Woodward and Comcare (Compensation)
[2018] AATA 1835
•14 June 2018
Woodward and Comcare (Compensation) [2018] AATA 1835 (14 June 2018)
Division:GENERAL DIVISION
File Number: 2016/5834
Re:Melissa Woodward
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:14 June 2018
Place:Brisbane
The Tribunal affirms the reviewable decision made by Comcare on 27 October 2016.
.........................[Sgd]...............................................
Member D K Grigg
Catchwords
COMPENSATION — Commonwealth employees - whether applicant entitled to compensation – whether injury contributed to by employee’s employment – whether injury suffered as a result of reasonable administrative action undertaken in a reasonable manner - decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29
Comcare and Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Ferguson v Commonwealth Bank of Australia [2012] AATA 718
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42
Lim v Comcare [2017] FCAFC 64
Radulovic and Comcare [2010] AATA 777
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Member D K Grigg
14 June 2018
INTRODUCTION & CLAIMS HISTORY
Ms Woodward has been an employee of the Department of Human Services (“DHS”) since 2010. In June 2015, at Ms Woodward’s request, Ms Woodward was transferred from a Coffs Harbour Service Centre to a Gold Coast Centre and commenced as a Customer Service Officer (“CSO”) at the Beenleigh Customer Service Centre (“BCSC”).[1]
[1] Exhibit 2, T Documents, T5, page 19, Ms Woodward’s Workers’ Compensation Claim Form dated 20 June 2016.
Ms Woodward commenced at BCSC on 29 June 2015 and between 21 September 2015 and 22 December 2015, worked in the South Queensland Virtual Team.[2] Ms Woodward’s role involves:
“…undertaking face-to-face customer interaction / service tasks for the majority of her work day including both: 1:1 interviews with customers and front-of-house functions. The role also combines phone contact with customers and relevant administrative / processing duties”.[3]
[2] Exhibit 2, T Documents, T12.2, pages 53-59, Statement of Mrs Luccitti dated 12 July 2016, para 4.
[3] Exhibit 2, T Documents, T4, page 10, Initial Assessment Report dated 16 June 2016.
Prior to transferring to BCSC, Ms Woodward was employed as an APS 4 customer service officer (“CSO”) in the Coffs Harbour Service Centre and assisted customers over the telephone, as opposed to face-to-face, with disabilities and carer’s enquiries.[4]
[4] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
On 20 June 2016, Ms Woodward applied for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for “Adjustment Disorder (Anxiety + Depression)” which she claims resulted from a “[l]ack of training + increase in work rolls” (sic).[5] Ms Woodward claims that the lack of training and increased work duties resulted in her experiencing “high anxiety, panic attacks [and] tears” and that she first noticed these symptoms on 22 February 2016 (“Compensation Claim”).[6]
[5] Exhibit 2, T Documents, T5, pages 14-19, Ms Woodward’s Workers’ Compensation Claim Form dated 20 June
2016.
[6] Exhibit 2, T Documents, T5, pages 14-19, Ms Woodward’s Workers’ Compensation Claim Form dated 20 June
2016.
On 7 September 2016, following an investigation which involved Ms Woodward being reviewed by a Psychiatrist, Dr BradleyNg and employer statements being obtained, a delegate recommended that Ms Woodward be denied compensation under the Act, on the basis that the injury suffered by Ms Woodward arose “as a result of reasonable administrative action taken in a reasonable manner in respect of [her] employment”.[7] As a result of that recommendation, Ms Woodward’s claim for compensation was denied by Comcare on 9 September 2016.[8]
[7] Exhibit 2, T Documents, T14, pages 246-253, Recommendation by delegate including reasons dated 7
September 2016; s 5A, the Act.
[8] Exhibit 2, T Documents, T15, pages 254-255, Determination by authorised delegate dated 9 September 2016.
On 30 September 2016, Ms Woodward requested a reconsideration of the Delegate’s decision.[9]
[9] Exhibit 2, T Documents, T17, pages 259-268, Ms Woodward’s request for reconsideration dated 30 September
2016.
A further recommendation was made to affirm the delegate’s decision on 25 October 2016[10] and the decision to deny compensation was affirmed by the authorised delegate on 27 October 2016 (“Reviewable Decision”).[11]
[10] Exhibit 2, T Documents, T19, pages 270-274, Recommendation by delegate including reasons dated 25 October
2016.
[11] Exhibit 2, T Documents, T20, pages 275-278, Determination by authorised delegate dated 27 October 2016.
Ms Woodward then applied for a review of the Reviewable Decision by this Tribunal.[12]
[12] Exhibit 2, T Documents, T1, pages 1-5, Application for Review of Decision dated 31 October 2016.
LEGISLATIVE REQUIREMENTS
The right to compensation for an employee under the Act is conferred by section 14(1) which provides that 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.
(Emphasis added)
“Injury” is defined in section 5A of the Act to mean, so far as this case is concerned:
“(1) …
(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.”
(Emphasis added)
A “disease” is defined in section 5B of the Act to mean, so far as this case is concerned:
“(1) …
(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.”
(Emphasis added)
An “ailment” is defined in section 4 of the Act to mean:
“… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
(Emphasis added)
ISSUE FOR DETERMINATION
The issue for determination is whether Ms Woodward is entitled to compensation for an injury, this being, Adjustment Disorder, with anxious mood, under section 14 of the Act.[13]
[13] Exhibit 2, T Documents, T15, pages 254-255, Determination by authorised delegate dated 9 September 2016; T20, pages 275-278, Determination by authorised delegate dated 27 October 2016.
