Wiggins and Comcare (Compensation)

Wiggins and Comcare (Compensation) [2017] AATA 785 (31 May 2017)
Division:GENERAL DIVISION
File Number: 2014/5618
Re:Elizabeth Wiggins
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Regina Perton, Member

Date:31 May 2017
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that:
(1)Ms Wiggins suffered an injury, namely chronic adjustment disorder with depressed and anxious mood with features of traumatisation on 3 March 2014 and is entitled to compensation under the provisions of the Safety, Compensation and Rehabilitation Act 1988 (the SRC Act).
(2)Comcare shall pay Ms Wiggins’ costs and disbursements pursuant to s 67 of the SRC Act.

.....................................[sgd]...................................
Regina Perton, Member
COMPENSATION – employment by Australian Federal Police – chronic adjustment disorder – meeting with team leader - whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether applicant entitled to compensation for incapacity – decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A(1), 5A(2), 5B(1), 5B(2), 5B(3), 14(1), 67
Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Mooi (1996) 69 FCR 439
Lim v Comcare [2017] FCAFC 64
Re Beasley and Comcare (2012) 130 ALD 330
REASONS FOR DECISION
Regina Perton, Member
31 May 2017

Elizabeth Wiggins, known as Lizzie Wiggins, joined the Australian Federal Police (AFP) in 2008 after more than a decade with Victoria Police. She lodged a claim for compensation dated 20 March 2014 for a psychological condition which she described as mental state that occurred as a result of bullying by her team leader, particularly on 21 February 2014 (the counselling meeting) while on deployment to Papua New Guinea (PNG).
On 22 May 2014 Comcare refused Ms Wiggins’ claim. Comcare accepted that her condition of anxiety state was significantly contributed to by her employment but determined it had arisen from reasonable administrative action taken in a reasonable manner by the AFP in a number of one-on-one meetings with Ms Wiggins’ team leader. On 24 October 2014, upon reconsideration, a Comcare delegate affirmed the decision. On 29 October 2014 Ms Wiggins sought review by the Tribunal.
LEGISLATIVE BACKGROUND
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
...
Section 5A of the Act states:
Definition of injury
(1) In this Act:
injury means:
(a)   a disease suffered by an employee; or
(b)   an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)   an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(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.
Section 5B of the Act states:
Definition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material
Ailment is defined in s 4 of the Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES
Comcare concedes, and the Tribunal accepts, that Ms Wiggins suffers from a psychological condition which, on the basis of the medical evidence, may be characterised as chronic adjustment disorder with depressed and anxious mood with features of traumatisation (the condition) that occurred on or about 3 March 2014 (when Ms Wiggins first sought medical treatment) and, as a result, Ms Wiggins became incapacitated for work. The condition is outside the boundaries of normal mental behaviour and functioning (Comcare v Mooi (1996) 69 FCR 439), and was contributed to, to a significant degree, by her employment with the AFP. The condition constitutes a disease for the purposes of s 5A and s 5B of the SRC Act.
The issue before the Tribunal is whether the condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment, which would prevent Ms Wiggins from receiving compensation in accordance with s 5A of the SRC Act as the condition would not come within the definition of injury. This involves consideration of the following:
oWhen did Ms Wiggins suffer the disease?
oWas the disease suffered as a result of reasonable administrative action in respect of Ms Wiggins’ employment with regard to the counselling meeting?
oIf so, was the reasonable administrative action taken in a reasonable manner?
When did Ms Wiggins suffer the disease?
Ms Wiggins attended her general practitioner on 3 March 2014 after she returned from PNG and complained of bullying and harassment while in PNG. In particular, Ms Wiggins alleged that she was verbally abused by her team leader during the previous week. She was certified unfit for work, with a diagnosis of anxiety with depressive symptoms. The Tribunal finds that Ms Wiggins suffered the disease on 3 March 2014.
EVIDENCE
Ms Wiggins
Ms Wiggins stated that after completing year 12, she commenced employment with the State Savings Bank of Victoria (later the Commonwealth Bank of Australia) and stayed for a number of years before joining Victoria Police in 1995. After serving in several locations and reaching the rank of Leading Senior Constable, she resigned in 2008 to join the International Deployment Group (IDG) of the AFP because she was keen to participate in interstate and international deployments and to experience different cultures. She said that she felt passionate about her career, and enjoyed postings to the Northern Territory, Christmas Island, Timor Leste and the Solomon Islands.
On 9 December 2013 Ms Wiggins was deployed to PNG with the Papua New Guinea Australia Policing Partnership (PNG-APP), which was part of the Australian Government’s support to the PNG Police. Although her substantive rank was Leading Senior Constable, in PNG Australian AFP officers held a brevet (or temporary) rank one level higher, so her rank in PNG was Sergeant.
Ms Wiggins said that her role was that of general duties and involved working at PNG police stations to provide advice to local police officers. She stated that AFP officers were not permitted to have accoutrements while in PNG and this meant that they did not carry a utility belt, weapons or other items such as batons or capsicum spray. She explained that she had met her team leader, Sergeant Peter Withers (brevet rank of Inspector), briefly in Canberra before arriving in PNG but had not worked with him previously. She said that from the outset she found Mr Withers to be very controlling, with a strict daily routine of meetings and she felt that Mr Withers liked to know where everybody was at all times.
Ms Wiggins told the Tribunal that shortly after she commenced duty in PNG Mr Withers had approached her to go walking around the yacht club and exercising with him. She said that initially the arrangement worked well, but that Mr Withers had turned the process into a competition, where he would walk ahead of her and sprint to ensure he finished before she did. She said that after this she decided to cease the arrangement and did her own exercising. Ms Wiggins stated that when she was around Mr Withers, she felt as if she was …constantly walking on eggshells. I was scared of upsetting him because he seemed to get angry so quickly. I felt as if my behaviour was constantly being watched, monitored and scrutinized.
Ms Wiggins elaborated on her dealings with Mr Withers and said that on the two occasions when she was partnered up with him in the car …he told me off. He got me on my own on both occasions in a confined space. On the first occasion …he told me off for using my mobile phone and basically told me I was not allowed to use my mobile phone whilst at work. …On the other occasion …he got me alone with him in his car. He accused me of being aggressive and not a team player. He did not give me any explanation for why he thought this. She felt that Mr Withers had singled her out and that she was isolated within the team, particularly as she used her mobile phone to make notes and prepare her daily reports. She acknowledged that Mr Withers asked her not to use her phone for playing computer games, and she said that she complied with this request.
In respect of her perceived lack of support from Mr Withers, Ms Wiggins stated that she was upset when team members continually called her Liz even when she repeatedly asked to be known as Lizzie. She said that Mr Withers was aware of her strong views but he made her feel that it was unreasonable or inappropriate to expect her work colleagues to use her preferred name.
On 3 February 2014 Ms Wiggins was feeling so stressed that she consulted a doctor at the international medical centre in PNG. She said that it was due to Mr Withers being controlling, and that it …was as if I wasn’t allowed to do anything remotely involved with policing without asking Withers first. I was in tears. I spoke to the doctor about how stressed I was. However at that stage I just wanted to keep working and I hoped that I would be able to manage the difficult work environment that I had found myself in.
