Trimboli v Camp Australia
[2014] VMC 21
•16 OCTOBER 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No. E10565251
| JOSIE TRIMBOLI | Plaintiff |
| v | |
| CAMP AUSTRALIA | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 30 SEPTEMBER, 1 & 2 OCTOBER 2014 |
DATE OF DECISION: | 16 OCTOBER 2014 |
CASE MAY BE CITED AS: | TRIMBOLI v CAMP AUSTRALIA |
REASONS FOR DECISION
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Catchwords: S 109 Rejection of claim – adjustment disorder with anxiety & depression – s 102, 103 (5) and 82 (2A) relied on – whether ‘management action’ taken on reasonable grounds and in a reasonable manner – held: ‘management action’ taken on reasonable grounds but not in a reasonable manner.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Johnstone | Nowicki Carbone |
| For the Defendant | Mr Chammings | Wisewould Mahony |
HIS HONOUR:
1 Mrs Trimboli is aged 56 years and was employed by the defendant as a Before School and After School Care Co-ordinator from 2007. It is not in dispute that she sustained an adjustment disorder with anxiety and depression which arose on 8 November 2010 in the course of her employment. She ceased work on that date following a meeting with her employer's representatives but did not lodge a WorkCover claim until 25 October 2013. The defendant denied liability on 25 November 2013 and relied on the special defences contained in s 102, 103 (5) and 82 (2A) of the Act.
2 The court heard evidence from Mrs Trimboli and Mr Tankard, the defendant’s former Regional Co-ordinator and now Operations Manager and numerous documents, medical reports and a DVD were tendered in evidence.
3 The evidence revealed that Mrs Trimboli had been involved in various voluntary roles with St Mary’s Private Catholic Primary School and the Church in Ascot Vale for many years. She became the Before and After-school Care Co-ordinator in 2007. This role required her to supervise and organise activities for approximately 20 children between 7 a.m. and 8:30 a.m. and 3 p.m. and 6 p.m. Monday to Friday of each week. She would also prepare and supply breakfast and afternoon tea for the children. During the afternoon session she received assistance from Rita Briffa. The defendant took control of the program on behalf of the school in 2002-3. Due to her long involvement with the church and school, Mrs Trimboli continued to have regular and direct dealings with the schools teachers and parents whilst running the program on behalf of her employer.
4 Mrs Trimboli gave evidence that on 8 November 2010 at the request of Ms Jeffrey, the defendant’s Human Resources Manager, she attended a meeting with Ms Jeffrey and Mr Tankard without any forewarning of what was to be discussed. She said that during the meeting she was informed that her employer had received complaints about her behaviour from the school community, a parishioner and Rita Briffa. She said that despite requesting particulars of those complaints, she was only told of one, that being that she had reduced the hours of Rita Briffa without the authority to do so. Mrs Trimboli told the court that she was told that she had to undergo training but indicated to them that she would rather resign. She said that after a short adjournment of the meeting, Ms Jeffrey and Mr Tankard returned and presented her with a formal letter titled, “Notification of First Written Warning”.
5 The document which was tendered, listed the following five matters of concern:
· Breach of Camp Australia’s Policies and Procedures, including the Code of Conduct;
· Unprofessional and disrespectful conduct towards a Camp Australia employee in the OSHC Service;
· Inappropriate communication of feedback given to a Camp Australia employee in OSHC Service;
· Amending the rostered hours of a Camp Australia employee in the OSHC Service without approval;
· Inappropriate communication within the school community.
6 The document also informed her that she was to immediately step down as co-ordinator to an assistant position until improvement took place in relation to:
· Adhering to Code of Conduct and Camp Australia policies and procedures;
· Treat all Camp Australia employees professionally and with respect;
· Ensure all feedback given to a Camp Australia employee is relevant to their position and communicated in an appropriate manner;
· Adhere to the OSHC roster issued from Camp Australia Head Office;
· Maintain proper standards of integrity and professional communication within the school community.
7 Mrs Trimboli told the court that she was also presented with a document titled “Performance Improvement Plan” which set out in general terms areas requiring improvement, training and support requirements and review of performance. She said that this document was discussed during the meeting although the Code of Conduct document referred to was not given to her during the meeting and she could not recall ever receiving it.
