Thompson and Comcare (Compensation)

[2017] AATA 259

Thompson and Comcare (Compensation) [2017] AATA 259 (28 February 2017)

Division:GENERAL DIVISION

File Number:           2016/0978

Re:Graham Thompson

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:28 February 2017

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS

COMPENSATION – psychological injury – accepted that employment contributed to significant degree – whether Comcare not liable by reason of reasonable administrative action taken in a reasonable manner in respect of employee’s employment – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 5A(1)-(2), 5B(1), 14

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Hart v Comcare [2005] FCAFC 16

REASONS FOR DECISION

Senior Member J F Toohey

28 February 2017

1. Background Graham Thompson was employed by Australian Hearing from January 2011 until his resignation in November 2015.  For most of that time he was employed as a Senior Client Service Officer. 

2. On 16 May 2015, Mr Thompson lodged a claim for compensation for anxiety and depression as a result of “prolonged abuse” by a client on 21 November 2014, and his manager’s failure to support him following this incident.  He claimed that actions of his manager on 26 November 2014 and 5 December 2014 added to his distress.

3. Comcare denies liability to compensate Mr Thompson.

   Legislation

4. By s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), Comcare is liable to pay compensation in respect of an injury suffered by an employee if that injury results in death, incapacity for work, or impairment.

5. Injury in the Act includes a disease suffered by an employee: s 5A(1).  Disease means an ailment, or aggravation of an ailment, that was contributed to, to a significant degree, by the employee’s employment: s 5B(1). It is not in dispute that the condition for which Mr Thompson claims compensation is an ailment within the meaning of the Act.  It is not in dispute that the event, or events, of which he complains, contributed to a significant degree, to his psychological condition. Comcare contends, however, that it is not liable to compensate Mr Thomson by reason of the exclusion in s 5A(1) of the Act. 

6. Section 5A(1) provides that the meaning of injury in the Act “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”.

7. Section 5A(2) provides that, without limiting s 5A(1), reasonable administrative action is taken to include:

   (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.

8. Hart v Comcare [2005] FCAFC 16 established the principle that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of the causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury.

9. Comcare submits that the incidents on 21 and 26 November 2014 amounted, in effect, to a single event, and constituted reasonable administrative taken in a reasonable manner in respect of Mr Thompson’s employment.  On that basis, Comcare submits, Mr Thompson’s claim must fail.

10. As I understand the submissions, Comcare does not rely on the events of 5 December 2014 as constituting reasonable administrative action taken in a reasonable manner in respect of Mr Thompson’s employment.  For the reasons set out below, I am satisfied that the incidents on 21 November and 26 November 2014 of which Mr Thompson complains constituted reasonable administrative taken in a reasonable manner in respect of his employment.  Also for the reasons below, I am not satisfied that the action taken on 5 December 2014 was taken in a reasonable manner.  Nothing turns on this, however, because I find that that the events of 21 and 26 November 2014 fall within the exclusion.

    Events before 21 November 2014

11. Although he had dealt with difficult clients in the past, Mr Thompson maintains he and other staff had always been supported by his previous manager.  He says he had suffered no psychological symptoms of any sort before 21 November 2014, and there is no evidence to suggest otherwise. 

12. When he started working at Australian Hearing in January 2011, Mr Thompson was a supervisor.  As he described them to the Tribunal, his duties included management of the centre, supervision of staff, daily operations and compliance. 

13. In 2012, there was a restructure and a number of staff were made redundant.  Mr Thompson was one of several who were retained and moved “sideways” into Senior Customer Service Officer (SCSO) positions.  SCSO responsibilities did not include management or supervision of staff.  However, Mr Thompson says he acted as manager on “numerous occasions” such as when his manager went on extended leave.

14. In mid-2014, Mr Andrew Shaw became the centre manager, and Mr Thompson’s supervisor.  It was clear from their evidence that neither Mr Thompson nor Mr Shaw held the other in especially high regard.  When Mr Thompson first worked at Australian Hearing, Mr Shaw was employed as an audiologist.  They were in different “management reporting structures” but had frequent interaction.  According to Mr Thompson, Mr Shaw responded “negatively” when he had to speak to him about his “non-compliance with policies and procedures”.  In his view, Mr Shaw failed to offer guidance and support staff in dealing with difficult clients.