It is not in dispute that:[14]
(a)Ms Woodward was an “employee” of the Commonwealth[15];
(b)Ms Woodward suffered from a “mental ailment” or an aggravation of an ailment[16]; and
(c)Ms Woodward’s employment at the DHS significantly contributed to her ailment.
[14] Exhibit 6, Comcare’s Submissions dated 4 October 2017, para 16.
[15] s 5, the Act.
[16] Exhibit 6, Comcare’s Submissions dated 4 October 2017, para 12; see definition of “ailment” in
s 4, the Act.
Comcare contends that Ms Woodward’s disease resulted from the following actions:[17]
(a)a direction given to Ms Woodward by a supervisor on 25 January 2016 that she could not “cherry pick” (explained further below); and/or
(b)the implementation of the DHS’s requirement for Ms Woodward to attempt to perform the full scope of her duties.
[17] Comcare’s Reply to the Applicant’s Written Submissions dated 11 April 2018.
Comcare contends that these actions:
(a)are “administrative actions”, being a “counselling” action about how Ms Woodward was performing her duties under section 5A(2)(b) of the Act, and anything reasonable done in connection with the counselling action falling within section 5A(2)(e) of the Act;
(b)were taken in a reasonable manner in respect of her employment; and
therefore the exclusionary provision in section 5A(1) of the Act applies.[18]
[18] Exhibit 3, Comcare’s Statement of Issues, Facts and Contentions dated 14 July 2017.
If the exclusionary provision applies, Ms Woodward’s ailment would not be an “injury”[19] for the purposes of the Act and she would not be entitled to compensation under section
14 of the Act.[19] S 5B, the Act.
Therefore, a consideration of whether Ms Woodward is entitled to compensation under section 14 of the Act involves determining whether the disease she suffered was as a result of reasonable administrative action taken in a reasonable manner in respect of [her] employment.
WHAT HAPPENED
On 22 May 2015, Ms Woodward emailed the BCSC Manager, Ms Tania O’Shea, requesting a transfer from the Coffs Harbour Service Centre to BCSC. Ms Woodward’s email to Ms O’Shea contained the following relevant information:[20]
“My name is Melissa Woodward & I am contacting…in regards to a transfer to your site.
…
I am a specialist service officer at the Coffs Harbour Smart Centre. I have been working here for the past 5 years, and am trained in Complex DSP, RET (self-trained), RCA, OSS, AGDRP & all phases of the general layer. As well as OADC Processing. [21]
I would love to take on any new work and easily adapt to new challenges and am a quick efficient learner. I want to broaden my career opportunities within Centrelink & am happy to take on any work needed at your site.
…
Below is a list of my experience, skills and attributes I could bring to your site.
…
·Appropriate technical knowledge and expertise. I have the ability to self-manage, get on with the job & find answers quickly[.]”
[20] Exhibit 8, Statement of Ms Vickery dated 10 November 2017, para 3, Annexure A, Email from Ms Woodward to
Ms O’Shea dated 22 May 2015.
[21] Ms Woodward explained the terminology used in the email at the hearing as follows: “DSP” means “Disability
Support Pension”, “RET” means “Retirements”, “RCA” means “Residential Care Assessment”, “OSS” means “Online Support Services”, “AGDRP” means “Australian Government Recovery Payment”, “all phases” referred to her having had 4 weeks of training, “general layer” means “general questions”, “OADC” means “Older Australian Disability Cases”.
Ms O’Shea responded to Ms Woodward’s request for a transfer on 27 May 2015 and asked her to liaise with Ms Erin Vickery who would be Acting Manager of the BCSC while she was away.[22] As Acting Manager, all transfer requests were decided by Ms Vickery.[23] Ms Vickery states that before agreeing to Ms Woodward’s request for a transfer she spoke to Ms Woodward’s Manager at Coffs Harbour. Ms Vickery states that she does not recall being told that Ms Woodward had any limitations with respect to which customer payment types Ms Woodward could deal with.[24]
[22] Exhibit 8, Statement of Ms Vickery dated 10 November 2017, para 3, Annexure A, Email from Ms Woodward to
Ms O’Shea dated 22 May 2015.
[23] Exhibit 8, Statement of Ms Vickery dated 10 November 2017, para 4.
[24] Exhibit 8, Statement of Ms Vickery dated 10 November 2017, para 5.
At the hearing Ms Woodward said that at her interview for the position at BCSC she told the interviewers what she could and could not do and was told she was hired to do pensions. There is no verifiable or corroborating evidence of this.
On 1 June 2015, Ms Vickery emailed Ms Woodward to offer her “an APS4 CSO position” at the BCSC.[25]
[25] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure A, Email from Ms Vickery to Ms Woodward
dated 1 June 2015.
Ms Vickery states there was no verbal agreement with Ms Woodward that she was engaged to perform a limited scope of tasks compared to other APS4 CSOs, and that she would not have agreed to the transfer if Ms Woodward was not able or prepared to perform the full scope of her duties.[26] Ms Vickery also states that when Ms Woodward began at BCSC she agreed that Ms Woodward could serve pension customers, but says this was not to the exclusivity of all other payment types.[27] Ms Woodward agrees that
Ms Vickery told her she could serve pension customers.[28] Ms Vickery was not required by Ms Woodward for cross-examination and her evidence was therefore unchallenged.[26] Exhibit 8, Statement of Ms Vickery dated 10 November 2017, para 7.
[27] Exhibit 8, Statement of Ms Vickery dated 10 November 2017, para 10.