On 31 January 2014 Ms Wiggins had a one-on-one meeting with Mr Withers at his request. She stated that during the meeting he told her that some team members were playing games (in the sense of engaging in petty politics, point-scoring or banter) and that he accepted that she preferred to sit back and watch, rather than participate. She said that Mr Withers told her that prior to being deployed to PNG he and other high-ranking AFP members had received emails that described her as a trouble-maker. She told the Tribunal that she asked for a copy of the emails but he refused, saying she was not entitled to receive a copy. She also said that she was not comfortable with a discussion about her forthcoming Performance Development Assessment (PDA) being discussed at the dining room table in Mr Withers’ apartment, so he agreed to shift the subsequent meeting to a neutral setting.
During the PDA process Ms Wiggins told Mr Withers that she was feeling stressed and was attending a gymnasium to minimise the stress, although she said that she did not tell him that he was the cause of the stress because …His anger could turn quickly and in one moment he would be your best friend and the next moment he would just get angry.
Ms Wiggins said that …Things came to a head on 21 February 2014. She explained that it was a Friday, and after a daily team meeting in the computer room of the AFP building at Boroko Police Station, Mr Withers said that everyone should leave but told her to stay behind. She said in her written statement:
…Peter Withers stormed to the end of the office where I was sitting. He was in such a hurry to have me cornered he literally pushed past both David Gleeson and Leigh Seager so I had nowhere to move or go. There was a look on Withers’ face of pure dislike and anger. I said to him “Am I in trouble”. He said “Yes you are”. I then asked him what I had done. He told me to stop playing games. He accused me of trying to pull the wool over his eyes.
Ms Wiggins said that during the counselling meeting she was scared to a level that she had never felt before. She stated further that Mr Withers was angry but she told the Tribunal that as this exchange was going on she was not even sure why Mr Withers was so angry. She later understood that the issue was an interaction she had had with a PNG police officer (Ms Rachael Pinder), with whom she had worked in a previous deployment to the Solomon Islands.
Ms Wiggins stated that she had obtained permission to invite Ms Pinder and other officers to dinner as part of the process of building rapport with the local police that had been encouraged by Mr Withers. She said that officers of the PNG Sexual Offences Squad (SOS) were having difficulty with an external organisation that was changing the way it prepared its reports regarding rape victims, and Ms Pinder was concerned about the ramifications of the changes for using the reports in evidence. Ms Wiggins told the Tribunal that she took the new report format to other AFP officers and left it with them to give to relevant PNG authorities, after outlining her concerns.
Ms Wiggins explained that one day Ms Pinder told her that she had received a text message asking about Standard Operating Procedures (SOPs) at the SOS. The sender was Michelle. She said that it might have been Michelle Hunter, a team colleague, or Michelle Harris, a member of the detective unit within the AFP’s Criminal Investigation Division (CID). She stated:
I thought it would look bad for the AFP if our counterparts were being approached via texts and I thought it was better that there should be a face to face meeting with the team leader rather than a text to Rachael who was not actually in charge of the Sexual offences Unit. I spoke to Peter Withers and told him that it did not look good. Withers went to the Criminal Investigation Department Division and it came out that it was Michelle Harris who had sent the text and apparently she got upset that I had raised it. Withers accused me of knowing that it was Michelle Harris all along and that I did it to cause problems for Michelle. He accused me of being a troublemaker and said that Michelle had told him all about me and what had happened in Timor…I understood from this that he was referring to a situation where I had made a formal complaint of bullying against a fellow officer whilst I was serving in Timor. Michelle Harris served in Timor with us and she knew about the complaint.
Ms Wiggins stated that an internal investigation into her complaint was launched in April 2012 but has not been completed. She said that Ms Harris had no right to breach the confidentiality of the process, but Mr Withers had said that Ms Harris had told him and Superintendent Morgan (Mr Withers’ superior), and that she (Ms Wiggins) had gone to PNG with a target on my back.
In respect of Mr Withers’ demeanour at the counselling meeting, Ms Wiggins said:
At one point, whilst being stuck in one corner of the room, I was sitting at the desk in a chair with coaster wheels. Withers was leaning over the table, yelling at me and getting into my personal space. His face was red with anger and I had pushed the chair upon two wheels to get away from him. Withers kept leaning towards me and I wasn’t sure if the chair was going to tip over or not. I was balancing on two wheels and holding onto the desk.
Ms Wiggins went on to say that a colleague, Mr Malcolm Scott, came into the room and Mr Withers took a step back, and she took the interruption as an opportunity to get past Mr Withers and out of the corner. She walked down the office and towards the door, and said that she told him she wanted an independent person with her at the meeting. She told the Tribunal that Mr Withers replied that if she left, he would go up to the Supers (Superintendent’s office) and that she …will be going home. Ms Wiggins stated that she felt trapped and believed she had no choice but to remain. She said that she sat in a chair next to the entrance and spent the rest of the meeting with her head in her hands while Mr Withers stood over her, berating her. Ms Wiggins said that at one point Mr Withers asked: Are you okay? to which she replied that she was not, as she was sobbing hysterically and could hardly breathe.
Eventually, according to Ms Wiggins, Mr Withers told her to take an hour off and the meeting ended. She said she attended a team meeting later that day but was on the verge of tears. She stated that before the end of the shift, Mr Withers came up to her but said nothing, and she had the impression he was checking up on her or was …still trying to monster me to let me know that he was watching me.
After this event Ms Wiggins was due for time off at the weekend, and told the Tribunal that she was …shattered. I locked myself in. I wouldn’t answer the door. She said that she …cried on and off for nearly four days. I felt publicly humiliated. The entire team knew that I had been hauled over the coals. She said that on the Saturday she spent some time with the PNG national netball team, and on the Sunday she went to netball to umpire a match because she was fulfilling a commitment made some weeks earlier. Afterwards she was advised by a friend to contact the welfare section of the AFP in Australia. On Monday 24 February 2014 she sent Mr Withers a text message that she was unwell and would not be reporting for work. She said that she informed an AFP psychologist that she could not work with Mr Withers. She told the Tribunal that she was so scared after the counselling meeting that she felt unable to remain in PNG, and had never felt so scared or vulnerable at work in her 19 years of policing.
On 24 February 2014 a meeting was arranged with Mr Alan Scott, Assistant Commissioner, AFP (then Mission Commander in PNG). Ms Wiggins said that she took a colleague (Marty Kappel) as a support person, and that Mr Scott told her that she was a known trouble-maker, or words to that effect) and admitted that there had been emails sent about her before her arrival in PNG. She said that he defended Mr Withers’ behaviour and told her that Mr Withers had been …pushed to boiling point and that …his way of dealing with it was why he reacted the way he did. Ms Wiggins said that she agreed to move to another team and that Mr Scott told her that she needed discipline. She commenced with the new team the following day.