15. According to Mr Shaw, he had observed Mr Thompson interact with staff in an “unnecessarily aggressive or confronting way” on some occasions.  In his view, Mr Thompson had a “history of poor self-awareness” and his version of events was that “everyone else did something wrong and [he] did nothing wrong”.    

16. At the time Mr Shaw became centre manager, a former employee had made a complaint of bullying against Mr Thompson.  Mr Shaw was involved in the final stages of the investigation with others including Mr Andrew Krestovsky, the head of Human Resources at Australian Hearing. 

17. In a letter dated 19 September 2014 to Mr Thompson, Mr Krestovsky confirmed that the complaint was found to be not substantiated.  However, he asked Mr Thompson to consider whether there was “anything else he could have done” while working with the former employee “to maintain a more positive relationship with her”.  He observed that, while one of Mr Thompson’s responsibilities was to take a leadership role within the centre and assist in its management, none of the “front of house” staff reported directly to him and, there were certain interactions he had with the former employee, including concerning her performance, that were “best left to her manager to discuss with her”.

18. Giving evidence, Mr Thompson acknowledged that, in November 2014, management and supervision of staff was not part of his responsibilities, and that this had been made clear to him in September 2014.

    21 November 2014

19. According to Mr Thompson, on 21 November 2014, he was seated at his desk, four to five metres from the front counter where C, a casual employee, was speaking with a client who had arrived for an appointment.  There was some confusion about the appointment, and the client was angry and was raising her voice at C.  While C was trying to work out who had made the appointment, Mr Thompson turned around from his desk and suggested who might have made it.  According to Mr Shaw, other staff reported that he called out to C several times to get his attention. 

20. The client apparently objected to Mr Thompson’s intervention and started directing her abuse at him.  Mr Thompson says he explained to her that he had been talking to C and turned back to his desk.  This apparently made the client angrier and she continued her abuse, demanding Mr Thompson’s name. 

21. When the client’s abuse continued, C asked Mr Shaw to intervene.  Mr Shaw gave evidence that he spoke to the client, and then to C and other employees who had been nearby, and all gave consistent accounts of what had occurred and of Mr Thompson’s intervention.

22. A short time after this, there was a discussion between Mr Shaw and Mr Thompson.  According to Mr Shaw, he knew from speaking to the client that she had been rude to Mr Thompson and wanted his side of the story.  He asked Mr Thompson if he wished to discuss the incident then, or later.  It is common ground that Mr Thompson agreed to speak then, and said words to the effect that “it would not take long”. 

23. According to Mr Shaw, he asked Mr Thompson what had happened and to “…include a reflection on how the situation could have been handled better”.  However, Mr Thompson became visibly angry and upset, and terminated the conversation; a short time later he left for the afternoon (which was a Friday) and did not return until the following Wednesday, 26 November 2014.

24. Mr Thompson gives a different account of this conversation.  He says Mr Shaw opened the conversation by saying he had spoken to C and the client, that Mr Thompson was in the wrong, and he would be supporting them.  Mr Thompson maintains Mr Shaw did not ask his version of events or how he might have handled things better.  Under cross-examination, he was “100 per cent” sure that Mr Shaw did not ask how he might have handled the situation better.  He acknowledges he became upset during this meeting, and said he was leaving.  Having ascertained there were enough staff on duty, he went home.   

25. Mr Thompson says he was upset and anxious following this incident, and could not sleep.  He saw a doctor at a medical centre over the weekend, and his own doctor on 1 December 2014.  As the only issue presently in dispute is whether the exception concerning reasonable administrative action applies, it is not necessary to go into details of that, and subsequent, visits to his doctors.

26. Mr Shaw gave evidence that he spoke to his “HR Business Partner” and expressed his concerns about Mr Thompson’s “pattern of behaviour”.  She advised him to wait until he returned to work, listen to his side of the story and then discuss what they should do.

    26 November 2014

27. Mr Thompson says he still felt anxious and distressed when he returned to work on 26 November 2014.  At 8.19am, he sent the following email to Mr Shaw:

    Following prolonged, aggressive, abusive bullying and harassment by [the client] on Friday 21st Nov, I verbally requested you as Manager to lodge a complaint, on behalf of all staff, with her Employer.

    Has this been completed?

    If so what was the outcome? An apology?

    If not I look forward to hearing a response.

    In the interim has [the client] been advised not to attend [the premises]?

    If not, what are the reasons? – as her presence adversely affects the health, welfare and well being [sic] of staff this is a workplace health and safety issue.