[28] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 2.
On 22 June 2015, Ms Woodward commenced in her role at BCSC and initially reported to Mr Brett Ashenden, the then temporary Team Leader, for approximately 7 weeks.[29]
[29] Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, para 2.
At Ms Woodward’s mid-cycle performance review, when she was still at Coffs Harbour, Ms Woodward indicated that she required “no additional development”. However, at her end of year review, conducted shortly after commencing at BCSC, Ms Woodward indicated that “if additional development in new learning areas is required that this is identified and requested as started new role in CSC”.[30] In the end of year review report
Ms Vickery identified some areas for development for the next year, including New Start Allowance (“NSA”) and Youth Allowance (“YAL”).[31] This indicates that Ms Woodward’s employer was content to provide her with additional training in some of the customer payment types if she needed it.[30] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure D, Individual Performance
Review completed 13 August 2015,
[31] Exhibit 8, Statement of Ms Vickery dated 10 November 2017, paras 11-13.
On 9 July 2015, Ms Woodward sent Mr Ashenden a Skype text message which said “im going to have to cherry pick im sorry im not trained in NSA or FAO [Family Related Payments]”. Ms Woodward told the Tribunal she could see that a NSA or FAO was the next customer query in line.[32] Mr Ashenden responded “thats OK, no probs at all”.[33]
Mr Ashenden states that while he was Ms Woodward’s Team Leader, he agreed that she could “cherry pick”. Mr Ashenden states that “cherry picking” is an interim measure that he sometimes permits while CSO’s build up their knowledge of topics.[34][32] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[33] Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, para 2; Exhibit 7, Applicant’s Submissions dated
12 October 2017, Annexure B, Skype messages between Mr Ashenden and Ms Woodward dated 9 July 2015.
[34] Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, para 3.
"Cherry picking” was described by Ms Leissa Smith, Team Leader at BCSC, as:[35]
“…a term that the Service Centres use to describe when a Customer Service Officer (CSO) looks through the booking system, and only chooses the customers they want to serve by topic, rather than serving customers in the order in which they arrive at the Service Centre.”
[35] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, para 4.
Ms Vickery stated that “cherry picking” is considered appropriate when a CSO first begins in a service centre and that it is expected that the CSO builds their knowledge through training and their own learning and that they move toward being able to handle all enquiries and payment types.[36] At the hearing Ms Woodward accepted it was an employee’s responsibility to learn on the job. However, she submitted that it was the employer’s responsibility to ensure new staff are given equal training to the other staff members.
[36] Exhibit 8, statement of Ms Vickery dated 10 November 2017, para 9.
Ms Amanda Mackenzie, acting Front of House Team Leader at BCSC between November 2015 and January 2016, explained the problems and issues that “cherry picking” creates as follows:[37]
“When a Customer Service Officer (CSO) is “cherry picking”, both customers and staff are impacted. Customers become more aggressive because “cherry picking” creates increased wait times and certain customers may become agitated because they have to wait longer than other customers. Further, “cherry picking” can create tension between the staff because it is not fair that some CSOs can choose topics they feel comfortable with, while other CSOs work through new or challenging topics.”
[37] Exhibit 1, statement of Ms Mackenzie dated 15 September 2017, para 4.
Mr Ashenden says that at no time did anyone, including Ms Woodward, tell him that
Ms Woodward was hired to carry out a limited scope of duties.[38] Mr Ashenden said that Ms Woodward never objected to performing duties required of her role, which were to take initial inquiries of customers, stream enquiries according to payment type and topic and play a role dealing with enquiries relating to all payment types of customers using the self-service system.[39] However, this statement is inconsistent with his evidence that within10 days of Ms Woodward’s arrival at BCSC he approved Ms Woodward’s request to “cherry pick”.[40] Mr Ashenden was clearly aware that from 9 July 2015, Ms Woodward was not performing her duties in relation to all payment types and topics and that she had raised an objection to carrying out all of her duties.[38] Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, para 4.
[39] Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, paras 7-11.
[40] Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, para 2; Exhibit 7, Applicant’s Submissions dated
12 October 2017, Annexure B, Skype messages between Mr Ashenden and Ms Woodward dated 9 July 2015; Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, para 3.
On 20 July 2015, Ms Leissa Smith became Team Leader at BCSC. Ms Smith states that no one informed her when she started that Ms Woodward was hired to carry out different duties to the other APS4 CSOs, or that her role was limited in any way.[41]
[41] Exhibit 9, Statement of Ms Smith dated 7 November 2017, para 3.
On 13 August 2015, Ms Woodward had a performance review and Ms Smith assessed
Ms Woodward’s performance as “very good”.[42] Ms Woodward noted in her review report that “if additional development in new learning areas is required this is identified and requested as started new role in CSC”.[43] Ms Smith noted:
“Mel requires development in the following
– NSA & YAL claims and access work
-Participation requirements”.[44]
This indicates that it was again agreed and acknowledged, that Ms Woodward would be provided with more training in some of the customer payment types.
[42] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 5 and Annexure D, Individual Performance
Review completed 13 August 2015, section 3.1.2.
[43] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure D, Individual Performance
Review completed 13 August 2015, section 3.3.2.
[44] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure D, Individual Performance Review
completed 13 August 2015, section 3.3.2.
Between June 2015 and September 2015, Ms Woodward only dealt with pension enquiries.[45] Then, between September 2015 and December 2015, Ms Woodward was working in a processing role processing sickness allowance claims. She returned to being a face-to-face CSO on 12 January 2016.[46]
[45] Exhibit 2, T Documents, T6, page 20, Statement and Timeline of Ms Woodward dated 8 July 2016.
