Williams and Australian Postal Corporation

[2006] AATA 695

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 695

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/559

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SHIRLEY WILLIAMS

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date11 August 2006

PlaceSydney

Decision The decision under review is affirmed

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

Ms N Bell
  Senior Member 

COMPENSATION – Depressive Condition – Liability Accepted for Aggravation – Claim for Compensation Relating to Further Aggravation – Further Incident Found to be Aggravation of Condition – Tribunal Found Aggravation Arose Out of Applicant’s Failure to Receive a Benefit – Overtime – Applicant Does Not Meet Definition of Injury – Decision Under Review Affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

11 August 2006 Ms N Bell, Senior Member

1.               Mrs Shirley Williams began working with Australia Post in 1994.  In the late 1990’s she developed depression and obtained private treatment for the condition.  In June 2004 she made a claim for compensation following incidents at work that had exacerbated her condition.  Liability was accepted by Australia Post for “limited aggravation of depressive disorder”.  Mrs Williams returned to work and proceeded as best she could with her condition, “keeping her head down” and concentrating on building her house with her husband who also worked at the Mail Centre.

2.               The weeks leading up to Christmas are a busy time at Australia Post.  It is common ground that Mrs Williams, sometime between 5:00 am and 6:00 am on 20 December 2004, was towards the end of her shift and working on overtime.  She and her colleagues were working to meet the usual deadline of having mail sorted in time to meet the delivery truck at 6:00 am.  In Mrs Williams’ opinion, she and her colleagues were on track to meet the deadline.  However, an Australia Post Delivery Manager, Graeme Hislop, thought otherwise and marshalled a number of “Christmas casuals” to move into Mrs Williams’ work area and complete the task.  Mrs Williams objected to this, had a heated discussion with Mr Hislop and left the site.  She returned to work the next evening and had a further discussion with the Mail Centre Manager, Wayne Robinson, became distressed and again left the site.  She has not returned to work and retired on medical grounds on 22 April 2005.  Mrs Williams contends that her pre-existing psychiatric condition was further aggravated by these incidents. 

3.               Australia Post contends that if there was aggravation it was of a temporary nature and that, in any event, an exclusion in the Safety, Rehabilitation and Compensation Act 1988 (the Act), relating to employment benefits exempts Australia Post from liability.

issues

4.               Section 14 of the Act provides that Australia Post is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity or impairment.  Section 4 of the Act defines “injury” to include a disease, injury or aggravation of an injury arising out of, or in the course of, employment. However, section 4 specifically excludes any such disease, injury or aggravation suffered as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.  Australia Post contends that the incident complained of by Ms Williams amounted to a failure by her to obtain a benefit and that it is therefore excluded from the definition of an “injury” under the Act.  The benefit in question, says Australia Post, was overtime.

5.               The following issues arise for me to determine:

·Was Mrs Williams’ psychiatric condition aggravated by the December 2004 incident?

·If so, was there a failure by Mrs Williams to obtain a benefit in connection with her employment?

·If so, whether any aggravation of her psychiatric condition was suffered as a result?

·If not, what was the duration of the aggravation?

6.               First, however, it is necessary to determine what happened on 19 and 20 December 2004.

the incident

7.               Mrs Williams’ evidence was that on Sunday 19 December 2004 she returned to work at 7.00 pm having been on sick leave for a gallbladder operation.  She said the amount of time she worked would vary, but Sunday night was generally the longest shift and, being close to Christmas, it was a very busy time.  She said by 4:30 am her usual team members, Gavin Wharby, Jennifer Hughes and a casual called David were there together with a postman called Phil.   Their “commitment” was to meet the mail truck (at 6:00 am).

8.               Mrs Williams said that, just after 5:00 am, they had only a couple of trays of small letters left to sort.  She said Gavin needed to get to his frame to finish the large letters but could not because some “Christmas casuals” had arrived, led by Delivery Centre Manager Graeme Hislop, and were in the way.  Mrs Williams said “It’s not right”, referring to the use of casuals when, she considered, they were not needed.  She said that, when the casuals arrived, she was on overtime and expected to work another 30 minutes of overtime.

9.               She left work and tried to contact Wayne Robinson, the Manager of the Mail Centre, on her way home but said she could not get through to him.  She said she was very upset at home and eventually made contact with Wayne Robinson at about 5:00 pm.  He told her to come to work and he would “sort it out”.

