Tucker and Comcare
[2014] AATA 181
•3 April 2014
[2014] AATA 181
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0884
Re
Annamarie Tucker
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal John Handley, Senior Member
Date 3 April 2014 Place Melbourne The decision under review is set aside and in substitution it is decided:
1. the applicant has suffered an adjustment disorder with mixed anxiety and depressed mood (the disease) contributed in a significant degree by the employment and is deemed to have been sustained on 23 March 2011.
2. The disease was suffered as a result of administrative action initiated by the employer which was not reasonable and was not taken in a reasonable manner. The entitlement of the applicant to compensation is not denied by the exclusionary provisions of s. 5A(1) of the Safety, Rehabilitation and Compensation Act 1975 (SRC Act).
3. The application is remitted to the respondent to determine the applicant’s entitlements to compensation pursuant to the SRC Act.
4. The respondent shall pay the applicant’s legal costs and disbursements to be determined pursuant to paragraph 6.10 Guide to the Worker’s Compensation Jurisdiction (version 2.0).
.....[sgd]..................................................................
John Handley, Senior Member
WORKERS’ COMPENSATION – diagnosis of adjustment disorder with mixed anxiety and depressed mood conceded – whether the result of reasonable administrative action – internal review process implemented – applicant’s complaint to manager ignored – applicant not advised she was the respondent in the process – findings made against applicant – published findings provided in heavily redacted form – the process was administrative action – was not taken in a reasonable manner – procedurally unfair – the disease not excluded by section 5A – contribution to it was by a significant degree – decision set aside, substituted and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1975, section 5A and 5B
Administrative Appeals Tribunal Act 1975, sections 20(2)Cases
Comcare v Martinez (No 2) (2013) 212 FCR 272
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463Workcover Corporation of South Australia v Summers (1995) 65 SASR 243
REASONS FOR DECISION
John Handley, Senior Member
3 April 2014
Mrs Tucker, the applicant, commenced employment with the Department of Defence (the Department) in 2005. On 10 February 2011, she was employed as a payroll officer at APS level 3 and was working in the Civilian and Overseas Personnel Administration Centre in Melbourne.
On that date, an incident, involving the applicant and another employee occurred. Appropriate officers of the employer were notified and an investigation into it was undertaken.
The parties agreed that process was administrative action. The applicant contends, contrary to the position taken by the respondent, that the administrative action was not reasonable and was not taken in a reasonable manner (s. 5A of the SRC Act).
The parties also agree that the applicant did suffer injury, being a disease, which arose out of or in the course of her employment being adjustment disorder with mixed anxiety and depressed mood.
The parties do not agree on the date of injury (s. 7 (4) of the SRC Act). The applicant submitted the injury should be deemed to have been sustained on 24 March 2011. The respondent submitted the date of injury was 19 August 2011 when the applicant was admitted to hospital with a complaint of chest pain.
THE LEGISLATION
Section 5A(1) of the SRC Act, which defines injury, relevantly provides that an injury means a disease suffered by the employee or a physical or mental injury arising out of or in the course of the employee’s employment. However, a disease or an injury suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment is excluded.
At subsection (2), the phrase, reasonable administrative action, is deemed to include, but is not limited to a number of employer initiated events, being:
(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.
For reasons which will follow I think it is doubtful that the administrative action initiated by the employer falls within any of the above events. The type of administrative action that may be initiated is not limited to the events recorded above. For reasons which will follow, I am satisfied that the process initiated by the employer, as learnt by this review, was administrative action.
THE EVIDENCE
Evidence was heard from the applicant, a former workmate, two doctors and three officers from the Department. A significant number of documents were also received into evidence and will be identified later in these reasons.
The applicant
The applicant and her counsel relied on an 18-page statement of her proposed evidence which was lodged prior to the commencement of the hearing and received as Exhibit A1.
On 10 February 2011 the applicant received an Applix message, through the i-Enterprise communication system used by the Department, requesting, as she understood it, that an employee be terminated from employment. She recorded in her statement that the request made of her was inappropriate and irregular because other hard copy documentation (separation documents) in support of that request had not been provided to her.
The applicant rang the employee’s manager who informed her that the employee had been working from his home. The Department wanted him to return to work at his workstation or to resign. Whilst the manager understood that the employee would resign, resignation papers had not been completed. In those circumstances the applicant recorded that she notified the manager, during the telephone discussion, that in the absence of that documentation she could not process a termination. She also recorded that she notified the manager that the Department could be exposed to an application for unfair dismissal and therefore an immediate solution to the issue would be to record the employee as being on leave without pay until he had decided to return to work at his workstation or to resign.
During that discussion the applicant recorded that her supervisor, Stella Karavassilis approached her at her desk and was attempting to intervene the discussion. She placed the telephone call to the manager on hold and was told by Ms Karavassilis that the senior personnel officer in charge of her section, Janelle Hickinbotham, had authorised the termination of the employee’s employment. She described the approach by Ms Karavassilis as being quite brusque (Exhibit A1 at [9]).
The applicant asked Ms Karavassilis to wait until she had completed the telephone call. The applicant completed the call with the manager and noticed from her computer screen that an entry had been made against the employee that his employment had being terminated.
The applicant approached the workstation occupied by Julie Jobson, the team leader of the separations team where Ms Karavassilis was also seated. She recorded that she wanted to discuss with both of them her concerns that procedures had not been followed correctly. But I was more concerned that the Department of Defence might be exposed to criticism within ranks, public reputational damage, or financial liability for wrongful dismissal if the Applix request had been premature or otherwise in error. I was also concerned for the interests and well-being of the Defence employee whose pay had been terminated in case there had been error (Exhibit A1 at [12]).
The applicant recorded that Ms Jobson told her that she had terminated the employee on the advice from and instruction of Ms Hickinbotham. The applicant recorded that she expressed her opinion that that procedure undertaken by Ms Jobson was incorrect because it was necessary to have appropriate documentation which had not been supplied. She recorded that Ms Jobson refused to discuss the issue with her.
In cross-examination the applicant agreed that she was frustrated that neither Ms Jobson nor Ms Karavassilis would listen to her concerns. She said that she was also frustrated that she had not been notified that Ms Hickinbotham, by email, had instructed Ms Jobson to make the entry terminating the employee. She agreed that she did raise her voice but did not confront Ms Jobson and Ms Karavassilis. She said confrontations in an open plan workplace would not be appropriate.
The applicant said when she was processing the request to terminate the employee, she was not aware that Ms Karavassilis knew of the email sent by Ms Hickinbotham. Accordingly she did not know that Ms Karavassilis approached her at her desk to speak about the content of it. Additionally, she did not know at that time that arrangements had been made, elsewhere, for the termination entry to be placed on the employee’s file.
At the conclusion of the discussion at Ms Jobson’s desk, the applicant returned to her own desk. About 30 minutes later, she was approached by Ms Karavassilis, who suggested that a round table discussion should take place with Ms Jobson and Ms Hickinbotham. In her statement the applicant said she agreed with that proposal. The discussion did not ever occur.
An examination of a number of documents and emails attached to a statement of Glenn Favaro (Exhibit R7) completed by a number of employees in the vicinity of Ms Jobson’s desk recorded that they heard the discussion some time between 12 noon and 12:35 PM. At 12:56 PM the applicant sent an email to Mr Richard Edward who then held the position of workforce manager in Defence Support Operations (T4, page 32). Her email only recorded I would like to talk to you, if all possible.
