospital also refer to suicidal thoughts. These matters confirm to us that the opinions of Dr Chung are to be preferred to Dr Greenway. Likewise the thoroughness of Dr Brown’s history convinces us that his opinion is to be preferred to Drs Synnott and Gertler.
59. Dr Brown’s opinion is that the Applicant has an adjustment disorder and depression. Commenting upon her state Dr Browne said:
“The manifestation of her anxiety level at any time includes various somatic symptoms. She also presents her symptoms in a dramatised fashion and overreacts to the stress of the time in such a manner.”
60. As to the cause of the Applicant’s adjustment disorder, Dr Brown said at pages 36 and 37 of his report:
“The significant precipitant of an Adjustment Disorder and MDE of the reactive type is the individual’s perception and attributions to significant events and this might not necessarily reflect the reality of these events as such perceptions and attributions may be shaped more by the individual’s psychological constitution than the Facts of the Matter. Thus her accounts of the matter at ABS and TA may be biased and so need to be tested against that of her employers.”
He added:
“In any event Ms Tang impressed as a highly motivated to achieve in her professional career, having obtained her university qualification whilst caring for her young children and working, and also as having psychodynamics which would be oversensitive to any thwarting of this career, including her work performance being criticised, be such criticism justified or otherwise. In my opinion such criticism which came to occur first in her ABS position (2003) and then in her TA position (2006) was the clinical cause of the psychological conditions which caused her to leave work and not be able to return to either position.”
61. Previously in his report, Dr Brown had opined that the onset of the Applicant’s psychological symptoms around April 2006 appeared related not to prior interactive events with her supervisor but to her unsatisfactory performance review in March 2006.
62. Incoming to his opinion Dr Brown was able to draw on the documented reaction of the Applicant to the disciplinary proceedings taken against her whilst employed at the ABS. Of those events he commented:
“This same analysis applies to the situation at ABS. The relevance of the ABS situation to the TA situation in my opinion is that the ABS situation had already displayed what her psychological reaction would be to criticism of her performance be it justified or otherwise in that:
·She would psychologically decompensate in either event;
·She would not be able to return to the position where she was criticised through fear (avoidant anxiety) of a recurrence of the criticism;
·She would need to secure an appropriate position for her qualifications, and career progression for her psychological condition to abate;
·This position would need to be, and perceived by her to be, and to remain, free of likely criticism of her work performance or threat to her employment and ongoing career.”
63. Dr Brown’s opinion as to the source of the Applicant’s problems was in our opinion confirmed by Dr Gertler who in answer to questions by the Tribunal said that a formal counselling would certainly have affected her self esteem and could have brought on a depression or made a pre-existing depression worse.
64. Ultimately, in a conclusion with which we agree, Dr Brown opined that the Applicant’s psychological conditions were a product of her psychological constitution being unable to accept appropriate criticism of her work, and instead of leaving the situation, projecting blame to others and remaining too anxious to return to face the situation she left.
65. Having seen and heard the Applicant give evidence, as well as receive evidence from Messrs Fairweather, Maurer and Quinn, we have no hesitation in preferring the evidence of those three gentlemen to that of the Applicant.
66. In our opinion they gave their evidence in a measured and cautious manner. In particular, Mr Quinn to some questions stated he could not recall whereas an outright denial would have been a more supportive of his evidence.
67. The Applicant made allegations of harassment and bullying against Mr Quinn. Those allegations were made after her performance review. She accused Mr Quinn of yelling at her. According to the reports of Dr Roldan a similar accusation of shouting was made against her superior at the ABS after disciplinary proceedings were instituted.
68. The Applicant’s account in cross examination as to how she came to leave her employment at Moody’s Investors Service Pty Limited does not conform to the reports in the documents from that company which became Exhibit R11.
69. Dr Bobba’s clinical notes reveal that the Applicant first consulted him on 24 May 2006 complaining of anxiety/depression “for one month this time”. That would place the onset of her illness as at mid April cf Dr Brown who placed the onset of her psychological symptoms at “around April 2006”.
70. Notwithstanding that the Applicant took some sick leave at that time, see Dr Bobba’s clinical notes for 31 May 2006, she continued in her position at Tourism Australia until she consulted Dr Cameron on 27 June 2006.