10.              Mrs Williams said she had left because Graeme Hislop had ignored her, was rude to her and made her feel stupid.  In her statement, annexed to her claim for compensation, she said he spoke to her in a way that “made (her) feel like an idiot in front of the casual staff”.  Mrs Williams said she was “standing up for her conditions”.  She agreed she raised her voice, but said she was not very loud.  She later agreed she had become “louder and louder” as Mr Hislop moved away.  She agreed she was angry.

11.              Mrs Williams referred to a meeting with Mr Robinson in November 2004 at which he reached an agreement with staff about the use of casuals.  She said she was not upset about money or about overtime but it was “about a principle and about (Robinson) promising one thing and doing another”.

12.              Mrs Williams said she went back to work on the evening of 20 December and at 10:30 pm she had a meeting with Wayne Robinson who, she said,  agreed that casuals would only be used when operational standards could not be otherwise met.  She said at the end of the meeting, which had included other staff as well, he asked her to stay behind and, waiving a piece of paper at her, told her Graeme Hislop wanted her to be counselled for not showing courtesy and for raising her voice.  According to Mrs Williams, Mr Robinson also told her that when she is upset she should just walk away and then contact him.  He also told her that he would not make it a formal disciplinary matter and he was free to handle it informally.  Mrs Williams was upset by her meeting with Mr Robinson and asked her husband, who also works at the Mail Centre, to take her home.  She agreed that, as she left the facility, she raised her middle finger in a rude gesture to “no-one in particular”.

13.              Wayne Robinson said the agreement reached with staff after 4 consultations over the course of the year was that Christmas casuals would not be used to take overtime from permanent staff as long as operating standards were being met.  He said a relevant operating standard was to have the mail sorted and ready for the truck by 6:00 am.  He said the decision as to whether the standard could be met at any time was to be made by Team Leaders and, in the early hours of 20 December 2004, such a decision was in fact made by Graeme Hislop.

14.              Mr Robinson described Mrs Williams as having been the Authorised Union Representative for some time and said he had had no problems with her except that there were some difficulties in relation to part time and casual staff in that she thought work was being given to those staff at the expense of full time employees’ overtime.

15.              He said Mrs Williams’ normal start time was 9:30 pm but on 18 December she had asked him for extra time because she and her husband were building a house and needed the money.  He said he arranged for Mrs Williams and her husband to start early on 19 December so they could earn some extra money.  He said, generally, Mrs Williams took all the overtime she could get.  Mr Robinson added that he was happy to give overtime to those employees who wanted it.

16.              Mr Robinson said that, when he arrived at work on the evening of 20 December, Mr Hislop and one of the casuals told him about the incident in the previous day’s shift.  He obtained a statement from Mr Hislop and from one of the casuals, a Mr Robertson.  Mr Robinson said he discussed the matter with the Area Manager, Mr Quail who, with him, was aware of Mrs Williams’ existing psychiatric condition.  Between them it was decided to deal with the matter informally rather than through the formal disciplinary procedure.  Mr Robinson denied telling Mrs Williams she would be “counselled” or shaking a paper in front of her.  He said he had thought the conversation with Mrs Williams was going well until she suddenly “lost it” and said he was taking overtime from full time employees and stormed out.

17.              Mr Robinson said Mr Williams came to his office and told him his wife was in the car park and asked him to go and see her.  He did so and asked her to come back to work so he would be able to keep it “in house” and would not have to discuss the matter with the Area Manager.

18.              Mr Robinson allowed that Mr Hislop may have overestimated the time required to meet the 6:00 am deadline but said it is still up to team leaders and management to make that decision and was not a matter for staff to decide.

19.              The T Documents contain an email to Mr Robinson from Graeme Hislop dated 20 December 2004.  The email advised that he moved into Mrs Williams’ work area at approximately 5:20 am with two Christmas casuals and it took the three of them approximately 15 minutes to make the mail ready for despatch.  He described Mrs Williams as having become enraged, claiming that Christmas casuals were taking her overtime, and that she ceased work, watched and did not assist.

20.              Glenn Robertson was employed as a Christmas casual at the Mail Centre in December 2004 and was one of the casuals accompanying Mr Hislop when he entered Mrs Williams’ work area on 20 December.  He said that, while doing the work he had been requested to do, Mrs Williams made a number of comments to Mr Hislop, in a “nasty” manner, about Christmas casuals taking away overtime.  He said she had direct eye contact with him while making her comments.  He said he had moved into the work area at about 5:10 am and recalled the work had been completed some time between 5:30 and 6:00 am.