It was learnt that that email was intended to bring to the attention of Mr Edward the circumstances that had occurred earlier that day. In her statement at paragraphs 19 and 20, the applicant recorded that she sought and obtained a meeting with Mr Edward and then complained to him about the events in the workplace and the failure to have a round table meeting as proposed by Ms Karavassilis.
Having regard to the times of the emails, as recorded above, the email sent by the applicant to Mr Edward must have occurred within a few minutes of the conclusion of the private discussion with Ms Karavassilis. It was suggested to the applicant, and she agreed, that by her approaching Mr Edward and seeking to have a meeting with him (which occurred on the following day) there was in fact no opportunity to have a roundtable discussion.
Commencing at page 3 of her statement, the applicant typed what appears to be a transcript of the discussion between her and Mr Edward on 11 February 2011. She agreed in cross-examination that the discussion was not recorded and what appears to be a transcript is a record of her recollection of the discussion with Mr Edward (Exhibit A1 at [20]).
The applicant recorded that she notified Mr Edward, during the discussion, of the events on the previous day which were broadly consistent with her evidence earlier.
In the reconstruction of her discussion with Mr Edward at page 4, the applicant recorded that during the discussions with Ms Karavassilis, when the suggestion of a round table meeting was made, Ms Karavassilis had also said that the matter was handled badly. She also recorded that later that day, Ms Jobson reversed the termination entry in the employee’s records. She also recorded that later on Ms Jobson threw a bit of paper … and abruptly said “I did what you wanted”.
The applicant asked Mr Edward to investigate four specific things that [she] would like an answer to (Exhibit A1 page 4). She was insistent that Mr Edward record these issues in writing and on two occasions he reassured her that he had done so. He also showed her his notepad which recorded that he had written the four issues that she wanted him to investigate. Those issues (at pages 4-5) were:
i.Why Janelle took over the work I was doing without consulting me?
ii.How can a decision to terminate someone be legally processed, without paperwork and based on a random Applix? When we have a procedure that we can only suspend the employees pay until we get the finalised paperwork?
iii.Why hasn’t the meeting promised by Stella never eventuated?
iv.An apology from Janelle for the undignified and dismissive manner in which she treated me, particularly when I was doing my job in accordance with the department guidelines. Because she has done this before.
Mr Edward indicated to the applicant that her issues were likely to be considered by a quick assessment procedure (QA) and he would seek assistance by an independent person to help him investigate her claim and all the events that transpired.
Quick assessment procedure (QA)
The management of complaints within the Department are reported within the Defence Instruction (General) guidelines (DI(G)). Relevantly, one of the complaint management processes is a Quick Assessment (QA). It is recorded, relevantly, in DI(G) PERS 35 – 3 (T10, page 428), in the following terms:
6. Following receipt of a complaint, the commander or manager must undertake the following actions:
...
b. Quick Assessment (QA). Conduct a QA in accordance with DI(G) ADMIN 67 – 2 – Quick Assessment. The QA should make recommendations for the decisions required of the commander or manager below. The purpose of a QA is to assess the known facts about an occurrence to inform a decision about the most appropriate course of action. A QA is not an investigation and is not to be used as the basis for adverse findings. A QA must not interfere with any other enquiries or investigative processes (e.g. investigations by a DIA). In accordance with the reference, the QA must be completed in a timely manner within 24 hours. …
DI(G) ADMIN 67-2 (T31 page 719) provides that:
2. A QA is not an investigation. The purpose of a QA is to quickly assess the known facts, and to identify what is not known about an occurrence, so that a decision can be made about the most appropriate course of action to be taken in response to it. A QA is not a precursor to a service or civilian police investigation.
3. A QA is made up of two parts:
a.a short brief which identifies the facts, and if so directed, makes recommendations for a way ahead; and
b.a commander’s/supervisor’s decision, in the form of a written endorsement or a separate document.
4. The QA must not to be used as the basis for adverse findings, or to replace the need for a separate enquiry or investigation where such action would otherwise be necessary.
5. A QA must not be used as an investigation of a Defence Force Discipline Act 1982 (DFDA) offence or a Code of Conduct investigation under the Public Service Act 1999.
Richard Edward
Mr Edward lodged a statement (Exhibit R4) and gave evidence in this review.
In his statement he recorded that he met with the applicant on 11 February 2011 and learnt of the incident that occurred on the previous day. He recorded that by reason of the applicant making a complaint (Exhibit R4 at [6]) he recommended that a QA be implemented. He subsequently notified Mr Desmond Healey, the director of the Personnel Administration Centre, by email, of the incident and attached a number of witnesses statements (which he later said in evidence were copies of emails).
The email to Mr Healey from Mr Edward is appended to his statement (Exhibit R4, Annexure RE2). Mr Edward requested that Mr Healey convene a QA and recorded that the applicant wants the following:
·She wants Janelle to stop undermining her; and
·She wants an apology from Janelle.
Mr Edward recorded that he was not involved in the QA and although he was notified of its outcome he was not given a copy of a report of its findings. He was later asked by the applicant, after she received a redacted copy of the QA report, about what had happened to her original issue (Exhibit R4 at [9]. (That enquiry was made because it was apparent to the applicant, after reading the report, that her complaint was either not conveyed to the QA assessor or was overlooked. That issue will be addressed later in these reasons).
On 17 March 2011, a meeting was arranged where Mr Edward attended with the applicant. Mr Healey was also present and was the convenor of the meeting. Mr Edward said that the applicant had complained that the QA had not focused on her complaint and that she wanted an apology from Janelle. He said that Mr Healey then notified the applicant that the QA had found that Janelle had done nothing to apologise for and that Annamarie’s behaviour was found to be inappropriate. (Exhibit R4 at [9] and [10]).
In evidence, Mr Edward said that on 11 February 2011, the only complaint that he had received was from the applicant (Transcript, page 63). He said he did have an incident report that had been completed by Ms Hickinbotham, when he met with the applicant. It would appear from an answer he gave to a question from me that he did not know whether Ms Jobson ever completed an incident report (Transcript, page 72). His attention was drawn to an email sent by Ms Jobson on 10 February 2011 at 2:43 PM and found as an annexure to the statement of Mr Glen Favaro (Exhibit R7, Annexure GF1). He said he must have seen it together with other emails from staff in the vicinity of the discussion between Ms Jobson and the applicant. He said the emails were packaged up and sent to me (Transcript, page 78).
Mr Edward said he did not request that two QAs be convened, on the basis of the complaint from the applicant and the incident report from Ms Hickinbotham because both matters arose out of the same incident. He said despite the applicant notifying him of the four issues she wanted investigated as part of her complaint (paragraph 25 above), he only notified Mr Healey of two issues (paragraph 31 above). He said the other two issues were procedural in nature and would have been considered as part of the QA process (Transcript, page 65). (Mr Edward said that at a meeting later arranged with Mr Healey, where he attended, the applicant had asked him about the four issues that she had wanted him to record in his request for a QA. He said the request was not made in those terms rather the applicant had said that he didn’t do anything about her complaint – Transcript page 69 – 70).
In cross-examination Mr Edward said that he wanted the QA process to be fair to both parties. He wanted a thorough investigation of the entirety of the incident as recorded in the applicant’s complaint and Ms Hickinbotham’s incident report. He agreed that the applicant’s complaint could be characterised as an unacceptable behaviour complaint (Transcript, page 67).