[46] Exhibit 2, T Documents, T6, page 20, Statement and Timeline of Ms Woodward dated 8 July 2016.
Between November 2015 and January 2016, Ms Mackenzie was acting as Front of House Team Leader at BCSC.[47]
[47] Exhibit 1, Statement of Amanda Mackenzie dated 15 September 2017, para 2.
On 20 January 2016, Ms Mackenzie announced in the staff online chatroom that "there should not be any “Cherry Picking" [and if staff were] unsure… [they] should be utilising SNR Pracs and Access Support”.[48] Ms Woodward says this was the first date she attempted serving every customer, rather than “cherry picking” the customer payment types with whom she was familiar.[49] Ms Woodward says she asked questions via the online chat room when she was attempting to do payment types, she says she was not trained in and that she also utilised all of the resources she knew of. She further stated that no one had advised her “on what I should or shouldn't be doing upon returning to face to face customer service, after working for the virtual team in 2015”.[50]
Ms Woodward referred the Tribunal to Annexure G of her submissions, which contains excerpts from the office’s chat room on 20 January 2016, indicating that Ms Woodward was seeking assistance in relation to customer payments types she had little knowledge of:[51][48] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure G, Message from Ms Mackenzie to the team
dated 20 January 2016.
[49] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[50] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[51] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 9, Annexure G, Messages from Ms Woodward to
other team members dated 20 January 2016.
“Woodward, Mel 4:07 PM:
hey can someone tell me what i need to do when someone has a new baby? they have the FA081 do i just scan it and reassign to medicare?
Tozer, Alexandria 4:07 PM:
yeqah bring her to me
Tomaszewska, Elizabeth 4:08 PM:
yes, Mel - check if they have done claim online
Woodward, Mel 4:08 PM:
Thanks
Woodward, Mel 4:36 PM:
if someone on dsp was refered to a DES in feb 15 do they need a new esat or is that considered current?”
The day after Ms Mackenzie’s group message to not “cherry pick”, on 21 January 2016, Ms Woodward wrote to her then Team Leader, Mr Scott Jones, telling him she was “specialised in pensions and anything carers or sicky” but knew “nothing about FTB or YAL” and asked “is it ok if I cherry pick?”.[52] Ms Woodward said Mr Jones did not respond.[53] Ms Smith was on leave at this time.
[52] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure H, Email from Ms Woodward to Mr Jones
dated 21 January 2016.
[53] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 12.
Ms Mackenzie states that on or around 25 January 2016, Ms Woodward had been “cherry picking” customers based on topic and a customer had been left waiting for over an hour. Ms Mackenzie says she was aware at the time that CSOs were not meant to “cherry pick” and that while she cannot recall the occasions it happened, Ms Woodward had “cherry picked” customer queries prior to 25 January 2016.[54] Ms Mackenzie messaged
Ms Woodward and asked why she had not assisted a particular customer. The full message exchange is as follows:[55][54] Exhibit 1, Statement of Ms Mackenzie dated 15 September 2017, para 5.
[55] Exhibit 1, Statement of Ms Mackenzie dated 15 September 2017, para 5, Annexure A, email exchange
between Ms McKenzie and Ms Woodward dated 25 January 2016; Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure I, email exchange between Ms McKenzie and Ms Woodward dated 25 January 2016.
“Mackenzie, Amanda 2:57 PM:
Hi Mel
just wondering why you didn't get the cus that was going/went over the hour?
Woodward, Mel 2:57 PM:
cause i have NO idea about child carfe
care
its like a different language to me
i know were not meant to cherry pick but id just have to get someone to help me which would take 2 staff off the floor anyway
Mackenzie, Amanda 3:00 PM:
I understand what your saying and it's hard when we aren't the 'specialists in a certain area' (Which everyone has their strengths in certain payment types) but this is why we have different options such as Access Support and Senior Practitioners
Woodward, Mel 3:00 PM:
i dont even know the basics it gives me anxiety
Mackenzie, Amanda 3:01 PM:
I don't want you feeling like that...Leave it with me
Woodward, Mel 3:03 PM:
thank you
ill talk to you about it more in person but i have had compensation for anxiety/adjustment disorder for being made to do things im not trained in. erin knew about it all
Mackenzie, Amanda 3:05 PM:
No problems Mel, I'll leave it with your line manager to discuss with you... as I wasn't aware at all
Woodward, Mel 3:10 PM:
yeah thats cool i was waiting to discuss in coaching but ive never had coaching and it hasnt been a problem until now
thanks for understanding, i do the best i can
Mackenzie, Amanda 3:11 PM:
No problems I will pass this information through to one of the TL's :)
Woodward, Mel 3:11 PM:
and always happy to do training to learn new things :) :)
Woodward, Mel 3:16 PM:
im just fixing up some ID on someones record Liz brought over to me shouldnt be longer than 5 mins then tea break
Mackenzie, Amanda 3:24 PM:
Thanks Mel :)”
(Emphasis added)
Ms Mackenzie says this was the first time Ms Woodward raised any concerns regarding needing more training with her.[56]
[56] Exhibit 1, Statement of Ms Mackenzie dated 15 September 2017, para 9.
Ms Woodward says she stated in the online chat email with Ms Mackenzie, “I know were not meant to cherry pick (sic)”, because the “cherry picking” issue had been brought up in morning meetings and in the “team whiteboard chat” and that she felt forced to resort to “cherry picking” customers despite the direction not to.[57] At the hearing, Ms Woodward said generally other staff are not meant to “cherry pick” and she was the only person allowed to.[58]
[57] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 10.