    Your comments re: what I could do better and its implication of nonsupport, [sic] instead of addressing the abuse and my welfare added to the stress and anxiety. Hence the reason for taking time in lieu that afternoon and subsequent stress leave.

    The CSO involved in the abuse and aggressive conversation with [the client] escalated the situation, resulting in it becoming prolonged and causing distress within the Centre. I had no conversation or interaction with [the client] aside from “excuse me I am talking to [C]”. This occurred when she decided to direct her abuse and harassment at me while I was having a quite (sic) and private conversation with [C] regarding CSC staff. 

28. Mr Shaw and Mr Thompson met at 4pm that afternoon.  Again, their versions of their conversation differ.

29. According to Mr Thompson, Mr Shaw started the conversation with a sarcastic comment to the effect that he must be feeling better after a couple of days off; he said he supported the client, even though he had not sought Mr Thompson’s version of events.  He gave Mr Thompson an “ultimatum”: to accept he had acted inappropriately or there would be consequences.  

30. Mr Thompson says Mr Shaw showed no concern for his psychological health and wellbeing.  He maintains Mr Shaw did not ask for his version of the incident and again did not ask if he could have handled the situation better.  It is clear from Mr Thompson’s email that Mr Shaw did ask him on 21 November 2014 what he could do better, a comment he took to imply a lack of support.  Mr Thompson claimed he wrote the email “in haste”.

31. Mr Shaw disputes Mr Thompson’s account.  He says he opened the conversation by saying he had tried to talk to Mr Thompson on the previous Friday but he walked out before he could hear his side of the story or provide feedback.  He said he wanted to discuss Mr Thompson’s concerns.  Mr Thompson said he had nothing to add to the email he sent earlier that day.

32. Mr Shaw’s extensive written notes (which he acknowledges he compiled sometime after the event) show that they discussed Mr Thompson’s email.  Mr Shaw said in his view, the client’s behaviour was not “bullying” but it was “inappropriate”.  He raised complaints about Mr Thompson’s conduct by other clients, but Mr Thompson did not acknowledge that his behaviour needed to change.

33. After this meeting, Mr Shaw talked again to “HR” and decided he should give Mr Thompson a formal warning because of his pattern of “inappropriate behaviours”, his rejection of feedback, complaints by customers, and the incident on 21 November 2014.

    5 December 2014

34. On 5 December 2014, there was a further meeting between Mr Shaw and Mr Thompson. Mr Shaw gave Mr Thompson 24 hours’ notice of the meeting, and Mr Thompson arranged for this union representative to attend by telephone. 

35. At this meeting, Mr Shaw presented Mr Thompson with a letter dated 3 December 2014 headed “Formal Warning Letter”.  It confirmed that Mr Shaw had “a number of serious concerns” regarding Mr Thompson’s behaviour at work which had been raised with him during a meeting on 26 November 2014.  It cited a “number of occasions where we have discussed your behaviour and ability to take feedback on board” and cited further occasions of “unsatisfactory behaviours”, specifically on 20 October 2014, and 21 and 26 November 2014.

36. The letter asked Mr Thompson to take the matter seriously and “further reflect” on how he could accept responsibility and act on constructive feedback. It concluded that, should there be further instances of unsatisfactory behaviour, Australian Hearing would consider all its options, including further disciplinary action, which might lead to termination of his employment.

37. Because I find that the events of 21 and 26 November 2014, taken as a whole, constituted reasonable administrative action taken in a reasonable manager in respect of Mr Thompson’s employment, the exclusion in s 5A(1) applies regardless of a similar finding about what happened on 5 December 2014.    

38. The details of the complaint on 20 October 2014 are not important but Mr Shaw acknowledged in evidence that he did not have Mr Thompson’s response to the complaint before finding his behaviour “unsatisfactory”.  On that basis, it is difficult to see how the entirety of the formal warning was reasonable administrative action taken in a reasonable manner.  However, it is not necessary finally to determine this question.

    Reasonable administrative action taken in a reasonable manner?

39. Although Mr Thompson maintained he spoke “politely” and “in private” to C, it is clear from his own evidence that his intervention was neither.  He remained at his desk throughout.  When pressed, he acknowledged that his intervention was audible to the client as well.  He acknowledged that turning away from the client may have added to her agitation.  He acknowledged that it was not his role to intervene at all and conceded that doing so was a “left-over” from his management role.  Although he maintained he was only giving C “administrative support”, it is clear that his intervention only inflamed the situation.