Mr Edward said that he had wanted the QA to thoroughly investigate everything that he had heard and learnt from the applicant and everything to do with the incident report from Julie Jobson, to be fair to all parties (Transcript, page 67) (although it would appear from his evidence (Transcript, page 72) that he had no knowledge of an incident report completed by Ms Jobson). He said he had not ever seen the terms of reference for the QA as devised by Mr Healey. When he was shown a copy of it (Exhibit R7, Annexure GF1) he was asked to note that the claimant in the QA process was Ms Jobson and the respondent was the applicant. He said he did not intend the QA process to be limited to a determination of a complaint by Ms Jobson against the applicant only (Transcript, page 69).
Mr Edward said that a decision could have been made to have a private discussion with both parties rather than elect to proceed to a QA, however that process was selected because there were a number of witnesses and the incident had occurred between two people in an open and therefore public area (Transcript, page 74).
Glenn Favaro
Mr Healey appointed Mr Favaro, who was then employed by the Department as a Complex Case Manager in the Personnel Administration Centre, in Melbourne, to conduct the QA. His appointment was by email to which were attached a number of witness statements, the terms of reference and a document recording the format that the written outcome of the QA should follow.
In a statement lodged by him (Exhibit R7) Mr Favaro recorded that he had not previously conducted a QA.
He recorded that he interviewed the applicant, Ms Jobson, Ms Karavassilis, Ms Hickinbotham and Mr Paul Madden, one of the applicant’s supervisors. He recorded in his statement that he no longer held notes of those interviews however the substance of the QA report would have reflected those findings (Exhibit R7 at [5]).His report is dated 23 February 2011 (annexed to his statement and marked as GF2 – also at T 10, pages 323-326). It was forwarded to Mr Healey.
The letter of appointment from Mr Healey is annexed to the statement of Mr Favaro (Exhibit R7, Annexure GF1). It records that he was appointed as the Quick Assessment (QA) Officer to undertake a quick assessment of possible unacceptable behaviour within the Civilian and Overseas Personnel Administration Centre, Personnel Administration Centre Melbourne. Mr Healey instructed Mr Favaro to conduct the QA in accordance with DI(G) 35-3 Management and Reporting of Unacceptable Behaviour and DI(G) 67-2 Quick Assessment.
The letter records that Ms Jobson was the claimant and the applicant was the respondent. Specifically he was asked to review and comment on the following
·The specific issues of concern raised by the claimant.
·Whether any officer has breached the APS Code of Conduct.
·The appropriateness of actions taken.
Mr Favaro concluded that there was a lack of communication between the applicant and her supervisors when transferring the enquiry concerning the status of the employee from her to the separations team. He was satisfied that that intervention contributed to the incident. He was also satisfied that the incident did not involve a breach of the APS Code of Conduct. He found that the applicant did not describe Ms Jobson as a five letter word starting with “b” during a private discussion with Ms Karavassilis. However, he did find that the applicant was disrespectful and displayed a lack of professionalism in her approach to Ms Jobson (T10, page 326).
Mr Favaro made five recommendations being:
a)Ms Tucker be counselled in regard to her lack of professionalism in her approach to Ms Jobson.
b)Ms Tucker is further counselled on the inappropriateness of criticising fellow team members in an open office environment and the consequences of this negative criticism.
c)Ms Tucker to be advised that any similar occurrences of this nature may put her in breach of the APS Code of Conduct.
d)Ms Tucker is offered interpersonal communication and skills-development training.
e)PAC-Melbourne Supervisors and Team Leaders are counselled on the need to communicate more effectively with staff when making decisions that affect their work and workplace.
In evidence, Mr Favaro said he interviewed the applicant and notified her that he had been appointed as the QA Officer and would conduct a QA in response to a complaint made by Ms Jobson. He said he was aware the applicant had recorded in her statement (at paragraph 25) that she contended that the QA was to have the finding of my complaint to Richard Edward. He said that to the best of his recollection, the applicant did not say those words to him and he made it clear that he notified her that he was investigating the complaint made against her by Ms Jobson (Transcript, page 87).
In cross-examination Mr Favaro agreed that his emails to the applicant on 18 and 22 February 2011 (T documents, pages 37 and 38) notifying her of his appointment as the QA Officer do not record the purpose of the QA or a complaint having been made by another person. He said he had no information of whether any information had been given to the applicant about the purpose of the QA by any other person.
Mr Favaro said he was not aware the applicant had made a complaint to Mr Edward and did not recall that she had told him during his interview that she understood the QA process involved the complaint that she had made. He said had she told him of her complaint he was sure the alarm bells would have set off. And I would have explained, no, the reason for it is to investigate the complaint by Ms Julie Jobson. (Transcript, pages 88-89).
Mr Favaro said his conduct of the QA was based on the terms of reference provided to him by Mr Healey. He said the QA process was not intended to be an investigation nor a process for the making of adverse findings. He understood his role was to make an assessment of the known facts, based on his interviews and on the contents of statements (in the form of emails) made by other officers.
He did not regard the manner in which information was provided to him as being unfair to the applicant. He said having read the statements, he established that the incident did occur, and then interviewed who I thought were the critical people involved in the incident. He said that whilst he was undertaking that process, he was unaware that the applicant had made a complaint and he therefore had no knowledge she had an expectation of a response to her complaint (Transcript, pages 89-90).
In response to some questions from me, Mr Favaro said he learnt from the terms of reference that Ms Jobson had made a complaint however before he commenced his enquiries, he did not have any knowledge of the basis or reasons for her complaint. He agreed that his letter of appointment from Mr Healey did not attach or refer to any document completed by Ms Jobson. His recollection was of having the incident report completed by Ms Hickinbotham only and which was attached to the letter he received from Mr Healey. He learnt from the terms of reference that Ms Jobson was a claimant and there had been an incident. Later, after interviewing Ms Jobson, he understood she was alleging that the applicant had been rude and abusive to her in the workplace (Transcript, page 92). After he had read the witness statements he became aware of what the actual incident was and where it and, you know, when it occurred. He said if he made findings consistent with the complaint of Ms Jobson, he would be obliged to decide whether there had been unacceptable behaviour (Transcript, page 94).
Mr Favaro agreed that a round table discussion is a good process however a complaint was made, and that incident was put forward by Ms Hickinbotham and sent forward to management. He understood that the incident report had been provided to Mr Edward who forwarded it to the director (Mr Healey), and they decided that the QA was the appropriate course. On balance he thought a QA was appropriate because there had been an incident involving two or three persons, a number of witnesses had provided statements and it would be a process which would have established what had actually occurred (Transcript, page 95).
Desmond Healey
Mr Healey, the national director of the Personnel Administration Centre of the Department gave evidence.
Mr Healey confirmed that he received an email from Mr Edward notifying him of an incident between two staff members. He said Mr Edward recommended that a QA be conducted and he acted on that recommendation. He arranged for a number of witness statements (largely in the form of email letters) to be gathered and he forwarded them with his letter of appointment to Mr Favaro.