[58] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
Ms Woodward says that Ms Mackenzie saying "leave it with me" was taken by her as meaning “do not cherry pick until your team leader has a discussion with you and a decision is made that you are exempt”.[59]
[59] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 13.
Following the chat exchange between Ms Woodward and Ms Mackenzie, Ms Mackenzie forwarded the chat log by email to Ms Luccitti, the BCSC Manager, and she forwarded this email to Mr Jones.[60] Ms Woodward says neither Ms Luccitti nor Mr Jones made any contact with her regarding that email.[61].
[60] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure J, Email from Ms Mackenzie to Ms Luccitti
and Mr Jones dated 25 January 2016.
[61] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 18.
Ms Woodward says that after receiving the message from Ms Mackenzie, she tried to not “cherry pick”, but sometimes continued to do so.[62]
[62] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
In February 2016, Ms Smith returned to work as Team Leader at BCSC. Ms Woodward then reported directly to her.[63]
[63] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 3.
When Ms Smith returned Ms Woodward asked her for some coaching arising out of the exchange between herself and Ms Mackenzie on 25 January 2016.[64]
[64] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 6.
On 9 February 2016, Ms Woodward had a coaching session with Ms Smith during which Ms Woodward raised learning needs.[65] Ms Woodward told the Tribunal she told Ms Smith she was struggling and feeling anxious.[66] Ms Smith recorded in a Workplace Coaching Record that Ms Woodward said she would prefer hands on learning be provided and under the heading “Agreed Actions From Today’s Session [:] Where to From Here?” wrote “Georgia Blackwell, Training Plan in place, DPI”.[67] Ms Blackwell is a psychologist from Working Well Australia, who had previously been engaged as a rehabilitative provider for Ms Woodward. “DPI” means Disability Participation Interviews.[68] Ms Smith told the Tribunal that DPI training is facilitated training and therefore could not be arranged immediately and that she would have to wait for it to be scheduled.[69]
[65] Exhibit 9, Statement of Ms Smith, dated 7 November 2017, para 9.
[66] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[67] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure S, Workplace Coaching Record
completed by Ms Smith dated 9 February 2016; Exhibit 9, Statement of Ms Smith, dated 7 November 2017, para 9.
[68] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
[69] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
However, even though Ms Woodward had not had this training, it was not something
Ms Woodward needed in order to perform her CSO role. Ms Smith says she wrote it down because Ms Woodward indicated it was something in which she would like to be involved.[70] Ms Woodward said that at that session, Ms Smith had agreed to arrange a counselling session with Ms Blackwell. Ms Smith denies that and says she simply wrote down Ms Blackwell’s name because Ms Woodward told her she had seen her previously, which Ms Smith did not know. Ms Smith says she wrote down Ms Blackwell’s name so she could follow it up, which she did do (see paras 54-55 below).[71] The Tribunal asked
Ms Smith at hearing, when the hands on learning was provided for Ms Woodward, and
Ms Smith said on 21-22 April 2016 when she did the Facilitated Participating Training Course.[72] The course included training in YA,NSA and some Parenting Payments.Ms Smith also said that Ms Woodward could have asked a Senior Support Officer (“SSO”) at any time to show her how to do something.[70] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[71] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
[72] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
On 11 February 2016, Ms Smith conducted a mid-cycle review of Ms Woodward’s performance. Ms Smith gave Ms Woodward a mid-cycle rating of “[f]ully [e]ffective” and wrote that “Mel promotes and demonstrates behaviours that reflect the APS Values and the Department’s ethics and culture framework” and that “[t]raining was discussed and an action plan put into place to consolidate training for Mel in the participation and child care space”.[73] The training objectives were to be completed by 30 June 2016.[74] The Tribunal finds that this is further evidence of Ms Woodward’s employer assisting Ms Woodward to enable her to perform the full scope of her duties.
[73] Exhibit 9, Statement of Ms Smith dated 7 November 2017, paras 4-5; Exhibit 7, Applicant’s Submissions dated 12
October 2017, Annexure V, Performance Review, completed 17 August 2016, Section 3.1 – 3.4.1.
[74] Exhibit 9, Statement of Ms Smith dated 7 November 2017, para 6; Exhibit 7, Applicant’s Submissions dated 12
October 2017, Annexure V, Performance Review, completed 17 August 2016, Section 3.3.1.
On 11 February 2016, Ms Smith conducted a coaching session with Ms Woodward to discuss some concerns she had expressed about training. Ms Smith says that during this coaching session, Ms Woodward indicated that if she could not “cherry pick” she wanted additional training in some areas.[75] Ms Smith says during the coaching session they discussed the current supports in place, which included seeking help and guidance from Access Support by phone, SSOs and the ability to call on other staff members in the office.[76] Ms Smith told the Tribunal that she was also available if Ms Woodward needed help and there were more than 20 other staff on any given day.[77] Ms Smith said SSOs were available in the office on occasion at that time and were also available on the telephone.[78]
[75] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 12.
[76] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 10.
[77] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[78] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
At the hearing, Ms Woodward said she was not aware that SSOs were available, and that while she accessed online materials, she still did not know what she was doing and it still caused her anxiety. Ms Smith said there was no reason why Ms Woodward should not have been aware that SSOs were available.[79] SSOs can help via the internal messaging system, telephone or screen sharing and this can be done in front of the customer.[80] Ms Smith says the priority is to give the customer the correct information and that there is no concern with employees contacting SSOs in front of customers.