Ms Wiggins said that on the Tuesday or Wednesday she was on her way out of her apartment block when she saw Mr Withers, who looked at her …with pure hate. On Thursday 27 February 2014 she was sobbing uncontrollably in the shower, and told her team leader that she wanted to return to Australia until she felt better. Mr Scott and her team leader attended her apartment, and Mr Scott assured her: We will not close any doors on you. She left PNG on Friday 28 February 2014 and returned to Melbourne.
Ms Wiggins said that on her return to Australia she felt broken…I couldn’t see my family or friends without crying. I had no confidence. I couldn’t eat. I couldn’t do anything. She said that since leaving PNG she has been hypervigilant, and feels the need to continually look over her shoulder. She described weight fluctuation and disturbed sleep, feeling barely able to cope. She consumes alcohol daily and has not been able to return to work. She said that the thought of Mr Withers makes her feel physically ill, and the thought of seeing or being in the same room as him or Mr Alan Scott makes her feel ill. She attributes this to her fear of Mr Withers because she is scared of him and has seen him bully and harass other officers. As for Mr Alan Scott, she said that she believes that he condoned Mr Withers’ conduct. Ms Wiggins attended her general practitioner on 3 March 2014 and was referred to a psychologist, whom she consults regularly. She said that she has been prescribed anti-depressant medication. She is uncomfortable in confined spaces or in a corner of a room, and experiences violent nightmares. She cries frequently and is irritable almost daily.
Under cross-examination Ms Wiggins could not explain why neither Mr Leigh Seager (a colleague) nor Mr Malcolm Scott in their written statements had mentioned that Mr Withers was yelling at her during the counselling meeting. She agreed that if her team leader had ongoing concerns about her use of a mobile telephone, he had the responsibility to raise the matter with her, and had done so in a reasonable manner prior to their meeting on 31 January 2014. She said that she believed after that meeting that she was prohibited from using her mobile phone, even for work-related purposes, but she used her phone anyway because it was her means of communication and she could complete her situation reports on it.
Ms Wiggins agreed that she had reported to the doctor she consulted on 3 February 2014 in PNG that she was close to tears and having a poor appetite because she had felt isolated and bullied. However during cross-examination she could not recall any of the events that caused this, as she was now focused on the events of 21 February 2014. She conceded that on at least one occasion at the end of a shift, she was in a car driven by a colleague and was playing a computer game. She agreed that she should not have done so, but stated that it kept her mind occupied and they were on their way home, and she thought it was safe to do so. She disagreed that towards the end of January 2014 Mr Withers had not been aggressive to her in respect of her mobile phone use and had not isolated her, and said that Mr Withers had called her aggressive and told her she was not a team player.
In respect of the counselling meeting, Ms Wiggins agreed that her colleagues Mr Seager and Mr Kay-Clough were waiting outside for the meeting to end, and Mr Malcolm Scott wished to use a computer in the office. She reiterated that Mr Withers pushed Mr Seager out of the way but explained that it was more of a brushing past rather than a physical push. She said that despite feeling anxious and upset she felt compelled to complete her shift that day after taking one hour off because Mr Withers had instructed her to do so. She maintained that she did not seek medical attention because this would have required her to speak to Mr Withers again, although she agreed that several days later she did not consider herself fit for work so she sent Mr Withers a text message to that effect. She said that on 27 February 2014 she had made the decision to return to Australia.
Ms Anita Harraway
Ms Anita Harraway, Leading Senior Constable, Victoria Police, made a written statement dated 2 July 2015 (and a further statement in identical terms dated 25 January 2016) in which she said that she met Ms Wiggins when both were working at St Kilda Police Station. She described Ms Wiggins as her best friend who is thorough, organised and trustworthy. She stated that she spoke to Ms Wiggins in PNG and Ms Wiggins sounded extremely flat and mentioned she was returning to Australia because she felt scared of one of her male supervisors. Ms Harraway told the Tribunal that on her return Ms Wiggins had explained that she was frightened of her immediate supervisor in PNG. Ms Harraway stated:
…I don’t recall his name, but Lizzie did mention that if it wasn’t for one of her colleagues coming into the room, she would never have had the chance to move out of the corner of the room where her immediate supervisor was intimidating her in her personal space to the point where she has never felt so scared in all her life…she seriously thought her immediate supervisor may hurt her…
Lizzie was in fear for her safety and was absolutely petrified of her immediate supervisor. Lizzie felt that she had to stay in the meeting room…she said that she couldn’t physically look at her immediate supervisor and she had her head in her hand whilst he was berating her.
Under cross-examination Ms Harraway stated that Ms Wiggins appeared to be a changed person when she returned to Australia. She agreed that she relied on Ms Wiggins' version of events and that Ms Wiggins did not itemise each part of the meeting and elaborate on the events that occurred at the counselling meeting.
Ms Cheryl Apostolopoulos
Ms Cheryl Apostolopoulos, Ms Wiggins’ sister, made a written statement dated 25 May 2015 in which she said that in January 2014, Ms Wiggins advised her by telephone that Ms Wiggins had been involved in an incident with Mr Withers, and the incident had affected Ms Wiggins’ emotional state. Ms Apostolopoulos said on Ms Wiggins’ return to Australia Ms Wiggins had advised her of bullying and harassment perpetrated by Ms Wiggins’ supervisor. She stated that Ms Wiggins was visibly shaken and was struggling emotionally and physically, and was always crying.
Mr John Lautrec
Mr John Lautrec, formerly an AFP officer, made a written statement dated 21 May 2015 in which he said that he had known Ms Wiggins for about four years and had been deployed with her on three occasions. He said that he found her to a very professional police officer with a high level of integrity. Mr Lautrec stated that on 21 February 2014, while on deployment to PNG, it was brought to his attention that a serious incident between Ms Wiggins and Mr Withers had occurred, and on the following day he and a colleague went to check on her but she would not answer or open her door. In oral evidence Mr Lautrec described Mr Withers as a bully, but agreed that he had never witnessed any such behaviour by Mr Withers.
Mr Leigh Seager
Mr Leigh Seager made a written statement dated 21 May 2014 in which he said that he was deployed to PNG on 30 December 2013 and was assigned to the same team as Ms Wiggins, with Mr Withers as the team leader. He said that he had been deployed on a previous occasion with Ms Wiggins in about 2009, and in PNG he and Ms Wiggins had developed a close personal and professional relationship.
Mr Seager said that on 21 February 2014 he attended the team meeting, and Ms Wiggins was seated at the rear desk in the back left-hand corner. He described Mr Withers as having an …autocratic leadership style. He stated that at the meeting Mr Withers was angry and told the team to have no further contact with the SOS. He stated that after the meeting Mr Withers ordered all team members except Ms Wiggins out of the office. He said he stood with Mr Kay-Clough a short distance away and observed Mr M Scott enter the office and leave a short time later. He explained that after about 15 minutes he saw Ms Wiggins come out of the office and she walked past without speaking. He said:
She looked pale, in shock and was clearly distressed. Inspector Withers came out of the office a short time later and said nothing.
I saw Sergeant Wiggins later in the day and she told me that Inspector Withers had blamed and severely berated her over the …SOS matter…She said that she was scared and wanted to leave the office but felt trapped and was denied a request to have another person present. She spoke very little, was extremely upset and visibly shaken.
Mr Seager stated that after the incident and over the following week, he observed that Ms Wiggins was …withdrawn, at times unable to speak without crying, was extremely distressed and inconsolable. He was concerned for her emotional welfare. In oral evidence, Mr Seager told the Tribunal that Mr Withers had a rigid style of leadership: …absolute power, complete control. He said that at the team meeting Mr Withers was angry and had an aggressive tone of voice and was confrontational. He said that Mr Withers commenced the meeting by saying he had been informed that that there was some undermining or circumventing of procedures with the Sexual Offences Squad by our team, and that it was unacceptable, not to continue. It was to cease immediately or there’d be serious repercussions, which was completely out of left field…He was very angry about it…The tone of his voice…it was aggressive…I took it as threatening…It was confrontational. Mr Seager stated that he felt uncomfortable when Mr Withers ordered everyone except Ms Wiggins to leave. He said that he was partnering Ms Wiggins that day and Mr Kay-Clough was partnering Mr Withers, so he and Mr Kay-Clough had to wait for their respective partners.
Under cross-examination Mr Seager agreed that he was aware that an AFP officer may make a complaint about bullying by a supervisor and that the complaint would be investigated. He conceded that when Ms Wiggins left the counselling meeting and walked past him without speaking, he did not notice any tears or evidence that she had been crying, and he had only a fleeting look at her as she passed him.