Mr Healey acknowledged that the letter from Mr Edward recorded two issues raised by the applicant (refer paragraph 31 above) however he did not appoint a QA in relation to those issues because no details were provided in relation to them. He said on his interpretation of the witness statements, which satisfied him that a discussion had taken place between the applicant and Ms Jobson, the QA should be confined to that discussion only. He also considered that a QA was an appropriate mechanism to actually find the facts and determine a course of action because he was also satisfied that there had been an altercation in the workplace with witnesses involved (Transcript, pages 100-101).
Mr Healey was unable to explain why he identified Ms Jobson as the claimant and the applicant as the respondent. On reflection he thought he may have made that decision because Ms Hickinbotham had approached Mr Edward before he had spoken with the applicant. He agreed that had the applicant spoken with Mr Edward before he had spoken with Ms Hickinbotham, he may have recorded the applicant as the claimant. He said when he made those decisions he did not think that he was aware that the applicant had made a complaint but on reflection he said he could not recall (Transcript, page 101).
In the applicant’s statement, she alleges that Mr Healey had not told her during a meeting with him on 10 March 2011 of the identity of other staff members to whom he had found that she had been rude. In response, Mr Healey referred to his letter (Exhibit R8, Annexure DH3) which he gave to her during the meeting, which identified Ms Jobson. He said he also then told her that there had been a complaint of unacceptable behaviour and that she was the subject of that complaint. He agreed that by his letter alone, the claimant could have been any one of a number of people.
Mr Healey agreed the applicant had not been given a copy of Mr Favaro’s report before the meeting with him on 10 March. He did not give her a copy of it during that meeting. Her knowledge of the content of the report was limited to what was contained in his letter. He said he could not recall the applicant expressing her surprise that the report apparently did not refer to her complaint but did agree that she did press that she made a complaint to Mr Edward (Transcript, pages 113-114).
The applicant subsequently requested a copy of the report completed by Mr Favaro. On 15 March 2011 Mr Healey again met with the applicant and gave her a copy of that report in redacted form (T4, pages 39-42). He said he was obliged to comply with the DI(G)’s which compel him to remove identifiers from the report. He agreed that the report, in unredacted form, is annexed to Mr Favaro’s statement (Exhibit R7).
The applicant and Mr Healey again met on 17 March 2011. The applicant notified him that she did not agree with the conclusions reached by Mr Favaro. He said the applicant then told him that she wanted her complaints investigated.
Mr Healey said he understood that a transaction the applicant was processing on 10 February 2011 could have caused her to incorrectly make an entry that the employment of another employee was terminated. He said he understood that the applicant objected to making that entry because supporting documentation had not been received. He said it would have been very wrong to have made an entry terminating the employment without the correct paperwork. He said: That would be a processing issue and that would cause a lot of concern for myself as the director of this facility. (Transcript, pages 106 – 107).
He said he made enquiries and was satisfied that an entry terminating the employment had not been made, rather, an entry was made of either the employee being on leave without pay or on unauthorised leave. (This issue was the subject of cross examination. It was learnt that there would not be any record of an entry made in the personnel system if, having been entered, it was removed within 60 minutes. Mr Healey said he could not dispute that information because he was not a transactor of the system – Transcript, page 110. Nothing turns on this evidence. Additionally Ms Jobson, according to the applicant did reverse the entry).
Mr Healey reaffirmed in cross-examination that he did not authorise a QA concerning the allegations made by the applicant, as recorded in the letter to him from Mr Edward, because a statement from her, giving details of those allegations, was not provided. He said the letter from Mr Edward, alone, was not considered to be a sufficient basis for a QA in respect of the applicant’s allegations.
Mr Healey confirmed that he decided to appoint a QA by regard to the witness statements and the incident report that was provided to him by Mr Edward. He said he gave no consideration to the witness statements (email letters) having been made at the request of Ms Jobson, he did not consider whether there had been any selective approach to obtaining the statements and he did not consider whether all potential witnesses had been approached. He said he understood that the persons who provided these statements had been sitting in the area immediate to the discussions between the applicant and Ms Jobson. With the benefit of hindsight he agreed that it would have been appropriate for him to have made enquiries of the entire pool of potential witnesses (Transcript, pages 110-111).
Mr Healey agreed that the two issues within Mr Edward’s letter (being the only two issues on behalf of the applicant to which Mr Healey was notified) could have been characterised as an unacceptable behaviour complaint. However, on the information that was provided to him there was no evidence in support of those issues. He did not consider it necessary to obtain any further information. He agreed that the DI(G)s record that the commander or manager (being his status for the purpose of the DI(G)s) must act on all complaints brought to their attention, that he did not act on the applicant’s complaint and again with the benefit of hindsight if the same circumstances confronted him he would act differently (Transcript, page 111 – 112).
Mr Healey said he had no record of the date that he spoke with the applicant prior to the QA being undertaken however he did recall speaking with and informing her of it. He said the process undertaken by him when notifying persons of a QA is to inform them of the nature of the allegations made, the appointment of a QA officer, the enquiries that person will make and the preparation of a report. He said he could not recall whether he advised the applicant that the claimant was Ms Jobson but said it was not his usual practice when discussing a QA process to identify the claimant and the respondent (Transcript, pages 112-113).
Mr Healey also agreed that his letter to the applicant of 25 February 2011 (Exhibit R8, Annexure DH3) did not identify Ms Jobson as the claimant nor did the redacted report of Mr Favaro’s which she was given, after she requested it (although he said that it could have been inferred that Ms Jobson was the complainant). Mr Healey acknowledged that the DI(G)s record that commanders and managers may seek advice from the legal division of the Department concerning deletions for reasons of privacy. The witness said he did not seek that advice (Transcript, pages 113 – 115).
Mr Healey’s attention was drawn to a process, recorded in the DI(G)s, to which a person aggrieved by the outcome of a QA might seek review. He said there was no impediment to the applicant making a review application if she was aggrieved by the outcome of the QA potentially not meeting her needs. He maintained that the applicant could have taken advantage of the review process despite only having the redacted report, not knowing the identity of the claimant and not being aware of the identity of the witnesses (Transcript, page 116).
MEDICAL EVIDENCE
Norman Rose
Dr Rose is a psychiatrist who examined the applicant at the request of the respondent’s solicitors on 22 August 2012 (Exhibit R5). He diagnosed the applicant as suffering from a severe adjustment disorder with mixed anxiety and depressed mood.
Having obtained a history from the applicant concerning the circumstances surrounding an incident at work in early 2011 he concluded (page 7) that if the applicant’s historywas accepted, she would have seen herself as protecting another worker who was under threat of dismissal and because of her sense of intense perceived injustice she came into conflict with other persons in the workplace. He reported:
In this setting, she felt that her employers were treating her like vultures. She began to feel the victim of perceived injustice and in this setting she developed severe anxiety and depressive symptoms for which she is still under treatment. She is currently under the treatment of a psychologist and a consultant psychiatrist but she is reluctant to take medication for her psychiatric symptoms.
Dr Rose had been provided with reports of Mr Lawrence Hayden, a psychologist to whom the applicant attended on 15 occasions between 29 March 2011 and 14 October 2011. At the time of the consultation with Dr Rose, the applicant was being treated by Dr Rodda, a psychiatrist only.
Dr Rose concluded (at page 9):
I doubt that Ms Tucker would have developed the current condition without her being in a situation where she saw herself as a whistleblower in a situation of perceived injustice. It was the perception of injustice at work and the resulting actions of management and conflict with her about these issues that appeared to have caused her condition.