21.              Bruce Williams, Mrs Williams’ husband, said his wife came to him at work on the evening of 20 December 2004 very upset because of a meeting she had just had about the use of Christmas casuals.    She told him she wanted to go home and left the facility to go to their car.  He said that, as he was walking out to the car to drive her home, Mr Robinson told him “Everything’s alright.  If we get the union involved it will all fall on Shirley’s head.”

22.              In cross examination Mr Williams said Mr Robinson told him his wife was to be counselled.  He said he suggested he call the Union and Mr Robinson then said that if Mrs Williams “goes public” he would have to “bring in the Code of Ethics”.

23.              Robert Potter, a senior manager with Australia Post who formerly worked at the Mail Centre, visited his former colleagues on 20 December 2004.  He arrived at the Mail Centre at about 4:30 am.  He said that, at about 5:30 – 5:40 am, other sections of the Centre had loaded and Mr Hislop organised some casuals to assist in the clearing down of Mrs Williams’ section.  Mr Potter joined in the work and said he heard an outburst from Mrs Williams to the following effect: “What are the Christmas casuals doing here – they’re taking my overtime?”

24.              Gavin Wharby, a full time employee, gave evidence of Mr Hislop coming in to the area he shared with Mrs Williams and others.  He said he had to leave because Mr Hislop and the casuals were at the large letter frame and there was nowhere for him to sit.  He left, he said, some time between 5:00 and 6:00 am, his usual finishing time being 5:21 am.  He said the job had not yet been completed when he left but he had nowhere to sit.  He felt sure the 6:00 am deadline would have been met without resort to the casuals.  He noted the deadline had only been missed 3 times this year.

25.              David Langthorne, a casual employee of Australia Post in December 2004, said he recalled Mr Wharby had left about 5 or 10 minutes after Mr Hislop and the casuals had arrived.

26.              I find, on the basis of Mrs Williams’ reported statements on 19 and 20 December 2004 and her historical concerns as a union representative and otherwise, about overtime, that she was concerned with the question of overtime, as a general industrial issue and in terms of her own entitlements and financial needs.  I also find that the intervention of Mr Hislop and 2 casual staff on the morning of 20 December 2004 had the effect of circumscribing her overtime and she was angered by this (“You’re taking away my overtime”).   I find that Mrs Williams’ reaction to Mr Hislop’s decision was to challenge it, on the basis that the decision cut short her opportunity to complete more overtime, and that Mr Hislop proceeded to implement his decision regardless of the views expressed by her.

27.              I consider it irrelevant whether Mr Hislop’s decision to intervene was correct or in breach of the agreement that had been negotiated.  The decision was his to make and the issues for me to consider do not require me to look behind the decision. 

28.              I find that Mrs Williams, although very upset by the events of the previous evening, returned to work the next day after being encouraged to do so by Mr Robinson who reassured her that he would “sort out” the overtime issue.  I find the meeting between Mrs Williams and Mr Robinson the next day, upset Mrs Williams because it placed her in the wrong for reacting as she had done to Mr Hislop’s decision to intervene and cut short her overtime.

was mrs williams’ condition aggravated by her work?

29.              I do not take Australia Post to be arguing there was no aggravation of Mrs Williams’ psychiatric condition after the incident on 19 December 2004.   Rather, on this point it disputes the extended duration of the aggravation.

30.              Mrs Williams’ treating Psychiatrist, Dr Butler, diagnosed Chronic Adjustment Disorder with depression and anxiety.  He considered that she continues to suffer from the effects of the incident in December 2004, among others, at her workplace.  By contrast, Dr Stephenson, Psychiatrist, who examined and reported on Mrs Williams at the request of her solicitors, diagnosed Major Depression, initially occurring in 1997/98 and exacerbated in late 2003 and late 2004 by incidents at work.   Dr Walden, Consultant Psychiatrist, qualified by Australia Post, diagnosed Major Depressive Disorder, originating in 1995/96 with transient exacerbations arising out of work related issues, including the incident in December 2004.  She considered the incident aggravated Mrs Williams’ underlying disorder but that the aggravation has since ceased.

31.              On the basis of this evidence I find Mrs Williams suffered an aggravation of her pre-existing psychiatric disorder because of the incident at work in December 2004.

was there a failure by mrs williams to obtain a benefit in connection with her employment?