Mr Martin Kappel
Mr Kappel (at the date of hearing an officer with Victoria Police) made a written statement dated 18 February 2016 in which he said that he met Ms Wiggins in about 2008 during an AFP training session. He was deployed to PNG in November 2013 and was attached to the Prosecutions Advisory section, and had minimal work-related contact with her, although they socialised together occasionally. He stated that in mid to late February 2014 he spoke to her by telephone and she could hardly speak and was distraught. He said that the next day they met at a restaurant and she was distressed, and all he could work out was that she had been involved in some altercation with Mr Withers the previous day in the office at the Boroko Police Station. He stated that Mr Withers was standing over Ms Wiggins and blocking her exit, and had behaved in a verbally aggressive and physically intimidating manner towards her. He said that he was concerned about her state of mental health, and that she had asked him to accompany her on the following Monday when she attended a meeting with Mr Alan Scott, when he acted as a support person for her.
In oral evidence Mr Kappel stated that at the meeting Mr Alan Scott had told Ms Wiggins that he had received emails from AFP management in Canberra that there were issues with her, and that he was warned about her. He said that he could not remember much about the conversation other than Mr Alan Scott telling Ms Wiggins that she would be moved to a different team. Under cross-examination he agreed that he could not recall much of what was said at the meeting and did not take notes. He said that Ms Wiggins was not incoherent at the meeting, but appeared anxious and distressed.
Mr Peter Withers
Mr Withers gave evidence by way of a written statement dated 31 March 2014 to Mr Alan Scott, a further written statement dated 23 July 2015 in response to statements from Ms Wiggins, and by oral evidence at the hearing. Mr Withers explained that he had served in the Royal Australian Navy for seven years, then with a number of State and Territory police forces before joining the AFP in 2002. He had been deployed on several overseas missions before the deployment to PNG, and had held the rank of Sergeant since 2009. He stated that he first met Ms Wiggins in November 2013 at a training course in Canberra but did not interact with her other than a greeting at the commencement of sessions.
Ms Wiggins was assigned to Mr Withers’ team on her arrival in PNG in December 2013. He said that Mr Alan Scott had informed him that Ms Wiggins …could be difficult to deal with on occasions… and that he would be most likely able to manage her based on his experience and level-headed approach. He said that he immediately sought to form a friendly, professional relationship with her, including daily walks, which initially were productive but which he later chose to discontinue because he felt that she was developing a domineering attitude and was criticising his walking style and speed. Mr Withers said that within the team environment he began to observe that Ms Wiggins was displaying a negative and at times aggressive approach to him and other team members, such as excessive use of her mobile phone, not associating with others during breaks, and constantly being in a bad mood. He decided to make contemporaneous notes about his interaction with her.
Mr Withers stated that on 7 January 2014 he had a conversation with Ms Wiggins in which she raised the issue of team members shortening her name to Liz against her wishes, and she told him that this was the reason for her aggressive attitude towards other team members. He said that he explained to her that this might be a term of endearment, but he had requested team members to respect her wishes and that this had largely occurred. He stated that he tried very hard to establish rapport and empathy with her, and was genuinely trying to assist and support her, but she did not display a friendly attitude towards him.
On 15 January 2014 Mr Withers had a further conversation with Ms Wiggins. He said that the previous day he had observed her using her mobile phone constantly to send text messages while working with local police. He stated that at the next team meeting he emphasised the unprofessional image created by excessive use of text messages, and noted that Ms Wiggins was looking at her mobile phone screen during the meeting. He added that he asked her to put the phone away and she complied. On 19 January 2014 Mr Withers was approached by Mr Kay-Clough who told him he was reluctant to work with Ms Wiggins because she spent most of her time in the police vehicle sending and receiving text messages. Mr Withers said he told Mr Kay-Clough that the rotating shifts meant that all team members would work with each other at some time during the week.
On 21 January 2014 Mr Withers was informed by Ms Hunter that the previous day Ms Wiggins had spent most of the shift using her mobile phone, including playing computer games. Mr Withers said that on the same day he reinforced to the team that excessive use of mobile phones while on duty, including playing computer games was inappropriate, but he specifically did not single out Ms Wiggins because he was trying to maintain team harmony, despite feeling an increase in tension with the team.
Mr Withers stated that he continued to observe that Ms Wiggins was not happy in the team and that her general unfriendly and aggressive demeanour and behaviour was having a negative impact on the team. He stated that he found her a difficult person to deal with and as a result chose his actions and words carefully in the spirit of fairness for her and for the team. Mr Withers explained that about this time (around 29 January 2014) he noticed that Ms Wiggins‘ work performance had deteriorated, and her daily work reports had become minimal, sometimes comprising less than ten words sent by text message. He said that he counselled her about this.
On 31 January 2014 Mr Withers met with Ms Wiggins for a one-on-one discussion about various issues prior to the six-monthly PDA assessment. He said that they discussed mobile phone use, the team environment, the nature of written reports, and the observations of her aggression and unfriendliness within the team. He stated that Ms Wiggins accepted fault in excessive mobile phone use, insufficient information in written reports and lack of engagement. He emphasised that Ms Wiggins said that initially she considered his actions constituted bullying, but that she realised that he had spoken to other team members, and not just her, about relevant issues, and she withdrew such an allegation. Mr Withers said that the conversation was beneficial and that Ms Wiggins indicated she would address any remaining issues where she needed to show improvement. He was pleasantly surprised at her positive response to the conversation.
Mr Withers stated that on 4 February 2014 he completed the PDA process with Ms Wiggins at a neutral venue at her request, and he was not overly critical of her in the PDA, believing that he would see a much-improved performance and attitude from her, and that his supportive approach was having a positive outcome. He also said he would support her request to be involved in the local netball competition as a player, coach and umpire.
In respect of Ms Wiggins’ general attitude, Mr Withers stated that she appeared to be much happier in the team environment and was interacting in a more positive manner with him and other team members. However he said that within a few days her attitude returned to the aggressive and belligerent one that she had displayed in the previous months. He later learnt that Ms Wiggins was providing advice to SOS members and had developed personal friendships with SOS members. He concluded that Ms Wiggins was involving herself in SOS matters that were not appropriate and were not her responsibility. After considering whether to seek the assistance of a female officer to address the matter, he said that he decided that it was his responsibility, and he resolved to address it himself.
At the team meeting on 21 February 2014 he reminded team members (including Ms Wiggins) that contact with the SOS was only intended to be rapport-building rather than close engagement and offering in-depth advice, with the team’s focus to be on development of general duties of the local police station. He said that he did not recall being angry at the team meeting and would have had no particular reason to be angry on that day, although he did not specifically deny being angry.
Mr Withers stated that at the end of the meeting he had a one-on-one meeting (the counselling meeting) with Ms Wiggins, who was sitting at the back of the office, her usual seat of choice for meetings. He said that he seated himself across the desk from her and adopted a relaxed demeanour before outlining the issues, including the level of involvement with the SOS and her advice that she had provided information that she knew conflicted with ad vice provided by the CID. He said that he then spoke to Ms Wiggins about the telephone call made by Michelle and whether it might have been Ms Hunter rather than Ms Harris who made the call. He said that Ms Wiggins did not respond, and he asked her to stop playing games.
Mr Withers told the Tribunal that he considered the matter to be serious and told Ms Wiggins that he would be discussing it with the Superintendent at the earliest opportunity, as he believed that Ms Wiggins was perpetuating the issue with Ms Harris by using her contact with the SOS. He said that he viewed Ms Wiggins’ involvement as unprofessional and personally motivated, rather than being in the best interests of the mission to PNG or the SOS, because the primary role of the Mission was to interact with the local police station in general duties, whereas the SOS was the responsibility of the CID, which was a separate section of the AFP.