8 Mrs Trimboli gave evidence that she was “very hurt” by what had occurred as she had no idea that complaints had been made and was taken by surprise at the meeting because none of the issues raised had previously been discussed with her. She said that over the ensuing months she became very ill and was experiencing anxiety, hyperventilation and insomnia. She said that despite requesting specific details of the allegations she was not provided with them and did not receive any information from her employer concerning further training until 14th February 2011 following her indication to her employer that she would participate in it. She told the court that she received a letter from her employer informing her that she was to attend the Carlton North Primary School from 28 February to participate in a 4 week development plan. Mrs Trimboli gave evidence that initially she did not want to attend and participate in the plan because she considered that by doing so would be an admission by her that she had done something wrong and that ultimately she was not able to participate in it because she was too ill to do so.
9 Mrs Trimboli told the court that she subsequently discovered who she believed had made complaints about her which included a former Principal, Mr Mogg, a teacher, a parishioner and Rita Briffa. Mrs Trimboli formed the view that there was a conspiracy between others to get rid of her. Her belief and the reasons as to why she formed this belief are not relevant to the determination of the matter.
10 Mrs Trimboli told the court that she did not lodge her claim for compensation until October 2013, almost 3 years since ceasing work with the defendant, because she was unwell, she believed her employer would conduct a thorough investigation, ultimately admit that they were wrong in disciplining her and would request that she return to work. She told the court that she did seek legal advice in March 2011 but suffered anxiety attacks when discussing the circumstances surrounding her ceasing work in and was not able to pursue the matter further at that time. Mrs Trimboli said that she did not resign nor has her employment been terminated by the defendant.
11 In cross examination, Mrs Trimboli agreed that she knew by March 2011 that she was suffering from anxiety and depression causing her to be incapacitated for work and that it was related to her employment. She disputed that she was told she could take a “support person” to the meeting on 8 November. She denied the allegation that she had yelled at Rita Briffa in front of the children and conceded that this may have been discussed at the meeting. She agreed that she did not respond to all of the issues raised at the meeting because she said she needed details about them and she was “taken aback” by what was occurring. She also said that although she was presented with the letter detailing the “general” issues and the Performance Improvement Plan it was not explained to her in detail as to what she was alleged to have done wrong requiring the implementation of a Performance Improvement Plan.
12 Mrs Trimboli denied the allegation that she had changed the roster of Rita Briffa and said that she did not have the power to do so. She told the court that a number of weeks after the meeting Ms Jeffrey verbally told her that she would withdraw that allegation and confirm it in writing which she never did. Mrs Trimboli initially denied that she had resigned during the meeting but did concede that she may have mentioned that she would rather resign than undergo the suggested training. When questioned as to why she delayed lodging her claim until October 2013 she said that during the period after ceasing work she was housebound, could not speak to others, could not eat, had insomnia and laid on her couch in a “black room” because of her depression.
13 Mrs Trimboli agreed that after ceasing work with the defendant she did establish an After-School Care program from home looking after children from St Mary's Primary School. However, she said that only five children were involved for two days per week and that she only did this work a period of two years. She told the court that she was able to cope because she had the assistance of her daughter and she was taking medication. She said that the fees paid did not cover her expenses in running the program.
14 Mrs Trimboli told the court that she still has difficulty in leaving her home without being accompanied by members of her family and that she increases her medication intake when she does so. The court was shown a DVD of 11 minutes duration depicting the activities of Mrs Trimboli on 11, 15 and 18 September 2014. The DVD depicts her outside her house talking to other people, travelling in a car to her doctors and attending a nail salon for a period of approximately 30 minutes to have her nails manicured.
15 Mr Tankard gave evidence that he became involved in the Performance Improvement Plan process because Ms Jeffrey had received an email from the Principal of St Mary's Primary School listing his concerns relating to the behaviour of Mrs Trimboli towards Ms Briffa, reducing her hours, her unprofessional conduct in yelling at Ms Briffa in front of children and her failure to comply with policies. Mr Tankard described her conduct as not being a “good Camp Australia advocate”. He said that Mrs Trimboli was running the program as if she “owned” it. He said one example of this was her refusal to wear the defendant's uniform which included its logo. He said that during the meeting on 8 November, the Performance Improvement Plan was discussed in detail as was the defendant's Code of Conduct policy. He said that Rita Briffa was not prepared to participate in the meeting because she was “scared” of Mrs Trimboli. He said that during the meeting, Mrs Trimboli was upset and defensive and that she initially refused to participate in the four week improvement development program and said that she would resign. He said that he told Mrs Trimboli to go home and think about her options and that later told him she would not work at another service as an Assistant as had been requested. He said that when he had heard no further from her he believed she had resigned.
