Webster and Comcare

[2011] AATA 330

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 330                   

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/2483

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALYCIA WEBSTER

Applicant

And  COMCARE

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Dr G J Maynard, Brigadier (Rtd), Member

Date 18 May 2011

Place Brisbane

Decision  The decision under review is affirmed.

..............................................

Senior Member

CATCHWORDS

COMPENSATION — depressive condition — stress associated from investigation of suspected breaches of Australian Public Service Code of Conduct — stress associated with personal life — reasonable administrative action — decision affirmed

Safety, Rehabilitation and Compensation Act 1988, ss 5A and 14

REASONS FOR DECISION

18 May 2011 Senior Member Bernard J McCabe
Dr G J Maynard, Brigadier (Rtd), Member

1. Ms Alycia Webster is a public servant who says events in the workplace caused her to develop a depressive condition. She referred in particular to the stress associated with an investigation of suspected breaches of the Australian Public Service (“APS”) Code of Conduct. She says Comcare is liable in respect of her condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

2.      

Comcare rejected Ms Webster’s claim in a reviewable decision dated

21 April 2010. Comcare says the depressive condition was brought on by other circumstances in Ms Webster’s life that were unrelated to her employment. In the alternative, Comcare says the Tribunal should find that the Code of Conduct investigation was “reasonable administrative action” and therefore excluded from the definition of injury for the purposes of the Act.

3.      We think the decision under review should be affirmed. We explain our reasons below.

THE FACTUAL BACKGROUND

4.        Ms Webster has worked at the Child Support Agency for a number of years. By all accounts, she was regarded as a capable administrator and enjoyed rapid progress through the ranks. She first encountered some difficulty in 2006 when she was working as a team leader and Mr Ben Carrall was appointed to supervise her. Ms Webster did not appreciate Mr Carrall’s management style. She said she felt he was micro-managing her. She spoke of being irritated by his many emails and felt she had lost her autonomy, and that she was no longer trusted. She said she decided to seek another job within the agency because she felt unappreciated, and because she thought Mr Carrall had not been sufficiently sensitive to difficulties she experienced after she returned to work following shoulder surgery. She said she also felt under undue pressure to deal with performance issues in her team that had arisen before she took over, and which had accrued while she was on leave dealing with her shoulder problem.

5.        Ms Webster acknowledged her relationship with Mr Carrall may have been coloured by the knowledge that Mr Carrall was friendly with another employee of the agency with whom Ms Webster was feuding.

6.        The feud between Ms Webster and the other officer appears to have arisen because Ms Webster became romantically involved with a senior male officer of the Agency who had previously been involved with Mr Carrall’s friend. We shall refer to the female officer as Ms X and the male officer as Mr Y.  Mr Y had ended his relationship with Ms X during 2006 before taking up with Ms Webster shortly thereafter. Mr Y’s relationship with Ms Webster lasted for about a year. It seems

Ms X had difficulty accepting the new relationship. Ms Webster cited various examples of harassment she and Mr Y experienced as the hands of Ms X.

Ms Webster referred in particular to the large number of SMS communications and phone calls the couple received from Ms X. At some point, Ms Webster began to respond and the exchanges became increasingly acrimonious. The exchanges finally spilled over into the workplace when Ms Webster responded to an email sent on 22 September 2006 from Ms X on her work account. Ms X had asked Ms Webster not to contact her again, adding: “Please understand I am part of [Mr Y’s] life.” Ms Webster’s could not resist sending a lengthy response from her work email account. Ms X (who had by then left the Brisbane offices of the respondent) subsequently complained to her employer about that email and about a string of SMS communications sent from Ms Webster’s mobile phone in February 2007.

7.        Ms X’s complaint was initially described as an informal one. It seems her managers were unsure what to do with it until a decision was taken to have

Ms Lorna Andrews deal with the matter on a formal basis in July 2007. Ms Andrews explained her role in the course of the hearing and in a statement provided to the Tribunal. She sent a notice of suspected breach of the Code of Conduct to

Ms Webster and arranged for the appointment of an independent investigator on

5 September 2007.

8.        Ms Andrews’s choice of investigator was the subject of some comment at the hearing. The investigator was a recently-appointed senior officer of the Agency in its Perth office. He had previously been a policeman. Ms Andrews explained she believed the individual she appointed as an investigator was an appropriate choice because (a) someone very senior would be required given that at least one of the individuals who would be interviewed (ie Mr Y) was also a senior officer; and (b) it was desirable for the investigation to be conducted by someone who was a newcomer to the respondent and who was located far from the personalities involved in the dispute. Ms Andrews made it clear she was very concerned about the sensitive nature of the problem, which she said was quite unusual. It seems the investigator’s background in the police was also regarded as an advantage, presumably because he was experienced in conducting investigations.

9.        The investigation that followed took several months. The material considered by the investigator is set out in clause [7] of his report. Ms Webster provided a written statement and she tendered her personal records. She was also interviewed at some length. That interview was recorded. Other individuals were also interviewed. The investigator said it was difficult to arrange the interviews because the individuals in question were not readily available because of leave. As it happens, we are satisfied from the evidence of Ms Webster and Mr Y that their respective leave arrangements were not the cause of significant delay.

10.      The investigator provided his report to Ms Andrews on 19 March 2008. The report included the investigator’s findings and opinion that (a) Ms Webster’s SMS communications sent on her personal account after work hours in late February 2007 constituted a breach of the Code of Conduct, but (b) the email from Ms Webster’s work account was not a breach of the Code because it was not sent in the course of work. He recommended that Ms Webster be formally admonished and counselled, and that a record of the admonishment be made on her file.