Mr Withers informed the Tribunal that there was no reason that Ms Wiggins could not have contacted Ms Harris to discuss her concerns. He said he had no doubt that Ms Harris was the person who made the call because she was involved with the SOS, and he was not impressed that Ms Wiggins had at first said that she did not know which Michelle had made the call, then later stated that it was Ms Hunter. He said that he was concerned when he discovered that there had been issues between Ms Wiggins and Ms Harris when both were serving in Timor Leste and that there had been an internal police investigation.
Mr Withers believed that Ms Wiggins was endeavouring to interfere in the daily policing duties of Ms Harris. He said…I knew that there was meddling, I knew that there was an ulterior motive in it and I did establish that or I would’ve discussed it further and that’s not guesswork, that was what I knew. He said that he made the decision that the issue had to be nipped in the bud immediately, and he wished to discuss it personally and independently with Ms Wiggins, as well as the amount of time that Ms Wiggins was spending on SOS matters for which she had no responsibility.
In respect of the counselling meeting, he said that at no time did Ms Wiggins ask for another person to be present. He said that she became visibly upset towards the end of the meeting when he told her that he did not agree with her version of events and she asked whether he was calling her a liar, protesting that she had done nothing wrong. He said that he advised her that he was disappointed in her actions and her unwillingness to focus on her allocated tasks as a member of the team, and at no time did he call her a liar.
In respect of his own demeanour, Mr Withers stated that he endeavoured to keep the conversation calm, focusing on the relevant issues, and did not raise his voice. He explained that at one point towards the end of the meeting, Malcolm Scott put his head in the door and began to enter, but when he realised that a meeting was taking place he left after a few seconds. No other team member was present.
According to Mr Withers, Ms Wiggins became more animated as the meeting progressed. He said that at one point she stood up and said that she was leaving, to which he replied: That is fine, we will both go upstairs and speak with the Superintendent about this matter. He denied that he had used words to the effect that she would be sent home, explaining that he had no power to do so. He denied that he had blocked her exit, and said that she then sat at a different desk and the conversation continued. She appeared upset at the end of the meeting and started to cry. He said that he believed that she became upset and angry because of the information that he was putting to her, rather than anything to do with his demeanour. He stated that, recognising that she was upset, he suggested an early lunch break until a pre-arranged team meeting scheduled for 1pm. He said that Ms Wiggins participated in the meeting and he noted that she no longer appeared upset. He believed that the matter had been dealt with and that she was continuing her normal duties.
Mr Withers said that on 24 February 2014 he received a text message from Ms Wiggins informing him that she would not be at work because she was unwell. He said that he was aware that she had played or umpired netball on the previous two days and was unaware that she was suffering from any medical issues. He said that he later briefed Mr Alan Scott and Superintendents McCann and Morgan about the counselling meeting, and intended to re-open her PDA to include comments about work performance since the formal PDA meeting on 4 February 2014. He said that Ms Wiggins left the Mission on 28 February 2014 and he has had no contact with her since her text message on 24 February 2014.
Mr Withers maintained that at all times he had made a genuine effort to be fair and reasonable in his dealings with her, and did not bully her. He described the counselling meeting as a professional and appropriate discussion about her work performance. He denied trapping her in the office and said that he merely sat down opposite her at the desk. He denied that he lost his temper or yelled at her.
In his written statement dated 23 July 2015 Mr Withers responded to a number of matters raised in Ms Wiggins’ written statement. He said that he did not direct Ms Wiggins not to use her mobile phone while on duty, but reminded her to use the phone appropriately. He denied that he told Ms Wiggins that he had received emails describing her as a trouble-maker. He said that he told her that other members of the team did not want to work with her as she was constantly in a bad mood, was aggressive, would not communicate and was very hard to get on with.
Under cross-examination Mr Withers denied that he had singled out Ms Wiggins for criticism because of information he had received about her history during previous deployments, and stated that he based his actions on observations of Ms Wiggins in the team environment. He agreed that the 31 January meeting had been positive in its conduct and outcome. In respect of contact with the SOS, Mr Withers stated that after making relevant inquiries he was satisfied that Ms Wiggins had been involving herself in matters that were not her responsibility, and he believed that the issue was serious enough for him to discuss with her at the counselling meeting.
Mr Withers denied that on the day of the counselling meeting he was angry and upset that the team had been undermining the SOS and had been interfering in its operations, although he agreed that he was annoyed at Ms Wiggins‘s involvement with the SOS. He said that at the team meeting he made clear to the team that contact with the SOS was to exclude any functional involvement, and disagreed that his decision to speak to Ms Wiggins after the meeting was an impulsive response to his anger about the matter.
Mr Withers said that there was no requirement to give Ms Wiggins prior notice of the meeting, and that in the police environment, such meetings were a normal occurrence. He said that the meeting was a conversation that lasted no more than about ten minutes and was a two-way discussion, not a formal disciplinary session that required him to take notes, prepare an agenda or to offer Ms Wiggins an opportunity to have a support person present. He disagreed with Ms Wiggins’ version of events and stated that her allegations about his actions were incorrect. He said that she was angry, but was not crying, because she had been caught out in respect of the SOS matter, not because of the way he had treated her at the meeting.
Mr Malcolm Scott
Mr Malcolm Scott, AFP officer, made a written statement dated 10 March 2016 in which he said that during the counselling meeting, he entered the office where the meeting was taking place as this was his usual workplace at the Boroko Police Station. He said that Mr Withers was seated at the far desk with his back to him, and Ms Wiggins was seated at the desk at the rear of the office, and he did not notice anything out of the ordinary when he opened the door. On entering the office he heard Ms Wiggins say, in a louder than normal volume: I’m not lying to you. He immediately turned around and walked out of the office. Mr Scott stated that he was in the office for about five to 10 seconds, during which both Mr Withers and Ms Wiggins remained seated. He did not form an impression of Ms Wiggins’ mood. He said that Ms Wiggins walked out of the office about two to three minutes after he did.
In oral evidence Mr Scott stated when he walked out of the office he had a brief conversation with Mr Seager and Mr Kay-Clough who were waiting outside, about ten metres from the office, and shortly afterwards Ms Wiggins came out and he went back into the office.
Mr Alan Scott
Mr A Scott, Deputy Commissioner, Royal Papua New Guinea Constabulary (formerly Assistant Commissioner, AFP), made written statements dated 1 September 2014, 27 July 2015 and 11 April 2016, in which he said that he had served in the AFP for more than 35 years and had been the Mission Commander, PNG-APP, commencing on 22 October 2013. His previous positions within the AFP included Manager of the People Strategies Division, Manager of the Australian Peace and Stability Operations Centre and Head of the AFP Melbourne Office. He stated that, as Mission Commander, he had been made aware that Ms Wiggins had been involved in some very difficult and trying circumstances on an earlier deployment to Timor Leste, particularly in relating to others and in demonstrating appropriate behaviours in the workplace, although he told the Tribunal that Ms Wiggins had passed all the gateways involved in the selection process for deployment overseas, including medical and psychological assessments and checking the professional standards records for outstanding issues, so she was declared suitable for deployment. He said that he was focused on placing Ms Wiggins in a team where her performance could be closely monitored, so he placed her with Mr Withers, who had a steady temperament and who would be a positive influence on her.