71. Given the report of Dr Brown we are satisfied that the onset of the Applicant’s symptoms began in April 2006 subsequent to her obtaining a less than satisfactory performance review. This then led to a decompensation on or about 26 June 2006 following the meeting between her and Messrs Maurer and Quinn, which meeting is recorded in the document dated 3 July 2006.
72. Consistent with the opinions of Drs Brown and Gertler, it would seem that having been informed that her performance was substandard and that unless she improved she would face dismissal, her psychological constitution led to the diagnosed anxiety state and depression.
73. Generally speaking an employer must accept the worker as they find them. If, as in this case, a worker is predisposed to reacting to justified criticism by developing a psychiatric illness then that is a matter the employer must be prepared to compensate.
74. An exception to that general proposition is the definition of “injury” in the SRC Act as it stood at the time of the Applicant’s claim. At that time, section 4 SRC Act defined injury as:
“(a) A disease suffered by an employee;
(b) …
(c) …
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee…”.
75. As to what constitutes “reasonable disciplinary action” was considered by Cooper J in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75. That case is distinguishable as it related to actions taken in the context of a disciplined force, namely the Australian Federal Police.
76. More pertinent to the present enquiry is the decision of Madgwick J in Comcare v Eames (2008) 101 ALD 90. In that case His Honour after referring in Chenhall supra found that steps taken in accordance with the Department of the Senate Procedures for Determining Breaches of the Parliamentary Code of Conduct constituted disciplinary proceedings.
77. Tourism Australia has what is termed a People and Culture Policy Manual. At document T51 of the documents prepared for the Tribunal pursuant to section 37 of the AAT Act, extracts of that document are reproduced; in particular Part 1.2 entitled “PERFORMANCE MANAGEMENT”. That document states inter alia:
“1.2.4 Procedure
Tourism Australia reviews employees throughout employment both formally and informally. If a performance issue is identified by Tourism Australia at any stage, the employee will be notified of the issue as soon as possible. If performance is unsatisfactory, the standard of performance required and the deficiencies that exist will be documented and the employee will be requested to sign the document. If the employee’s performance does not improve after notification of a performance issue… disciplinary action may then be instigated.
…
Step One: Verbal Warning
A verbal warning should be used when a manager first identifies an employee’s performance requires improvement. When a manager observes that an employee’s performance or conduct requires improvement, they must conduct a constructive, informal and private discussion with the employee.
… A file note detailing the decision will be produced. …
Step Two: First Written Warning
A written warning is to be issued when an employee has failed to respond to the previous verbal warning or has committed misconduct constituting a reasonably serious breach of work standards. …
…the employee will be advised that if their performance and/or conduct does not improve, then it may result in further disciplinary action and/or the termination of their employment. …
Step Three: Second and Final Warning
…
Step Four: Termination of Employment.”
78. Extracts from the letter handed to the Applicant following her interview with Messrs Maurer and Quinn on 26 July 2006 have been set out earlier in these reasons at paragraph 19.
79. We are satisfied that disciplinary action had been commenced following the Applicant’s March performance review and the documented discussion between her and Mr Quinn, see document T16 at page 32. The interview of 26 June 2006 was clearly Step Two of Tourism Australia’s disciplinary process.
80. As the Applicant’s anxiety state clearly developed as a result of the disciplinary proceedings against her, which proceedings were reasonable in that they were taken for good cause and observed the requirements of the People and Culture Policy Manual. Section 4 SRC Act (as it stood at the date of the Applicant’s claim) clearly mandates that the Applicant is not entitled to compensation pursuant to the SRC Act for her illness.
81. Furthermore we would add that we find that the Applicant’s allegations of bullying and harassment are totally unfounded and made in an attempt to avoid any findings that the Applicant’s illness was caused by reasonable disciplinary action.
82. The decision under review is AFFIRMED.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member
Signed: .....................[sgd].........................................
K. Lynch, AssociateDate/s of Hearing 25, 26 & 27 May 2010
Date of Decision 9 July 2010
Counsel for the Applicant Mr S Moffet
Solicitor for the Applicant Walker Legal
Counsel for the Respondent Miss R M Henderson
Solicitor for the Respondent Sparke Helmore
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