In cross-examination, Dr Rose was satisfied that the applicant demonstrated symptoms of anxiety and depression in March 2011 when she was under the care of Mr Hayden. He was also satisfied that her symptoms were the result of events in the workplace and, if the circumstances that she described to him were found as a fact, those symptoms were caused by her employment.
The illness of an adjustment disorder with anxiety and depression were conditions outside the boundaries of normal mental functioning and behaviour. Although it was his reported opinion that the adjustment disorder developed at or about 19 August 2011 when the applicant presented to a local hospital with chest pain (page 8), he acknowledged that some of her symptoms had occurred earlier.
Dr Rose reported (page 9) that the factors at work have contributed to her claimed condition to a major extent.
Alexandra Rodda
Dr Rodda is a practising psychiatrist who first consulted with the applicant on 15 October 2011. She provided four reports dated 29 November 2011, 8 February 2013, 1 July 2013 and 22 November 2013 which were received as a bundle as Exhibit A2. She diagnosed the applicant as suffering from chronic adjustment disorder with anxiety and depression.
It was suggested to Dr Rodda in cross-examination that she was an advocate for some of her patients. Her attention was drawn to a report she wrote on 23 January 2012 (T29, page 703) to the Department where she recorded that
… The rejection of Ms Tucker’s Comcare claim, dated the 4th January 2012, has been very upsetting to her, as it appeared to her to be an extension and enlargement of the injustice that she feels she has suffered. In particular, the way in which she received the news about the rejection set her back significantly.
Dr Rodda said that if one of her patients was unable to act alone it would be just that someone should act and [if]nobody else is around to do that I would do that, but I do try always to be truthful and impartial (Transcript, page 49). She agreed that a sense of having suffered injustice could be a true perception, or could be a paranoid feeling. However, the applicant, in her clinical judgement, was upset and on the basis also of her clinical experience she maintained that the comments reported immediately above did contain a clinical opinion (Transcript, page 51).
On the basis of the history obtained by the applicant, Dr Rodda was satisfied that when the applicant learnt of the outcome of the QA process she really broke down, because until then she had hope. She said the point of no return was doing the QA and immediately following the QA. She said the applicant expected, by the interview with Mr Favaro to have her questions addressed, and she had been castigated for having been rude and having used a swear word (Transcript, pages 53 – 54).
Dr Rodda was satisfied that the employment had contributed to the applicant’s illness. She was also satisfied that the contribution was by a significant degree because the applicant was not adequately treated during the prodrome (when symptoms were emerging).
In her report of 1 July 2013 (pages 2 and 3), Dr Rodda disagreed with the opinion of Dr Rose that the date of injury should be found to be 19 August 2011. She was satisfied that the beginning of the illness occurred on 10 February 2011, being the day of the incident in the workplace. She also reported that the onset could have been the occasion that she experienced chest pain, as Dr Rose reported. Alternatively, it could have been the occasion that she first sought psychiatric treatment. She concluded that it was difficult to pin down its occurrence to any particular moment in time in this case.
CONCLUSION AND REASONS FOR DECISION
Section 5A(1) of the SRC Act provides that the injury, disease or ailment (as the respondent contended – refer s. 5B(1) of the SRC Act) will not attract liability on the part of the respondent if it was suffered:
·as a result of reasonable administrative action
·taken in a reasonable manner
·in respect of the employee’s employment.
Reasonable
In Comcare v Martinez(No 2) (2013) 212 FCR 272, Robertson J agreed with the decision of Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at pages 47-48 (Keen) which relevantly stated:
Whether the administrative action was taken in a reasonable manner by the employer will depend on the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
In Keen, Bleby J, at page 63, decided:
…. In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
Administrative action
In the Full Court decision of Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 (Reeve), Rares and Tracey JJ at [74] decided that the administrative action does not contemplate the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. Administrative action contemplates taking steps under his or her contract of employment.
Gray J at [31] decided the word administrative relates to the business or activity conducted by the employer, as opposed to operational activity which is a reference to the employee’s duties or the manner of performing them.
The QA in this review clearly went beyond the performance by the applicant of the duties of her employment.
I agree with the submissions of counsel for the respondent (Transcript, page 69), namely, the administrative action in this review, the QA, comprised many elements being the complaints, terms of reference, letters, interviews, recommendations, findings and meetings.
During the hearing I raised with a number of witnesses whether the round table discussion to which the applicant referred, would have been more appropriate. The respondent’s witnesses thought the QA process was preferable because the discussion between the applicant and others in the open plan workplace was overheard by a number of other employees. The QA process was also preferred because it was not of an investigative nature, recommendations could be made and the nature and the limits to its enquiry were defined by the DI(G)s.
I do not exclude the possibility that a round table discussion involving the applicant, Ms Hickinbotham, Ms Jobson and Ms Karavassilis could have resolved the issues between them and established a satisfactory working relationship. On balance, I think that it was probably appropriate to have appointed a person independent of the dispute between those persons, Mr Favaro, and for him to have conducted the QA as Mr Healey decided upon the advice to him from Mr Edward. I also satisfied, as was Robertson J in Martinez that s. 5A does not contemplate consideration being given to other administrative actions.
Taken in a reasonable manner
The enquiry dictated by s. 5A(1) extends to whether the reasonable administrative action was taken in a reasonable manner. I do not understand those words to be a reference to a decision to select a process of administrative action, rather the words taken and manner, especially, to be references to a decision to actually embark upon a process and the conduct of it. Therefore, an enquiry is necessary into all the elements constituting the administrative action (the QA), and the precipitating events in order to determine whether the QA was conducted in a reasonable manner (Martinez at [101]).
In respect of the employee’s employment
In Reeve, Rares and Tracey JJ at [60] drew attention to the phrase in respect of the employee’s employment, with attention especially to the words in respect of and decided that:
The (administrative) action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s.5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”.
Similar findings were also made by Gray J in Reeve at [33], Cowdroy J in National Australia Bank Ltd v KRDV (2012) 204 FCR 436 at [49] and by Doyle CJ in Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 at 247.
The findings of Rares and Tracey JJ again point to the administrative action being concerned with the terms and conditions of the employment, not the duties.
Findings of fact
Having reviewed the transcript of evidence and read the documents lodged in this review and exhibited, I am satisfied and make the following findings of fact concerning the events in the workplace precipitating the administrative action:
i.On 10 February 2011 the applicant was responding to a Personnel Incident Details Report concerning the salary of another employee (Exhibit R7, Annexure GF1) sent by an officer of the Department in Sydney asking her to please ensure his pay is stopped. The applicant telephoned that officer to seek clarification of the appropriate entry to be recorded and was apparently advised that termination (of employment) be entered. The applicant objected to making that entry because the Report recorded that the employee was on unauthorised leave and it was anticipated that he would submit a resignation within a few days. The applicant expressed her view that it would be improper to record that his employment was terminated without having received hardcopy documents signed by the employee.
ii.At or about the time the applicant was engaged in that telephone call, Ms Hickinbotham, who was also aware of the same Report referred it to Ms Jobson. Ms Hickinbotham then noted that the applicant was processing it. She approached the applicant to notify her that Ms Jobson had been delegated to respond to the Report but did not speak with her because she was engaged in a telephone conversation (the applicant was then speaking with the officer in Sydney who wrote the Report).
iii.Ms Hickinbotham then asked Ms Karavassilis, the applicant’s team leader to notify her, when she finished the telephone call that action on the report had been referred to Ms Jobson (Exhibit R7, Annexure GF1).