16 In cross examination, Mr Tankard told the court that Mrs Trimboli was not performing as a Camp Australia “advocate” because there were issues concerning her; dealings with families; changing the roster of Rita Briffa; failing to wear the defendant's uniform; and, failing to comply with the defendant's policy concerning the supply of nutritious food to the children. He told the court that the defendant provided the appropriate food but despite that policy Mrs Trimboli would make her own pasta and other foods and provide them to the children. In relation to the alleged problems associated with her “dealings with families”, Mr Tankard said that the defendant had received “general feedback” from others, including the Principal, Mr Mogg that she was not following policy regarding appropriate interaction with parents. When questioned further, Mr Tankard referred to an email from Mr Mogg to Ms Jeffrey which he could not produce, did not know where it was presently located and conceded that he had not spoken to Mr Mogg about its contents. He was unable to provide details to the court of what the specific problems were in relation to the issue of her “dealings with families”. Neither could he provide specifics as to when and where it was alleged that Mrs Trimboli had yelled at Mrs Briffa in front of the children or provide details as to the dates Mrs Trimboli was alleged to have altered the rostered shifts of Rita Briffa. Mr Tankard told the court that he had personally observed Mrs Trimboli failing to wear the defendants uniform on two occasions in 2010 which he addressed with her at the time and he had also observed during 2010 that she had prepared her own meals for the children contrary to the defendant’s policy. Mr Tankard was unable to confirm whether these issues were followed up and was also unsure as to whether Mrs Trimboli was subject to an Induction process or provided with the defendant’s Code of Conduct when she commenced employment.
17 Mr Tankard gave evidence that he recollects that all issues relating to Mrs Trimboli and the defendant’s Code of Conduct were discussed at the meeting on 8 November. When his attention was directed to the contents of the written warning he was unable to confirm that all issues were in fact discussed. He did confirm that Mrs Trimboli was not asked to respond to all of the matters raised in the meeting and he could not recall if she had requested specific details of the general allegations that had been made about her. Mr Tankard was unable to state whether she was given warning as to the details of what was to be discussed at the meeting or whether she was informed that she was able to bring a “support person” to the meeting. He said that he cannot recall whether complaints were made about Mrs Trimboli by teachers, parents or a parishioner and did not believe that Minutes of the meeting were taken. He agreed that the Performance Improvement Plan was prepared prior to the meeting and ultimately conceded that the meeting was part of a disciplinary process after previously giving evidence that it was not but was of the opinion that the Performance Improvement Plan process was not.
18 Mr Tankard conceded that he has not seen a letter of resignation or letter of termination but believes Mrs Trimboli did resign during the course of the meeting. When it was put to him that the defendant had made arrangements for her to attend training at Carlton North Primary School in February 2011 and acknowledged receiving a medical certificate of incapacity in March 2011, he conceded that it appeared that she had not in fact resigned.
19 The defendant informed the court that it was unable to locate Mr Mogg or Ms Jeffrey in order to call them to give evidence and that Rita Briffa was suffering from a stress-related illness and had produced a certificate as being unfit to attend court to give evidence.
Medical Evidence
20 Dr Byrne, treating General Practitioner, reported that he first saw Mrs Trimboli on 12 November 2010 and that she was experiencing acute panic attacks. He referred her for psychotherapy and then psychiatric treatment. He diagnosed her as suffering from a panic disorder with agoraphobia and depression. On 22 July 2014, he considered her to have no work capacity. Dr Tieppo, Psychiatrist, reported that he last had contact with Mrs Trimboli on 15 June 2012 and diagnosed her as suffering a panic disorder with agoraphobia and a major depressive disorder. Dr Wijeratne, Psychiatrist, reported that he first saw Mrs Trimboli on 3 March 2014. He noted she was taking medication in the form of; Escitalopram 40 mg; Imovane 7.5 mg; Diazepam 5 mg; Ativan 1 mg; and, Atenol 50 mg. He diagnosed her as suffering with major depression and anxiety with panic attacks. Dr White, Psychiatrist, assessed Mrs Trimboli for Gallagher Bassett on 11 November 2013. He diagnosed her as suffering a chronic adjustment disorder with mixed anxiety and depressed mood. He opined that she did not have a capacity for employment. Dr Strauss, Consultant Psychiatrist, assessed Mrs Trimboli on 6 August 2014 on behalf of the defendant's lawyers and expressed the opinion that she suffers from major depression and a panic disorder.