[79] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
[80] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
At the coaching session, Ms Smith also expressed that she wanted to put in place additional training for Ms Woodward and would arrange for "buddying", that is, for another staff member to sit with Ms Woodward while she was serving a client”.[81] Ms Smith also says she told Ms Woodward that it was fine for her to not serve client queries which caused her undue stress and anxiety and encouraged her to keep liaising with her around this.[82] Ms Woodward refutes that Ms Smith told her she could continue to “cherry pick”.
Ms Woodward says Ms Smith told her the opposite, namely that she could not “cherry pick”. Ms Woodward says Ms Smith stated that the fact that she indicated she required more training if she could not “cherry pick”, indicates that she was told she could not “cherry pick”.[83] Ms Woodward told the Tribunal that it was not until May 2016, when “buddying” was arranged, that Ms Smith told her she could “cherry pick”.[84] However,
Ms Woodward’s oral evidence contradicts her own statement prepared in July 2016. In that statement she specifically states that Ms Smith, “told me not to get the customers if it was giving me anxiety and to only select the ones I felt comfortable with until I was better trained”.[85] Ms Smith reiterated at the hearing that she did tell Ms Woodward she could “cherry pick”.[86]
[81] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 11..
[82] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 11.
[83] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[84] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[85] Exhibit 2, T Documents, T6, page 20, Statement of Ms Smith dated 8 July 2016.
[86] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
Ms Woodward told the Tribunal that following this coaching session she stopped “cherry picking”.[87] However, again, this evidence contradicts the statement Ms Woodward prepared in July 2016, where she says she continued to “cherry pick” but had to repeatedly tell other team leaders why she was “cherry picking”. This also contradicts what Ms Woodward told another Team Leader, Ms Kerrie Brown on 11 April 2016
(see paragraph 58 below).
[87] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
Ms Smith states that at the coaching session Ms Woodward also mentioned that she had previously had rehabilitative support from Ms Georgia Blackwell.[88]
[88] Exhibit 9, Statement of Ms Smith dated 7 November 2017, para 9; Exhibit 7, Applicant’s Submissions dated 12
October 2017, para 27.
Following the meeting on 11 February 2016, Ms Smith emailed the DHS People Support Team requesting information regarding Ms Woodward. She wrote:[89]
“I am wondering if you are able to assist.
We have a staff member at Beenleigh who transferred from the Call Centre. She came to us with some HR background revolving around mental health, return to work and/or suitable duties plans, and was working with Georgia Blackwell.
When she transferred into the site, this information wasn’t on forwarded. Can you please see if you are able to forward me this if possible, as some issues are starting to arise surrounding the same issues and I would like to gain some understanding and seeing if we are able to translate and support she received into the Service Centre network.
Staff member: Mel Woodward”
[89] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure W, email from Ms Smith to DHS People
Support dated 11 February 2016.
Mr David Owens from the DHS People Support Team responded to Ms Smith’s request for information about Ms Woodward on the same day as follows:[90]
“The only records currently on the system for Mel relate to ‘Shoulder, back and neck issues’ from last September. However due to privacy and confidentiality I wouldn’t be able to provide you with any information of that nature anyway.
Are you able to advise what the current issues are so I can determine if it’s HR or People Support the best support Mel.”
[90] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure W, email from Ms Smith to DHS People
Support dated 11 February 2016.
Ms Smith says she did not follow Mr Owens up in a further email due to privacy concerns.[91] Ms Woodward says Ms Smith also did not follow this up with her.[92] At the hearing, the Tribunal asked Ms Smith what she was referring to by “some issues are starting to arise surrounding the same issues”.[93] Ms Smith said she could not remember. The Tribunal finds this difficult to believe given that Ms Smith clearly referred in the email to the fact that Ms Woodward had a “background revolving around mental health” and also because it clearly followed the coaching session where Ms Woodward told her she was stressed and anxious.[94] Ms Smith would have been aware that Ms Woodward was experiencing some mental health issues at this stage.
[91] Exhibit 9, Statement of Ms Smith dated 7 November 2017, para 10.
[92] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 35.
[93] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[94] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure W, email from Ms Smith to DHS People
Support dated 11 February 2016.
On 24 February 2016, Ms Woodward completed a QTI course.[95] QTI involves NSA participants who have medical certificates which are about to expire. Ms Woodward said she thought this course concerned telephone interviews not face-to-face interviews.
[95] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 13.
On 6 April 2016, Ms Woodward completed a Managing Workplace Bullying Course. [96]
[96] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 13.
On 11 April 2016, Ms Brown emailed staff and asked them to “grab from longest wait”.
Ms Woodward responded to Ms Brown’s email stating that “[L]eissa told me I don’t have to get walks from the top if they are students or ftb because I am not trained it gives me anxiety[.] I’m always happy to learn new things but sometimes if it just says students enquiry I don’t want to get it because I have NO idea about students…”. Ms Brown forwarded that email to Ms Luccitti noting that “lots of walks getting skipped”.[97][97] Exhibit 5, Statement of Ms Smith dated 14 September 2017, Annexure B, Email from Ms Woodward to Ms Brown
and Ms Brown to Ms Luccitti dated 11 April 2016.