iv.Ms Karavassilis either intervened into the telephone call or the applicant agreed to place the call on hold while she spoke with Ms Karavassilis. The applicant completed the telephone call and noted from her screen that an entry had been made against the employee that his employment had been terminated.
v.The applicant left her desk and approached Ms Karavassilis who was seated at or near the desk of Ms Jobson. The applicant complained that the entry had been incorrectly entered in the absence of appropriate hardcopy documents. She said Ms Jobson refused to discuss the issue with her.
vi.The applicant agreed that she was frustrated by Ms Jobson and Ms Karavassilis either not listening to or refusing to acknowledge her concerns. She agreed she was also frustrated at not having been notified by Ms Hickinbotham that the enquiry had been transferred from her.
vii.The applicant agreed she did raise her voice. She denied that she confronted Ms Jobson and Ms Karavassillis. An email from Ms Jobson, dated 10 February 2011 (Exhibit R7, Annexure GF1) does not record she was confronted but alleged the applicant was very rude and advised me to “Get off my high horse”. She recorded that the applicant would not listen to her and when she tried to explain why she had made the entry in the employee’s records the applicant just stormed off. Emails written by other employees (sought and obtained at the request of Ms Jobson) in the vicinity of Ms Jobson’s desk confirm the applicant did speak in a loud voice and she did tell Ms Jobson to Get off her high horse. Some of the emails also record that the applicant stormed off. One email (from Ms Cross) records the applicant as being very aggressive in her tone and stood over Julie. The respondent did not call Ms Jobson, Ms Hickinbotham or Ms Karavassilis or any of the authors of the emails.
viii.I am satisfied the applicant did speak in a loud voice. I am also satisfied that she did tell Ms Jobson to Get off her high horse. It was inappropriate for the applicant to have spoken to Ms Jobson in a loud voice, apparently also able to be heard by others. It was also inappropriate for the applicant to ask Ms Jobson to Get off her high horse, it being an expression intended to convey, by the applicant, that Ms Jobson was acting in a superior or condescending manner.
ix.To confront a person suggests an element of hostility or defiance. Because I am satisfied the applicant did storm off, I do not find that she confronted Ms Jobson, rather I find that the applicant became satisfied that it was pointless having any further conversation and she decided to return to her desk. In the transcript at page 23 she denied that she told Mr Favaro that she had confronted Ms Jobson. (Mr Favaro did not record in his report, which included a summary of the interview with the applicant that she confronted Ms Jobson. In cross examination the applicant denied (Transcript, page 18) that she confronted Ms Jobson. When she was asked the question (Transcript, page 23) You didn’t confront her? the applicant said I did. Later the applicant said that she did raise her voice but not when I first confronted her.)
x.I am unable to explain the differences in the answers given by the applicant to similar questions. I do not now know whether the applicant understood the meaning of the word confront or whether her use of it bears the same interpretation as I have applied above or by counsel in cross-examination. As best I can, having reconstructed the conversation by regard to the applicant’s evidence and the documented evidence, I remain satisfied that the applicant did not confront Ms Jobson.
xi.Shortly after the applicant returned to her desk she was approached by Ms Karavassilis who enquired whether she would participate in a roundtable discussion with her, Ms Jobson and Ms Hickinbotham. The applicant agreed to do so. That discussion did not ever take place. (Later that day, the applicant sought a meeting with Mr Edward. The meeting occurred on the following day and it was agreed that Mr Edward would seek a QA).
xii.During the afternoon of 10 February 2011 Ms Jobson threw a note on the applicant’s desk with words to the effect I’ve done what you wanted me to do (Transcript, page 36).The entry terminating the employee was reversed and he was recorded as being on leave without pay. That appears also to be confirmed by the email from Ms Jobson who recorded that she had spoken with the officer in Sydney and approval had been given to her to record that the employee have an entry in his records of LWOP (leave without pay).
Background
Before embarking upon all of the component parts of the administrative action (and whether it was reasonable) it is necessary to record something about the applicant.
I am satisfied that she is a diligent, competent and committed employee of the Department. She is well versed in her employer’s practices and procedures. She drew attention to the error of recording that the employee be terminated when in the absence of signed hardcopy documentation such an entry would be inappropriate. Mr Healey agreed that making an entry terminating the employment would have been very wrong and would have caused him a lot of concern.
Dr Rose also regarded the applicant as having an obsessional personality (Exhibit R5, page 8). He reported that the applicant saw herself as a whistleblower in a situation of perceived injustice. She told him that she had felt that her employers were treating her like vultures.
In an email to Mr Edward on 16 March 2011 (Exhibit R4, Annexure RE3) where she complained to him about failing to notify Mr Healey of her four issues and having learnt that she was the respondent to a complaint of another person in the QA process, she recorded:
I refuse to be victimised on matters which have involved certain members’ unprofessional personal opinions (be it supervisor or otherwise) attempting to compromise, in this instance, the APS values of integrity, professionalism and courage I have displayed in the conduct of my duties. Resolution of this matter should have been of primary and paramount importance, rather than the consideration of the less significant claims against me of purported ‘rudeness’.
The sentiments expressed in the email reassure me (especially when the email was written at a point in time when litigation with the respondent was not contemplated) that her professional values and commitment to the Department as an employee (and how others perceived that commitment) were very important to her.
The elements of the administrative action
The administrative action undertaken by the employer, involving also some of its employees, was composed of a number of elements, which I am satisfied are as follows:
a)the meeting between the applicant and Mr Edward on 11 February 2011;
b)the letter from Mr Edward to Mr Healey;
c)the letter from Mr Healey to Mr Favaro;
d)the conduct of the QA;
e)the content of the QA report;
f)the adoption of the report by Mr Healey;
g)the meetings between the applicant and Mr Healey.
The applicant and Mr Edward met on 11 February 2011. There were four issues (paragraph 26 above) specifically raised by her and which she insisted that he record in her presence. She was so insistent that she asked him to show her from his writing pad that he had recorded those issues, which he did. The applicant intended that Mr Edward be aware of her issues which she intended to be the basis of a complaint.
Mr Edward notified Mr Healey of his meeting with the applicant. He requested that a QA be undertaken. He did not notify Mr Healey of the applicant’s four issues. He did not tell the applicant that those four issues were never reported to Mr Healey. In his email of 11 February to Mr Healey, Mr Edward recorded:
… Anna Marie wants the following:
·she wants Janelle to stop undermining her; and
·she wants an apology from Janelle.
Mr Edward said he only notified Mr Healey of the above issues, despite the applicant wanting all of her issues investigated, because her remaining issues were procedural and would have been considered as part of the QA process.
Mr Edward did not have the authority to eliminate the issues which the applicant wanted investigated. He could not know whether her other issues would have been considered in the QA process. As a consequence of not communicating all of the issues sought by the applicant to be investigated, the QA, appointed by Mr Healey and the delegation by him to Mr Favaro to conduct it did not – and could not – comprehend the ambit of the issues concerning the applicant.
It follows, perhaps also because the applicant was cited as the respondent to the QA (despite Mr Edward understanding that the applicant was the claimant) – that she was disadvantaged because she was responding to the complaint of another person. As a claimant she would have been entitled to agitate to have her issues acknowledged, assessed and determined. It is also unfortunate that Mr Edward did not specifically record in his letter to Mr Healey that the applicant was making a complaint.