11.      Ms Andrews did not agree with the report’s conclusions or recommendation. Although she said in her evidence that she thought the report was useful, she took legal advice and made a different decision on 26 May 2008 in relation to the complaint. She decided she was satisfied the email from the work account was work-related and in breach of the Code of Conduct but concluded the SMS exchange did not arise out of employment and was therefore a private matter that did not give rise to a breach of the Code of Conduct. She imposed a lesser penalty – a reprimand that was not recorded on the applicant’s file - which Ms Webster acknowledged and accepted in her email of 12 June 2008.

12. With the benefit of hindsight, it is apparent the investigation took too long, and it may have been attended by too much formality. The fact the investigator was located in Perth undoubtedly created logistical difficulties. (We note, for example, that Mr Y spoke of a delay in arranging a suitable face-to-face interview because neither he nor the investigator was likely to be in the same city at the same time. The interview was conducted some time later by telephone.) Ms Andrews’s ultimate decision was undoubtedly sensible and appropriate, but the circumstances of the investigation raise a question over whether it was “reasonable administrative action taken in a reasonable manner” as required under the Act. We will return to that question in due course.

13.      Ms Webster had taken up a position as a team leader dealing with objections before she learned of the outcome of the investigation. She started in that role on

29 May 2008 but she encountered difficulties that she now attributes to her emerging psychiatric condition – a condition that she attributes to the Code of Conduct investigation. She was often late to work and she was taking lots of unplanned leave. Her productivity at work was seriously affected. At the same time, she was experiencing the stress associated with the breakdown of an abusive relationship (not with Mr Y, we might add; that relationship had ended some time before) and the stress of a new relationship with a soldier who had been posted to Iraq. Ms Webster played down the stress involved with the last relationship: she says she and her new boyfriend had only been together for a relatively short period when he was posted overseas. She was also experiencing financial difficulties because she had lost pay as a result of taking so much time off work, and one of her elderly grandparents was very ill.

14.      The respondent relies on the history provided to a number of the doctors who saw Ms Webster during this period as a basis for arguing that events in

Ms Webster’s personal life precipitated her depression condition. The respondent also relies on the evidence of Ms Reid, who supervised Ms Webster, who said the applicant was focused on her personal life as a source of problems.

15.      Ms Webster’s depressive condition is almost certainly multi-factorial. It is difficult to say with confidence what experience (or combination of experiences) led to the onset of the condition. We acknowledge Ms Webster’s personal life appears to have been hectic. There were a number of stressors present. We suspect those non-work-related factors are the source of the applicant’s current difficulties. The Code of Conduct investigation might have played a part; it is hard to say how big a part, if any. If it did play a part in the onset of her condition, we are satisfied it was the only work-related factor that was present. In reaching that view, we expressly exclude the possibility that Mr Carrall’s management style might have played a role in precipitating Ms Webster’s condition. She did not like working for him but we were not provided with evidence that would suggest he said or did anything that could have made a contribution towards the onset of her condition. Ms Webster effectively acknowledged as much in the course of her closing submissions. She said she relied on the Code of Conduct investigation for the purposes of her case.

16. In the circumstances, we do not think we need to reach a concluded view as to the extent of any contribution made by the Code of Conduct investigation. We can accept it did make a contribution for the purposes of the exercise, but it does not matter in the end analysis. We take that view because we think the Code of Conduct investigation, while imperfect, is nonetheless “reasonable administrative action taken in a reasonable manner” within the meaning of s 5A of the Act.

REASONABLE ADMINISTRATIVE ACTION?

17.      A good deal has already been written about the meaning of the expression “reasonable administrative action taken in a reasonable manner”. For our part, we doubt it is helpful to paraphrase or illustrate the words of the statute. We would rather just apply the plain words to the facts we have identified.

18.      We are satisfied the decision to launch a Code of Conduct investigation was reasonable in all the circumstances. A complaint was made, and it had to be investigated. We do not think it matters that the complainant apparently made the complaint on an informal basis. We asked during submissions whether the appointment of such a senior officer from another state to conduct an inquiry was an exercise in overkill, but we accept the evidence of Ms Andrews that she thought the matter was serious and sensitive, and that – given the seniority of the people who were involved – it was appropriate to proceed with a high degree of formality. She took advice throughout the process. She did not act precipitously or unreasonably, even if she was being risk averse. We also do not think there can be any criticism of her ultimate decision, which was reached after reading the report and taking advice.

19.      There is a more serious question about the length of time that it took for the investigation to be completed. Serious delay might suggest reasonable administrative action was taken in an unreasonable manner. In this case, the investigator could have organised interviews and his review of the evidence in a more expeditious manner. But while the benefit of hindsight suggests the investigation could have been done better, we are not satisfied that his conduct, or the conduct of the investigation more generally, was unreasonable.

CONCLUSION

20. If we take the applicant’s case at its highest, we would accept the Code of Conduct investigation made a significant contribution to the onset of her depressive condition. But assuming that is the case, we think the investigation is properly regarded as reasonable administrative action taken in a reasonable manner within the meaning of s 5A. In those circumstances, the decision under review must be affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr Maynard

Signed: ....................................................................................
  Kerri Smith

Date of Hearing   10-13 May 2011
Date of Decision   18 May 2011
Representative for the Applicant    Self-Represented
Counsel for the Respondent         Mr C Clark

Solicitor for the Respondent         Ms L Pendle, Australian Government Solicitor