Ms Woodward says Ms Luccitti was already aware of her condition because Ms Smith and Ms Mackenzie had made her aware of this on separate occasions.[98]
Ms Woodward says she had also been taking sick-leave days in order to deal with her anxiety and when she called Ms Luccitti to explain why she could not come to work, she told her it was because she had anxiety. Ms Woodward says Ms Luccitti ignored her mental health issues from January 2016 to May 2016 which resulted in her suffering multiple panic attacks at work.[99][98] Exhibit 7, Applicant’s Submissions dated 12 October 2017.
[99] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 22.
There is no evidence of any follow up by Ms Brown or Ms Luccitti regarding
Ms Woodward’s email.[100] Ms Woodward’s email to Ms Brown again confirms thatMs Smith told Ms Woodward she could “cherry pick” at the meeting on 11 February 2016.[100] Exhibit 5, Statement of Ms Smith dated 14 September 2017, Annexure B.
On 12 April 2016, Ms Woodward completed a Work Load Management Course. [101]
[101] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 13.
On 21-22 April 2016, Ms Woodward completed the Facilitated Participation Training Course which included training in YA, NSA and some Parenting Payment which
Ms Woodward had requested. [102][102] Exhibit 5, Statement of Ms Smith dated 14 September 2017, paras 13-14.
On 22 April 2016, Ms Smith sent an email to the Senior Support Team requesting that three days training be provided by a SSO for staff, which included Ms Woodward, requiring interview support to increase their skills in particular areas.[103]
[103] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 15 and Annexure C, email from Ms Smith to
Senior Support dated 22 April 2016.
On 4 May 2016, Ms Woodward sent two emails to Ms Smith requesting a total of seven days recreational leave.[104] Ms Smith only granted Ms Woodward five days leave due to “operational requirements” because there were already four other staff on leave.[105] Ms Woodward wrote to Ms Smith explaining that she wanted the leave for mental health reasons and asked what Ms Smith meant by “operational requirements” and noted that the “rec roster” showed “spots free” on the days she had requested.[106] Ms Smith says she asked Ms Woodward to come over to her desk to discuss the leave request in person and then explained what she meant by operational requirements. Ms Smith says she asked Ms Woodward about her reasons for requesting the leave and Ms Woodward stated something along the lines of "I can't tell you why, I just need it''.[107] Ms Woodward then asked for Ms Blackwell to be contacted. Ms Woodward stated that she did not want to discuss this matter any further with Ms Smith.
Ms Smith says she suggested that Ms Woodward have a discussion with another Team Leader, Mr Christopher Greenup.[108] Ms Smith denies saying anything along the lines of "what is wrong with you?", crossing her arms or rolling her eyes at any time during the discussion with Ms Woodward on 4 May 2016.[109][104] Exhibit 5, Statement of Ms Smith dated 14 September 2017, paras 17-18 and Annexures D-E, emails from Ms
Woodward to Ms Smith dated 4 May 2016.
[105] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 18 and Annexures D-E, emails from Ms
Woodward to Ms Smith dated 4 May 2016.
[106] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 18 and Annexure F, email from Ms Woodward
to Ms Smith dated 4 May 2016.
[107] Exhibit 5, Statement of Ms Smith dated 14 September 2017, paras 19-20.
[108] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 20.
[109] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 21.
Ms Woodward agreed to speak with Mr Greenup and that conversation took place on or around 4 May 2016.[110] After the meeting between Mr Greenup and Ms Woodward, Ms Smith says Mr Greenup told her that Ms Woodward raised a number of concerns, including that she required additional training and support. Ms Smith says that this was the first time, since February 2016, that Ms Woodward had raised the issue of requiring more training.[111]
[110] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 20.
[111] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 20.
On 4 May 2016, Ms Woodford lodged an incident report claiming that she had suffered from “anxiety, upset and tearful, embarrassment” when her Team Leader declined her request for a few days off because she was struggling with her mental health. The incident report provides that Ms Woodward reported that:[112]
“i emailed my team leader asking if i could have a few days off as rec leave as i felt like i struggling with mental health. She declined my request when i asked why she asked me to come to her desk and asked me why i need the days off. i said I had anxiety and she asked me to tell her more details. i said i didnt feel comfortable talking about it where we were – infront of people at her desk. i asked to see georgia (rtw provider) she said i couldnt see georgia unless i told her in more detail what was wrong. i felt very anxious at the time like I was going to cry and said again i felt uncomfortable talking about it.
I had been sitting by myself with 8 empty desks around me, at the front desk next to the customers. The duress alarm didnt go off the last time a staff member pressed it. This gave me anxiety and i was worrying what would happen if something happened to me as i had no support around me. if my team leader suggested going into a room when we were having the conversation i would have been able to explain how i was feeling but I was put on the spot felt like she thought i was lying about why i needed time off rather than asking me if i was okay or how she could help me.”
[112] Exhibit 2, T Documents, T 12.15, page 209, incident report, dated 9 May 2016.
On 5 May 2016, Ms Smith sent a follow-up email to the the Senior Support Team again requesting that 3 days training be provided by a SSO for staff, which included
Ms Woodward, as she had not heard from them since her original request on 22 April 2016.[113][113] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 15 and Annexure C, email from Ms Smith to
Senior Support dated 22 April 2016.
On 5 May 2016, Ms Woodward completed a Family Domestic Violence Course. [114]
[114] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 25.
On 11 May 2016, Ms Smith agreed that Ms Woodward could move desks because she was feeling isolated.[115] Ms Smith says this was the first time Ms Woodward had told her she was feeling isolated.[116]
[115] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 28.
[116] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 28.
On 12 May 2016, Ms Smith and Mr Greenup attended a meeting with Ms Woodward.