In concluding this part it is timely to observe that the DI(G)s described the QA as being an assessment of the known facts about an occurrence. The facts of the occurrence were in part related to the applicant’s four issues. Because all of those issues were not relayed to Mr Healey, it was impossible for the QA to determine and assess the known facts. The QA proceeded on the basis that the applicant had assumed that all of her issues were known to Mr Healey and Mr Favaro. It was not until some weeks after the QA report was completed that she learnt that all of her issues had not been reported by Mr Edward.
The letter from Mr Edward to Mr Healey on 11 February 2011 records that prior to him speaking with the applicant he had had a conversation with Ms Karavassilis. He recorded the information that he learnt from that conversation in his letter. There is no evidence that he notified the applicant of the conversation or of its content. His letter also records that he had documented information from staff members and some incident reports. His possession of those documents and the contents of them were not given or communicated to the applicant.
Mr Edward’s failure to communicate the applicant’s four issues is discussed above however, an examination of them and the information that he learnt especially from Ms Karavassilis clearly, in my view, points to the applicant’s concerns not being confined to a sense of being undermined or seeking an apology from Ms Hickinbotham (Janelle) only. The issues for the applicant extended to a complaint about work practices concerning the data entered into payroll and personnel records, her right to advocate and be heard on those issues and the failure by others to acknowledge her and those concerns.
Mr Healey delegated Mr Favarao to conduct the QA by a letter dated 13 February 2011 (Exhibit R8, Annexure DH2). The terms of the appointment directed Mr Favaloro to undertake a QA of possible unacceptable behaviour. The applicant was recorded by the letter as the respondent. Mr Healey also asked Mr Favaro to comment on the specific issues of concern raised by the claimant. He decided that Ms Jobson was the complainant.
In my view, the applicant was immediately (and again) disadvantaged. She was never told of a complaint by Ms Jobson or her being recited as the claimant. Her status as a claimant points to, or may be reasonably inferred, that the investigation into possible unacceptable behaviour as having been committed by the applicant because she was recorded as the respondent. Put another way, Mr Favaro was being asked to investigate a complaint by Ms Jobson, interpreted by Mr Healey as possible unacceptable behaviour by the applicant and with an additional requirement for Mr Favaro to review and comment specifically on issues of concern raised by her, the claimant (Terms of reference, paragraphs 2 and 6) The focus therefore from the outset was upon the concerns of Ms Jobson and there was substance, at least perceived by Mr Healey and communicated to Mr Favaro of the possibility of unacceptable behaviour having occurred.
In evidence, Mr Healey said he could not explain why he identified Ms Jobson as the complainant. When he reflected on that decision he thought it might have been made because Ms Hickinbotham had approached Mr Edward before he had spoken with the applicant. It is difficult to comprehend that explanation. It does not explain why he did not cite Ms Hickinbotham as the claimant, she being a senior personnel officer at a level above both the applicant and Ms Jobson and to whom Ms Jobson sent her email.
He then suggested that had the applicant spoken with Mr Edward before he had spoken with Ms Hickinbotham, he may have decided to record the applicant as the claimant. However that explanation, with respect, makes no sense because he said in evidence he did not appoint a QA in relation to the two issues that were notified to him by Mr Edward because details in support of them were not provided. That is, he had no regard to those two issues in the absence of support for them (and there is no evidence that he ever sought it) and specifically he had no knowledge that the applicant had in fact put four issues of concern to Mr Edward, which she did want investigated. He also said that the two issues of which he was aware were not a sufficient basis to constitute a QA.
He said he decided to appoint a QA on the basis of the witness statements that had been provided to him; he did not consider that those statements had been provided at the request of Ms Jobson; he did not consider whether any other persons should be asked to make statements and he did not consider any necessity to seek information from any other persons.
Mr Healey did not have a statement from the applicant. He dismissed the two issues that were reported to him as having any basis. His appointment of the QA was obviously unbalanced. He did not seek a statement from the applicant (neither did Mr Edward) and he did not consider any necessity to obtain any information from the applicant, she also being within the pool of potential witness (paragraph [64] earlier).
Mr Healey said that he did speak with the applicant prior to the QA being appointed and notified her of the allegations made. He said he could not recall whether he notified the applicant that she would be the respondent in the process and Ms Jobson would be identified as the claimant.
Mr Favaro conducted the QA and completed a report (Exhibit R7, Annexure GF2 and also found at T10, page 323). The report indicates that in addition to speaking with the applicant he also spoke with Ms Jobson, Ms Hickinbotham, Ms Karavassilis and Mr Madden. He also read five statements from other officers.
His report records that the QA was initiated because of concerns raised by Ms Jobson in relation to an incident which occurred between her and the applicant. He also recorded that the QA was generated after a complaint was received from Ms Julie Jobson that she had been verbally abused by Ms Anna Marie Tucker in the workplace in front of multiple witnesses. That those concerns were raised by Ms Jobson clearly points to her having either laid the foundation for the QA or initiating it. So far as is known, the only communication by her of the events in the workplace was her email of 10 February 2011 prepared at the request of Ms Hickinbotham. Mr Healey did not attach any complaint in written form of Ms Jobson in his letter to Mr Favaro. Mr Favaro does not refer to any written complaint of Ms Jobson in his report nor did he annex it with other documents. His recording that the QA was generated (QA report, paragraph 2) by the complaint of Ms Jobson clearly points to the person appointing the QA being aware of that complaint. Mr Healey appointed the QA. He must have known of the complaint. His knowledge of it would explain why he appointed Ms Jobson as the claimant. There was no evidence from Mr Healey nor from Mr Favaro nor can it be gleaned from his report that the applicant was ever aware that Ms Jobson had made a complaint. Mr Favaro found the applicant had verbally abused Ms Jobson (QA report, paragraph 2).
For reasons given earlier, Mr Favaro was not aware of the two issues that Mr Edward had communicated to Mr Healey nor the four issues (or the ambit of them) the applicant intended Mr Edward would communicate to Mr Healey . He was not aware that Mr Healey had decided that a QA should not be appointed in relation to the two issues of which he knew. He was not aware that that decision had been made because Mr Healey had decided there was an absence of supporting information. He conducted the QA on the basis of a complaint from Ms Jobson.
I would prefer to conclude that Mr Favaro did not conduct the QA – an assessment of known facts – on the basis of or at least by a perception that the applicant was expected to respond to a complaint by Ms Jobson. However in the absence of him being aware of the applicant’s complaint, he was denied the opportunity to conduct the assessment by considering both complaints (or at least, the issues of both parties) and, necessarily, taking into account all of the applicants issues. The advantage of that process is obvious because in addition to him being aware of the issues of both persons and them being able to speak in support of them, he could make his own enquiries in relation to those issues and question both the applicant and Mr Jobson. His summary of the interview with the applicant found at paragraph 8 of his report contains no reference to one of the applicant’s issues of seeking an apology from Ms Hickinbotham and her sense of being treated in an undignified and dismissive manner. That may be explained because Mr Favaro was never made aware of the four issues which the applicant understood Mr Edward would communicate to Mr Healey and which would then form the basis of a QA.