21 The defendant tendered its Code of Conduct policy which purports to set guidelines for staff to ensure that;
· the organisation runs efficiently and effectively;
· staff are treated fairly and appropriately;
· disciplinary action does not come as a surprise; and
· professional standards and behaviour are displayed at all times whilst staff are on Camp Australia business.
Conclusion
22 The defendant is not successful in its reliance on the special defence contained in s 102 (5). The defendant was aware that Mrs Trimboli was suffering from anxiety symptoms during and following the meeting on 8 November 2010. The defendant was also aware that she was medically unwell in early 2011 so as to be incapable of participating in the Performance Improvement Plan at Carlton North Primary School in late February 2011. The fact that she did not provide medical certificates verifying her incapacity for work until March 2011 has not caused ‘unfair prejudice’ to the defendant as contemplated by s 102 (6)(b). To allow reliance on s 102 (5) would result in ‘serious injustice’ to Mrs Trimboli as contemplated by s 102 (6)(c) as it would cause her to be disentitled to compensation including weekly payments and reasonable medical and like expenses under the Act without her claim being determined on its merits.
23 The defendant also relies on the special defence contained in s 103 (5). The defendant asserts that Mrs Trimboli has failed to satisfy the court that she could not reasonably have made her workcover claim while employed by the defendant. S 103 (7)(a) also provides that she should have lodged her claim for weekly payments as soon as practicable after the incapacity arising from her injury became known. I accept that Mrs Trimboli was aware at least from the first time that she saw Dr Byrne on 12 November that she was suffering from anxiety and depression precipitated by what she believed were false accusations at her place of employment.
24 It was submitted on behalf of Mrs Trimboli that s 103 (5) is not applicable on the basis that there is no evidence to indicate that she does not remain employed by the defendant. Notwithstanding what she may have said in the meeting on 8 November regarding resigning, it is clear that the defendant’s conduct in 2011 indicated that it still considered her to be an employee. The defendant arranged for her to work at Carlton North Primary School as an Assistant as part of the Performance Improvement Plan. Furthermore, it acknowledged receiving her medical certificates of incapacity in March 2011 certifying incapacity until 29 April 2011 and wishing her all the best in her recovery and indicating it would contact her after that date, presumably to ascertain whether she was well enough to participate in the Performance Improvement Plan. The evidence indicates no further contact between Mrs Trimboli and the defendant until the lodgement of her claim in October 2013. In that period she established her own business running an After School Care program for students belonging to St Mary’s Primary School. In my opinion, the conduct of both parties since March 2011 amounts to an abandonment of the employment relationship. Therefore, I do not accept the validity of the ‘technical’ argument raised on her behalf on this issue.
25 Notwithstanding my finding, I find that Mrs Trimboli had a ‘special excuse’ for not making her claim within the applicable time limit as contemplated by s 103 (8). I accept her evidence that because of the nature and extent of her mental condition she had extreme difficulty in coming to terms with the circumstances surrounding the cessation of her employment having regards to her long and intimate association with the School and the Church. This is also supported by her evidence that she attempted to obtain legal advice concerning her entitlements in 2011 but was unable to provide proper instructions due to her anxiety which resulted in panic attacks when being interviewed by the lawyer. The medical evidence supports that she was unwell between 2011 and 2013 and was taking high dosages of medication. I also place some weight on the evidence she gave that she initially delayed pursuing a claim in the belief that after a thorough investigation the employer would find the allegations had no merit and re-instate her to her former position. In all the circumstances, it is appropriate to extend the time limit for lodgement of her claim to 25 October 2013.
26 Although I accept that her failure to prosecute her claim has caused some prejudice to the defendant in that Mr Mogg and Ms Jeffrey were unable to be located and therefore summonsed to give evidence, the defendant did not provide details of their efforts to locate these witnesses nor did it make application for the hearing to be adjourned in order to make further efforts to find them. In any event, Mr Tankard was able to give evidence of his recollections of what occurred and he could have, if requested, produced documentation relevant to some of the contentious issues. Accordingly, after considering all of the evidence the operation of s 102 and/or s 103 should not avail the defendant of a special defence to the claim by Mrs Trimboli for weekly payments and medical expenses.