Mr Scott stated that during the early part of Ms Wiggins’ deployment, Mr Withers had reported that while she was a difficult team member who experienced problems relating to the other team members, Mr Withers thought she was making a reasonable contribution to the overall team goals. Mr Scott said that he met with Ms Wiggins on 24 February 2014 after her experience at the counselling meeting, and she told him that she no longer wished to be part of that team, and he re-assigned her to another team. He said that the next day, he met with Mr Peter Gelme, who was a member of that team who explained that said that he had endured a difficult time with Ms Wiggins in Timor Leste. Mr Gelme had told him that he did not trust Ms Wiggins and would leave the Mission if forced to work with her. Mr Scott told the Tribunal that on 26 February 2014 he met with four other members of that team, who voiced concerns about Ms Wiggins and who stated that they did not want to work with her.
On 27 February 2014 Mr Scott met with Ms Harris. He said that she told him she had significant issues with Ms Wiggins during a deployment to Timor Leste, and that Ms Wiggins had abused the complaints process. He noted that the next day Ms Wiggins left the Mission to return to Australia. He expressed his opinion that Mr Withers had tried hard to work with Ms Wiggins and to make her a successful member of the Mission, and had taken a range of reasonable management techniques to deal with a difficult employee. He confirmed that any interaction or involvement by Ms Wiggins with the SOS was inappropriate, and it was right and proper for Mr Withers to raise his concerns with her, including any view Mr Withers might hold that Ms Wiggins had a mischievous intent and was undermining Ms Harris.
In respect of the counselling meeting, Mr Scott supported Mr Withers’ assertion that Ms Wiggins had become upset because Mr Withers had highlighted her deficiencies and behavioural traits. He considered that at all times Mr Withers had acted in a reasonable, fair and proportionate manner in his dealings with Ms Wiggins. He denied that Ms Wiggins had been exposed to a hostile environment from the time of her arrival in PNG. He also denied that when he met Ms Wiggins on 24 February 2014, he had made inappropriate comments to her or that before her deployment he had received emails about her reputation. He said that he had been supportive towards her continuing role in the Mission.
In oral evidence, Mr Scott stated that he had been annoyed when he observed Ms Wiggins using her mobile phone constantly during his briefing of new arrivals in PNG. He said that another senior officer had counselled Ms Wiggins, who had apologised for her actions. Under cross-examination, Mr Scott said that almost the entire IDG would describe Ms Wiggins as difficult and infamous. He disagreed with Ms Wiggins’ account of their conversation on 24 February 2014. Mr Scott told the Tribunal that the basis of his positive assessment of the way Mr Withers had dealt with Ms Wiggins was partly the assurance given by Mr Withers, but also Mr Withers’ demeanour towards other members of the Mission, the way he carried out his duties and the way he managed the team generally.
Under cross-examination Mr Scott agreed that his conclusion that Ms Wiggins would be difficult to manage was based on conversations with others and complaints that Ms Wiggins had abused the complaints process. He agreed that he had no actual knowledge that she had done anything wrong.
TRIBUNAL’S CONSIDERATIONS
Was the condition suffered as a result of the administrative action?
In Comcare v Martin (2016) 153 ALD 167 the High Court of Australia stated at 175:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
In Lim v Comcare [2017] FCAFC 64 the Full Federal Court referred to Comcare v Martin and identified a deficiency in the Tribunal’s decision-making process. The Court stated at [40] - [41]:
[40] When regard is had to Comcare v Martin, a deficiency in the Tribunal’s decision-making in Dr Lim’s case becomes apparent. What the Tribunal failed to do was address the entirety of the question to which the application of the exclusion in s 5A(1), when read with s 5B, gave rise.
[41] As noted earlier, in Dr Lim’s case, there was no dispute that the relevant adjustment disorder (being an ailment as defined in s 5B(1)(a)) was contributed to, to a significant degree, by Dr Lim’s employment by ACMA. Put another way, as in Ms Martin’s case, only employment-related factors were identified as contributing to Dr Lim’s ailment. In this circumstance, applying Comcare v Martin, to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken.
Applying Lim and Martin the Tribunal takes into account Ms Wiggins’ evidence that she had consulted a doctor on 3 February 2014 suffering from stress, but was not diagnosed as suffering from a disease or injury prior to 21 February 2014 as she had no incapacity for work or impairment and had no diagnosable condition. This is supported by the medical evidence. The Tribunal finds that Ms Wiggins would not have suffered the chronic adjustment disorder with depressed and anxious mood with features of traumatisation if the counselling meeting on 21 February 2014 had not taken place.
Did the counselling meeting constitute reasonable administrative action?
It was not controversial that the counselling meeting constituted administrative action within the meaning of the SRC Act. In considering whether it was reasonable to conduct the counselling meeting, the Tribunal accepts that after conducting relevant inquiries Mr Withers formed the view that Ms Wiggins had been making inappropriate contact with the SOS and that this contact was beyond her scope of responsibility. The Tribunal also accepts that he was annoyed with Ms Wiggins’ actions and, after addressing the team meeting, decided to discuss the matter privately with Ms Wiggins. The Tribunal finds that, in the circumstances, the decision to conduct the counselling meeting constituted reasonable administrative action as defined in s 5A(2)(b) of the SRC Act.
Was the reasonable administrative action taken in a reasonable manner?
In Comcare v Martinez (No 2) (2013) 212 FCR 272 the Federal Court considered the circumstances in which an administrative action is taken in a reasonable manner for the purposes of s 5A of the SRC Act. Robertson J said at 290 - 291:
It will be recalled that the Tribunal said that the [Comcare guideline on bullying] said that “whether intended or not if, objectively, the effect of action by a supervisor is to humiliate, offend or distress an employee and that this ‘should reasonably have been expected’, it amounts to bullying” and to bully someone is not to conduct administrative action in a reasonable manner.
However, in my opinion, the impact on the employee cannot of or by itself establish whether or not administrative action was taken in a reasonable manner within the meaning of s 5A(1) …
It is necessary to consider the context of the counselling meeting. Ms Wiggins had been assessed as suitable for deployment overseas, yet from the time of her arrival in PNG there had been negative attitudes towards her. For instance, Mr Alan Scott gave evidence that he was annoyed by her use of her mobile phone at the initial briefing, for which she apologised. He said that almost the entire IDG described her as difficult and infamous, and he had discussed with Mr Withers particular issues she would bring to the Mission, although he admitted that he had no knowledge of any wrongdoing by Ms Wiggins. This unfavourable impression of Ms Wiggins was conveyed to Mr Withers, who gave evidence that Mr Alan Scott had told him that Ms Wiggins had a history of being difficult in other missions and a reputation for being difficult to manage. This appears to be based on Ms Wiggins’ complaint about a colleague during her deployment to Timor Leste, which to Ms Wiggins’ knowledge remained unresolved, but which appears to have led to ostracism by other members of her team.
This treatment of Ms Wiggins is consistent with her evidence that she felt singled out by Mr Withers for criticism over issues such as the use of her mobile phone and her wish to be addressed by her preferred name. It is also consistent with her evidence that she believed she was isolated within the team and therefore did not wish to join in team-building activities in her spare time or to socialise closely with most team members.
It is also important to consider the context of Mr Withers’ position. Mr Withers’ viewpoint and course of action was informed by extensive experience leading policing operations in extremely dangerous areas. The Tribunal accepts that his leadership position in PNG was a particularly difficult one, for a number of reasons. These include the diplomatic and policy concerns underpinning the deployment, the dangerous environment in which the team was operating and the fact that they were operating without accoutrements, meaning they were in effect unarmed.
The Tribunal accepts that the team was operating in circumstances which were different from domestic policing, and that therefore Mr Withers was required to view the operational integrity, discipline and communication of his team as paramount. It may also have placed him in a position where he would be required to make quick decisions and exercise a wider discretion in dealing with matters concerning his team than would normally take place. In such a context, there will be a lower threshold at which it will be reasonable to take administrative action, and a wider scope of actions that may be considered reasonable, Further, the circumstances may make it reasonable for supervisors to conduct themselves in a way that would not be reasonable in a less dangerous or less disciplined setting. The circumstances do not, however, excuse supervising and commanding officers from conducting themselves reasonably within the circumstances they are faced with.