32.              Mr Godwin, for Mrs Williams, submitted that it was her meeting with Mr Robinson on 20 December 2004 that aggravated her condition – not the incident with Mr Hislop on the 19 December shift.  In the alternative, he submitted that, if it was the exchange with Mr Hislop that caused the aggravation, it was the way he treated her that caused her distress – not the loss of money from overtime.  Mr Godwin also submitted that no overtime was lost by Mrs Williams in any event because she simply chose to leave when she did and no-one instructed her to cease working.  Further, he submitted, no overtime would have been lost by Mrs Williams, had she stayed, because both Mr Warby and Ms Hughes left soon after the two extra staff joined the team and so the staff numbers were unchanged.

33.              Mr Godwin also submitted that, as it was merely Mrs Williams’ perception that she was losing overtime, this attracts the application of the Tribunal’s decision in Ilian v Comcare [2006] AATA 148 to the effect that the exclusion applies only where there has in fact been a failure to obtain a benefit – not a mere perception.  Finally, Mr Godwin submitted that it was the loss of an existing benefit that Mrs Williams complained of; she would have had the overtime had the casuals not started work in the area.  He cited Ilian as authority for the proposition that a failure to be placed in one’s former position and be allocated one’s former duties does not amount to a failure to obtain a benefit and submitted Mrs Williams’ circumstances were analogous.

34.              I am not persuaded by these submissions.  The loss of overtime was a recurrent theme in Mrs Williams’ statements, evidence and communications surrounding the incident.  Her exchange with Mr Hislop and her meeting with Mr Robinson the following day are tied.  Both arose out of Mrs Williams’ overriding concern with her and others’ access to overtime.  This overriding concern is emphasised by the history of sensitivity to the issue in that workplace, as an authorised union representative, and by Mrs Williams’ particular concern, at that time, about money because she was building a house.

35.              Questions of choice do not arise.  The intervention of Mr Hislop and the casual staff meant Mrs Williams and her team had less overtime, even if only by some minutes.  That was the basis of her protest – a real and not imagined or merely perceived consequence of Mr Hislop’s intervention.  Mr Godwin’s submission that Mrs Williams lost no overtime because staff numbers remained unchanged, fails to take account of the evidence of Mr Hislop and Mr Robertson that it was Mr Hislop and two casuals who stepped into the work area.  I also note and accept Mr Potter’s evidence that he assisted as well.

36.              Mr Godwin’s final submission, that the overtime of concern to Mrs Williams was a benefit already conferred by prior agreement and, therefore, its loss does not amount to a “failure to obtain” a benefit, is unconvincing.  The overtime in question was prospective and, according to the relevant agreement, was subject to operational standards being met.  The circumstances of Mrs Williams’ case are distinguishable from those in Ilian.

37.              There was a failure, by Mrs Williams, to obtain a benefit.  The benefit was overtime.

was the aggravation of mrs williams’ psychiatric condition suffered as a result of the failure to obtain a benefit?

38.              Mr Godwin, on Mrs Williams’ behalf, sought to make a distinction between the decision made by Mr Hislop to intervene (and so to circumscribe Mrs Williams’ overtime) and the way in which he spoke to her or treated her when she objected to his decision.  I do not think the distinction is easily made.   The decision itself and the way in which it was, moments later, implemented by Mr Hislop are not clearly distinct or separate.  I am mindful of the distinction that was sought to be made in Hart v Comcare [2005] FCAFC 16 between the process leading up to a decision about a promotion and the decision itself. I do not think a similar distinction can be made here. The implementation of the decision could not take place without the decision having first been made. They are causally, and in this case closely temporally, linked. In any event, there is no evidence before me to suggest that Mrs Williams, with her sensitivity to the question of her overtime, would have been differently affected by the decision if it had been implemented or communicated to her in a different manner.

39.              I find that Mrs Williams’ pre-existing psychiatric condition was aggravated by the incident, that incident being a failure by her to obtain a benefit.

40.               It follows that the exclusion in the definition, in the Act, of “injury” applies and so she must be taken not to have suffered an injury within the meaning of the Act.

decision

41.              The decision under review is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         .............[Linda Blue]...........................................
  Associate

Dates of Hearing  8, 9, 13 June  2006
Date of Decision  11 August 2006
Counsel for the Applicant         Mr D Godwin
Solicitor for the Applicant          CBD Lawyers
Counsel for the Respondent     Miss R Henderson
Solicitor for the Respondent     Graham Jones Lawyers