40. I prefer Mr Shaw’s evidence about the conversations on 21 and 26 November 2014 to Mr Thompson’s evidence. Mr Shaw gave his evidence forthrightly and without embellishment.  Mr Thompson claimed he intervened to help C because Mr Shaw would have criticised him if he had not done so.  Given the clear instruction in September 2014 about not involving himself in management responsibilities, I do not accept there was any basis for him to fear criticism by keeping to himself.

41. I am satisfied that Mr Shaw gave Mr Thompson an opportunity to explain his side of things on 21 and 26 November 2014 but he declined to do so.  I accept that Mr Shaw may have made clear to Mr Thompson that something needed to be done about his behaviour but I do not accept that Mr Shaw gave him an ultimatum, as Mr Thompson claimed.

42. I am satisfied that, in speaking, or attempting to speak to Mr Thompson on both occasions, Mr Shaw was undertaking reasonable administrative action in respect of Mr Thompson’s employment.  For Mr Thompson it was submitted that the conversation on 21 November 2014 could not be reasonable administrative action because it was so truncated; it was no more than an “evidence-gathering” exercise.  I do not accept that submission.  Insofar as it was truncated, it was because Mr Thompson walked out.

43. In Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, the Full Federal Court observed, citing the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, that an objective of the exclusion in s 5A(1) was: 

    …to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation. 

44. Rares and Tracey JJ (with whom Gray J, expressing matters differently, agreed) said, at [63], there could be no doubt, from the non-exhaustive list of actions in s 5A(2) about the width of the expression “reasonable administrative action” in s 5A(1).  That said, each of those actions concerned:

    …something outside the actual employment, or job, that the employee was required to perform.  …Each … was a matter that was in respect of, but apart from, ordinary duties or tasks of the employee’s employment or job itself.” 

45. I am satisfied, in the circumstances, that Mr Shaw’s action in speaking to Mr Thompson after what occurred on 21 November 2014, and 26 November 2014 which was essentially a continuation of that incident, was reasonable administrative action taken in respect of Mr Thompson’s employment.  Mr Shaw was required to intervene when the client continued her abuse.  She complained about Mr Thompson and Mr Shaw had reason to believe, based on previous experience and from what C told him, that Mr Thompson may have made matters worse.

46. Mr Shaw’s action in speaking to Mr Thompson on both occasions, can be characterised as a reasonable informal counselling action, or something reasonable done in connection with informal counselling action or reasonable informal disciplinary action.

47. I am satisfied that Mr Shaw undertook that action in a reasonable manner.  On 21 November 2014 he gave Mr Shaw the choice of discussing what had happened then or later.  Against the background of events in September 2014, it was reasonable to ask Mr Thompson what he might have done better.  On 26 November 2014, Mr Shaw gave Mr Thompson notice of their meeting and allowed him to have a union representative present.  I am satisfied that Mr Thompson was given a fair opportunity to present his side of things.  

1. I do not accept that Mr Shaw failed to accord Mr Thompson procedural fairness.  For Mr Thompson it was submitted that Mr Shaw demonstrated bias in his approach to Mr Thompson.  I do not agree.  It would be unreal to pretend that Mr Shaw did not have a view about Mr Thompson’s performance.  Mr Krevstovky’s letter in September made clear that Mr Thompson’s performance was of concern.  That is not the same as saying he was biased in his dealing with Mr Thompson. 

2. Mr Thompson asserts that Mr Shaw failed to follow workplace policy by failing to support him and treat him with respect.  I do not agree.  I am satisfied that, despite their history, Mr Shaw treated Mr Thompson reasonably, and with respect and courtesy. 

   Conclusion

3. I am satisfied that what occurred on 21 and 26 November 2014, being the incidents that it is agreed contributed to a significant degree to Mr Thompson’s ailment, was reasonable administrative action taken in a reasonable manner in respect of his employment.  It follows that Comcare is not liable to compensate Mr Thompson for injury suffered as a result of those incidents.

4. I affirm the decision under review.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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Associate

Dated: 28 February 2017

Date of hearing:	30 & 31 January 2017
Counsel for the Applicant:	Mr A Coombes
Solicitors for the Applicant:	Slater & Gordon Lawyers
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Lehmann Snell Lawyers