In respect of the SOS issue, the Tribunal accepts Ms Wiggins’ evidence that she had been approached by Ms Pinder of the PNG Police regarding concerns about forms to be completed in respect of an external provider, and that Ms Wiggins had given the form to appropriate AFP officers for their consideration but was not otherwise involved in the matter. Separately Ms Pinder told Ms Wiggins that she had received a text message from Michelle regarding the SOPs for the SOS. As the issue was raised initially by Ms Wiggins, the Tribunal accepts her evidence concerning the contents of the text message rather than the understanding by Mr Withers that it was a telephone call and that it referred to the duties of a constable.
In any event, the Tribunal accepts that Ms Wiggins approached Mr Withers on 18 February 2014 because she believed that the SOPs were important documents and it was not necessarily good practice for such documents to be requested by text message and by a junior officer. The Tribunal accepts that Ms Wiggins’ actions in alerting Mr Withers to the text message were appropriate as he was her immediate supervisor. Similarly the Tribunal accepts Ms Wiggins’ evidence that she did not know at first whether Michelle was Ms Hunter or Ms Harris, but later realised that it was Ms Harris.
From the evidence, the Tribunal finds that, although Mr Withers was entitled to make further inquiries about the concerns raised by Ms Wiggins, he appears to have misunderstood the issues and he assumed that that the matter involved an inappropriate question asked by an Australian police officer about the duties of a constable in a PNG squad. He admitted that he became suspicious of the motives behind Ms Wiggins’ actions and he drew the incorrect conclusion that Ms Wiggins was interfering with the duties of Ms Harris. His suspicions were confirmed in his mind when he spoke to Ms Harris, who advised him of a falling-out with Ms Wiggins on a previous deployment. This led to Mr Withers’ concern, presumably based on information from Ms Harris, that Ms Wiggins had been providing advice to the SOS that may have hindered the CID and Ms Harris by deliberately undermining Ms Harris and using contacts with the SOS to drive a wedge between herself and Ms Harris. This appears to have been the only line of inquiry pursued by Mr Withers.
The Tribunal is satisfied that before the counselling meeting, Mr Withers had made up his mind that Ms Wiggins’ motivations and conduct were of great concern and that she needed to be dealt with accordingly, even though his inquiries were based on incorrect assumptions. This is the context within which the team meeting on 21 February 2014 was conducted.
Mr Seager‘s evidence was that he travelled to the meeting with Mr Withers and that Mr Withers told him that he was extremely angry about a matter that had been brought to his attention. Mr Withers said that he did not recall the conversation or whether he travelled to the meeting with Mr Seager, but did not deny it.
The Tribunal accepts Mr Seager’s account, which is consistent with his evidence that he partnered Mr Withers on that day and this was the reason for him to wait outside the office for Mr Withers during the counselling meeting. The Tribunal also accepts Mr Seager’s evidence that at the team meeting Mr Withers was angry about what Mr Withers described as undermining of the SOS by the team and told the team members that it was to cease. This is consistent with Ms Wiggins’ evidence and was not denied by Mr Withers, who merely stated that he did not recall.
Ms Wiggins was given no prior notice of the counselling meeting, but was told in front of her colleagues at the conclusion of the team meeting that she was required to attend immediately. She was not informed of the purpose of the meeting and was not invited to nominate a support person, even though Mr Seager and Mr Kay-Clough were waiting nearby on that day as they were the partners of Mr Withers and Ms Wiggins respectively. There was no agenda and no notes were taken at the meeting.
By his own evidence that the issue had to be nipped in the bud immediately, Mr Withers had concluded before the counselling meeting that Ms Wiggins had been deliberately undermining Ms Harris and the SOS, even though that conclusion was not soundly-based and there were a number of other possibilities that did not involve any wrong-doing by Ms Wiggins. The Tribunal finds that this alleged misconduct was the purpose of the meeting, rather than general issues of Ms Wiggins’ work performance which had been addressed on 31 January 2014 and 4 February 2014.
Mr Withers had been angry during the team meeting and immediately prior to the counselling meeting, and had formed an adverse conclusion about Ms Wiggins because of his perception that she was difficult; her reputation conveyed by Mr Alan Scott and others; and his conversation with Ms Harris. Mr Withers clearly considered the matter to be a serious disciplinary issue because on his evidence he told Ms Wiggins that he would be raising the matter with the Superintendents at the earliest opportunity. Mr Withers agreed that during the counselling meeting he told Ms Wiggins to stop playing games because of her actions regarding contact with the SOS.
The Tribunal considers Ms Wiggins to be a credible witness who gave evidence in a forthright and open manner, admitting her weaknesses and mistakes. She acknowledged that her use of the mobile phone may have been inappropriate at times, and she had endeavoured to comply more fully with her report-writing obligations. At the pre-arranged meeting on 31 January 2014 with Mr Withers, she accepted constructive advice and resolved to improve her performance. The meeting was conducted in a positive manner, and she felt more able to approach him. Mr Withers agreed in his evidence that the meeting was constructive, as was the meeting on 4 February 2014 to discuss Ms Wiggins’ PDA.