27 There is no dispute between the parties that the action taken by the employer constitutes ‘management action’ as defined in s 82 (10) (a), (b), (c), (d) and (l). In my opinion, the evidence supports a finding that the ‘management action’ taken was based on reasonable grounds. I accept the evidence of Mr Tankard that issues concerning the performance and behaviour of Mrs Trimboli was brought to the attention of the defendant by Mr Mogg and “others” which needed to be addressed. The real issue for determination is whether that action was taken in a ‘reasonable manner’.
28 In Krygsman-Yeates v State of Victoria [1], I referred to a number of cases concerning the meaning of ‘reasonable’ when determining this issue. At paragraph 35 (f) I said:
[1] 4 November 2011.
when considering the “reasonableness” of that action, it is to be considered objectively having regards to all of the circumstances leading to it being taken and the manner in which it is taken in a global context taking into account:
(i) that the management action and the manner in which it is taken should not be irrational, absurd or ridiculous but moderate and fair; and,
(ii) the judgement is whether the action taken was done “reasonably” not whether it could have been done more reasonably or in a different way more acceptable to the court; and,
(iii) the action and the manner in which it is taken may be reasonable even if particular steps involved are not; and,
(iv) the action and the manner in which it is taken should be assessed at the time it is taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker.
29 I found Mrs Trimboli to be an honest and credible witness. The surveillance material did not affect my assessment of her credit. Whilst it may have demonstrated that she is not as “housebound” as she attempted to portray to the court it does not lead to a conclusion that she did not give an honest and genuine account of what occurred on 8 November and thereafter. I accept the evidence of Mrs Trimboli that she was not given any warning by Ms Jeffrey as to the nature and purpose of the meeting on 8 November. I also accept her evidence that she was not informed that she could take a ‘support person’ to the meeting and that as a consequence she was “taken by surprise”. Although Mr Tankard said it was the employer’s policy that disciplinary action should not come as a surprise and that employees were told they could be accompanied by a ‘support person’ he had no knowledge as to whether it actually occurred in this case.
30 I accept the evidence of Mrs Trimboli that not all of the issues listed in the ‘Notification of First Warning” letter given to her at the meeting were discussed. Mr Tankard was unsure as to whether they were nor could he recall as to whether specific examples of all the areas of the employer’s concerns were provided to Mrs Trimboli thereby giving her a reasonable opportunity to respond to the allegations that were being made.
31 Mr Tankard gave evidence that Minutes of the meeting were not kept and he was unable to dispute the evidence of Mrs Trimboli that during the meeting and subsequent to it she had made requests for specific examples of her failure to comply with the employer’s Code of Conduct so that she could respond to them. Mr Tankard was not able to produce the email from Mr Mogg which was the genesis of the disciplinary process or any business records relating to the investigation that was undertaken by the employer or records relating to the altered rosters of Ms Briffa. Furthermore, he conceded that he had not discussed the contents of the email with Mr Mogg prior to embarking on the disciplinary process.
32 In all the circumstances it could not be said that the ‘management action’ was undertaken in a reasonable manner when applying the criteria set out in the decision of Krygsman – Yeates. It was not conducted in a fair manner. Mrs Trimboli was entitled to be given warning as to why the meeting was being conducted and having regards to the matters that were to be discussed and her long and involved history with the School and Church it should have been obvious to those conducting the meeting that it would have caused her significant discomfort to be told that a number of people within the school community, including a work colleague had made complaints about her. She should have been told that she could have brought a ‘support person’ to the meeting and she should have been given specific and detailed information as to why her behaviour had breached her employer’s Code of Conduct. The defendant was in breach of its own policy by not giving her warning of the disciplinary process.
33 Accordingly, the defendant’s reliance on s 82 (2A) is not successful. Mrs Trimboli has sustained a compensable injury within the meaning of the Act and she is entitled to weekly payments of compensation and reasonable medical and the like expenses in accordance with the Act. On the evidence it appears that she had no capacity for employment for a period after ceasing work and then had a current work capacity for the period in which she ran her own After School Care program. The medical evidence indicates that at the present time she has no current work capacity which is likely to last indefinitely.
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