Mr Healey met with the applicant after he considered the report of Mr Favaro. He discussed with her the contents of his letter of 25 February 2011 (Exhibit R8, Annexure DH3). He recorded in his letter that it had been alleged:
i)that the applicant had approached Ms Jobson and spoke to her in a loud, rude and abusive manner in front of her colleagues; and
ii)that the applicant, in a private discussion with Ms Karavassilis used inappropriate language to describe Ms Jobson.
Mr Favaro did not conclude that the applicant spoke to Ms Jobson in a loud or abusive manner. He reached conclusions on the basis of the evidence gather (sic) through interviews and formal statements (refer to paragraph 11 of his report). He did not find that the applicant used inappropriate language referable to Ms Jobson.
Mr Favaro was not satisfied that the incident on 10 February 2011 constituted a breach of the Code of Conduct, but concluded that the applicant’s approach to Ms Jobson was rude and abrupt, that she was disrespectful and her demeanour displayed a lack of professionalism. He recommended that the applicant be counselled in regard to her lack of professionalism, the inappropriateness of criticising team members in an open office environment and the consequences of negative criticism. She was also put on notice that similar occurrences may amount to a breach of the Code of Conduct.
Mr Healey adopted the recommendations.
Mr Healey did not provide the applicant with a copy of the report of Mr Favaro before or during his meeting with her on 10 March 2011. (The applicant later requested the report but was given it, later, in a heavily redacted form - T4, page 39).
Although Mr Healey told the applicant during that meeting that a complaint had been made that her behaviour had been unacceptable, he did not tell her who had lodged the complaint. He agreed by his letter alone, that any one of a number of persons could have been the claimant.
Mr Healey said he gave the applicant, on a subsequent date, the redacted report of Mr Favaro because he was obliged to do so under the DI(G)s. He acknowledged that he could have sought advice from the legal division of the Department concerning deletions but did not seek it. He said the applicant could lodge an application to review the outcome of the QA despite only having the report in redacted form, not being aware of the identity of the claimant, and the authors of statements, the witnesses or knowledge of the information recorded by Mr Favaro following his discussion with those persons.
On the basis of the events and circumstances recorded above I am not satisfied that the decision to appoint the QA and the conduct of it was administrative action taken in a reasonable manner.
The QA process as described in and contemplated by the DI(G)s has much to commend it. It contemplates commencement without delay, timely identification and assessment of relevant facts and recommendations being given to a superior officer. But it must be conducted with fairness and with regard especially to the person against whom a complaint has been made. Objectively it was unfair and unbalanced.
I do not suggest that the process should involve giving evidence nor enquiry into whether a complaint has merit. That would be inconsistent with the process of assessment.
However, the QA process being the subject of this review was infected virtually from the beginning by the failure to notify Mr Healey of the applicant’s issues and to notify him that the applicant was making a complaint. The disregard by Mr Healey of the two issues of the applicant, as notified to him and the consequent failure to record them in the QA referral and reciting the applicant as a complainant also infected the process.
The applicant understood she had made a complaint concerning matters which were very important to her.
As found earlier, she is a very diligent and committed member of staff of the Department. She was alert to the harm that could be caused to another employee by incorrect entry into his personnel records. She was concerned that the employer could be exposed to criticism, damage to its reputation and financial liability should the employee litigate for unfair dismissal.
She did perceive injustice because those concerns were not acknowledged or valued. The entry incorrectly made by Ms Jobson was later reversed by her to the entry which the applicant had been agitating, without any recognition or acknowledgement that the applicant had been correct in the procedure that should have been followed.
The applicant had a sense of being undermined by the absence of consultation when the work was transferred to Ms Jobson, especially I think when the incident report completed by Ms Hickinbotham acknowledged that the applicant was working on the processing request from the Sydney office .
The finding by Mr Favaro of a lack of communication with the applicant by her supervisors having exacerbated the situation and contributed to the incident is well made. But there is an absence throughout his report, the final outcome as reported by Mr Healey and the earlier correspondence from Mr Edward of failing to comprehend the importance to the applicant of correct procedures, the esteem she held for her employer, her regard to the rights of the employee, her concern the employer could be exposed to litigation, her right to be heard (without being dismissed-as she perceived) and her sense of injustice.
Had he comprehended those issues, which would have emerged from knowledge of her four issues – of which he was not notified – and not being directed to comment on the specific issues of concern raised by Ms Jobson, his assessment would most likely be more penetrating and his recommendations may not have been as broad. That he was directed to comment on whether any officer had breached the APS Code of Conduct, contrary to the objectives of the DI(G)s, imported an unwarranted focus on his assessment.
That she was recited as a respondent to the process without ever having been told, being denied a copy of Mr Favaro’s report in unredacted form and a suggestion to her that she could seek review, as if it would ameliorate her sense of grievance – these circumstances and events also being component parts of the administrative action – were not fair to her. The applicant first saw the QA report in unredacted form and learnt that Ms Jobson was the claimant, 12 months later, when she received the T-documents after this application was lodged.
The applicant was never advised of the identity of the complainant and was never put on notice that a number of persons had made statements which were held by Mr Healey (and not released to her) making allegation and recording observations.
She was entitled to that information and to know the identity of the complainant. She could not respond to the allegations or explain her conduct. To be denied that information, even by inadvertence, was unfair.
I am satisfied the QA was procedurally unfair. In those circumstances the QA was not a reasonable administrative process.
The implementation of and what was omitted from the administrative action, together with the impact on the applicant by the process and the factual background to the decision and its implementation (refer Keen earlier) satisfies me that the administrative action initiated by the employer was not taken in a reasonable manner.
The respondent conceded that the diagnosed injury is a disease which embraces an ailment at s. 5B(1) of the SRC Act. It was also conceded, in my view properly, that there was a contribution to a significant degree to the occurrence of the ailment.
I am also satisfied the injury, being a disease suffered by the applicant shall be deemed to have been sustained on 23 March 2011 (s. 7(4) of the SRC Act).
On that day, being the day after the applicant received an email from Mr Healey advising her that the QA procedures were followed and had concluded, she consulted a doctor at the Seymour Clinic. The relevant clinical entry records:
…wants counselling re workplsace[sic] bullying does the other gp advised to check first with other gp k 10 39/50 not suicidal stressed depressed doesn,t [sic] want medication to let me know if she needs me to do mental care plan.
That is the first entry recording the applicant giving a history of illness referrable to her workplace and seeking treatment. On the following day a mental health plan was completed with a referral to Mr Hayden, the psychologist.
DECISION
The decision under is set aside and in substitution it is decided that the applicant has suffered an adjustment disorder with mixed anxiety and depressed mood deemed to have been sustained on 23 March 2011. The administrative action initiated by the employer was not taken in a reasonable manner. The disease was contributed to a significant degree by the employment. The entitlement of the applicant to compensation is not denied by the exclusionary provisions of s.5A(1) of the SRC Act.
The application is remitted to the respondent to determine the applicant’s entitlements to compensation pursuant to the SRC Act.
The respondent shall pay the applicant’s legal costs and disbursements to be determined pursuant to paragraph 6.10 Guide to the Worker’s Compensation Jurisdiction (version 2.0).
I certify that the preceding 148 (one hundred and forty eight) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member .......[sgd]................................................................
Associate
Dated 3 April 2014
Date(s) of hearing 17 and 18 February 2014 Advocate for the Applicant Chris Hardman Counsel for the Respondent Cathy Dowsett Solicitors for the Respondent Kellie Latta, Sparke Helmore
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