Mr Withers is an experienced police officer who had served in a number of overseas deployments. However from his evidence the Tribunal concludes that he accepted from Mr Alan Scott and others that Ms Wiggins was a difficult person to manage, based on her reputation. Elements of his evidence were inconsistent, such as when he said at the hearing that he stood Ms Wiggins down at the end of the counselling meeting, while in his written statement he said that he suggested that Ms Wiggins take an early lunch break until a pre-organised team meeting at 1pm that day.
Ms Wiggins’ version of the conduct of the counselling meeting was plausible and was consistent with accounts given to medical practitioners and others, including Ms Apostolopoulos, Ms Harraway, Mr Seager and Mr Kappel. The absence of any other witnesses means that it is difficult to determine with certainty what took place during the meeting. Nevertheless, the Tribunal prefers Ms Wiggins’ evidence to that of Mr Withers, whose demeanour at the counselling meeting followed his angry disposition during the team meeting. The Tribunal finds that the events occurred as described by Ms Wiggins.
The Tribunal finds that Mr Withers addressed Ms Wiggins in a raised voice and made accusations of misconduct against her, leading to Ms Wiggins becoming more and more upset and distraught, with the threat of escalation to the Superintendents being particularly worrying and causing her to cry. This is consistent with the evidence from Mr Malcolm Scott, who heard Ms Wiggins say I’m not lying to you in a louder than normal volume and who noted the level of tension in the office, and with Mr Withers’ evidence that Ms Wiggins was becoming increasingly upset as the meeting progressed.
The Tribunal finds that Mr Withers was unhappy with Ms Wiggins and had made up his mind that she had engaged in misconduct in her dealings with the SOS. He was angry before and during the team meeting on 21 February 2014 and singled her out for a one-on-one meeting with her to voice his displeasure. Instead of being a counselling session, the meeting became a form of disciplinary session where Mr Withers had already decided that Ms Wiggins was guilty of intentionally engaging in misconduct, and was aggressive in berating her and criticising her. As observed by the Tribunal in Re Beasley and Comcare (2012) 130 ALD 330, reasonable action does not have to be perfect, however as observed must be tolerable and fair.
Mr Withers intimidated Ms Wiggins, causing trauma that led to her psychological condition. Mr Withers should have afforded her fairness by informing her of the matters to be discussed; allowing her a proper opportunity to respond to the allegations; taking notes of the meeting and presenting them to her afterwards; and conducting the meeting in a calm and non-threatening manner. It would have been a straightforward matter for Mr Withers to have indicated that he wanted to speak to Ms Wiggins about her dealings with the SOS and offer to discuss it then or at a later time, to have asked her for her version of events during the meeting, and to have made even brief notes and presented them to her. It would also have been useful for both parties if Ms Wiggins had been allowed to have a support person at the meeting which may have resulted in the meeting being conducted differently. These steps would, in the Tribunal’s view, been practical and reasonable ways to conduct the meeting.
Even if the meeting was intended to be a counselling session where prior notice and the presence of a support person were not necessary, the intimidating behaviour and demeanour exhibited by Mr Withers towards Ms Wiggins would be characterised as conduct that was not taken in a reasonable manner.
CONCLUSION
For these reasons the Tribunal concludes that the reasonable administrative action in the form of the counselling meeting was not taken in a reasonable manner in respect of Ms Wiggins’ employment. Consequently the exclusion in s 5A(1) of the SRC Act does not apply, and Ms Wiggins’ chronic adjustment disorder with depressed and anxious mood with features of traumatisation comes within the definition of injury in the SRC Act, and she is entitled to compensation. The Tribunal believes that an award of costs to Ms Wiggins is appropriate.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that:
(1)Ms Wiggins suffered an injury, namely chronic adjustment disorder with depressed and anxious mood with features of traumatisation on 3 March 2014 and is entitled to compensation under the provisions of the Safety, Compensation and Rehabilitation Act 1988 (the SRC Act).
(2)Comcare shall pay Ms Wiggins’ costs and disbursements pursuant to s 67 of the SRC Act.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

....................................[sgd]....................................
Associate
Dated: 31 May 2017

Date(s) of hearing: 12, 13 & 14 April, 2 - 5 August and 7 October 2016

Counsel for the Applicant: Ms Cassie Serpell

Solicitors for the Applicant: Angela Sdrinis Legal

Counsel for the Respondent: Mr John Wallace

Solicitors for the Respondent: Australian Government Solicitor

[2017] AATA 785

31 May 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Procedural Fairness

Remedies

Costs

Date(s) of hearing:	12, 13 & 14 April, 2 - 5 August and 7 October 2016
Counsel for the Applicant:	Ms Cassie Serpell
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Australian Government Solicitor