Ms Smith says that at this meeting Ms Woodward spoke about a number of concerns, one of these concerned further training and she agreed to provide Ms Woodward with additional support, which included training with a SSO on 30 and 31 May 2016.
Ms Smith says she also offered Ms Woodward her choice of a senior staff member to sit with her for a week to assist in her learning and development. This commenced immediately and continued once a week for a period of time after that.[117] Following the meeting, Mr Greenup sent Ms Woodward an email confirming what was discussed and agreed at the 12 May 2016 meeting.[118] The email from Mr Greenup to
Ms Woodward records that:[117] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 24.
[118] Exhibit 5, Statement of Ms Smith dated 14 September 2017, paras 23-24, Annexure G, Email from Mr Greenup to
Ms Woodward dated 12 May 2016.
(c)the following was discussed:
(i)training with the Senior Support officers had been organised for 30-31 May 2016;
(ii)Ms Woodward stated that when seeking supports from SSOs she can be waiting for a significant period of time and Ms Smith requested Ms Woodward manage this up to her for further follow up;
(iii)Ms Smith offered Ms Woodward a choice of a senior staff member to sit with her for a week to assist in her learning and development and
Ms Woodward chose Peter to sit with;(iv)Ms Woodward requested support with Repayments of debts and advance loans, Prison Release Claims and Disability Participation Interviews;
(v)Ms Smith asked Ms Woodward if she can catch up with her for 5 minutes every morning when she is free to let her know how she is feeling and what support she can provide her each day;
(vi)Ms Woodward said that she feels anxious at work, but the anxiety starts to leave her when she is not at work;
(vii)Ms Woodward said she would like to meet with Ms Blackwell to put some strategies in place as she has dealt with her in the past;
(viii)Ms Smith stated that she does not know about Ms Blackwell's availability, but would speak to the people team to organise another provider to assist if Ms Blackwell was not available;
(ix)Ms Woodward felt that the training they discussed would assist with reducing her anxiety; and
(x)Ms Woodward said she had been to the doctor and was taking Valium to deal with her anxiety;
(d)the following actions were to take place:
(i)Ms Woodward was to write down any questions/topics she would like to ask of the SSO during her time with her;
(ii)Ms Woodward to manage up to Ms Smith when she is seeking support from SSOs and they are taking a significant time to respond her;
(iii)Ms Woodward to remove herself if appropriate from customer aggression situations happening around her and managing this up to the leadership team;
(iv)Ms Smith will organise for Peter to sit with Ms Woodward for a week on walks to help expand her knowledge of walk ins she is not familiar with in the service centre;
(v)Ms Smith to organise training/support for Ms Woodward in Repayments of debts and advance loans, Prison Release Claims and Disability Participation Interviews. Ms Woodward will seek opportunities to sit with staff to increase her knowledge and will inform the RTM when she is doing this;
(vi)Ms Woodward and Ms Smith to catch up every morning for five minutes;
(vii)Ms Woodward will speak to Ms Smith immediately if she does feel anxious or isolated;
(viii)if Ms Woodward has a bad customer or needs to leave the floor for a period of 5 minutes of more, she will inform a member of the leadership team; and
(ix)a member of the leadership team was to attend the health and
well-being meetings.On 17 May 2016, Ms Woodward was referred to Ms Blackwell.[119]
[119] Exhibit 2, T Documents, T4, page 8, Report of Ms Blackwell dated 16 June 2016.
On 18 May 2016, Ms Woodward completed a Managing Work Health and Safety Course and a Security in a F2F Environment Course. [120]
[120] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 25.
On 24 May 2016, Ms Blackwell conducted an initial assessment with Ms Woodward.[121]
[121] Exhibit 2, T Documents, T4, page 8, Report of Ms Blackwell dated 16 June 2016.
On 30 May 2016, Ms Woodward completed an Exempt Mutual Obligations Requirements Course. [122]
[122] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 25.
On 30 May 2016, a SSO accompanied Ms Woodward on her walks for the day to assist with family related payment enquiries.[123] Ms Woodward requested another day be provided with someone with families experience.[124]
[123] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 15.
[124] Exhibit 5, Statement of Ms Smith dated 14 September 2017, paras 23-24, Annexure C, Email from Ms Smith to
Senior Support Team dated 9 June 2016.
On 6 June 2016 Ms Woodward completed a FCC Changes Course. [125]
[125] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 25.
A Return to Work Plan was put in place on 6 June 2016 and provided for
Ms Woodward:[126]
[126] Exhibit 2, T Documents, T 12.3, pages 110 – 114, Return to Work Plan – Suitable Duties No 1.
(a)to be supported with job shadowing twice per week;
(b)to have brief daily meetings with her Team Leader, unless she felt too fragile, to:
(i)review progress with the return to work plan;
(ii)plan priorities for the day; and
(iii)identify any learning/training needs in relation to face-to-face, self-service and CLO duties;
(c)to seek assistance from her Team Leader/Manager if she felt unable to complete a customer interaction;
(d)to implement her develop management strategies if she experienced a customer interaction that she felt escalated her anxiety symptoms;
(e)to discuss any issues or concerns at the workplace or with her duties with her Team Leader; and
(f)to discuss any concerns with her return to work program with Ms Blackwell from Working Well Australia.
On 9 June 2016, Ms Smith emailed the Senior Support Team and requested that a SSO with families experience be made available for a day to support Ms Woodward.[127]
[127] Exhibit 5, Statement of Ms Smith dated 14 September 2017, paras 23-24, Annexure C, Email from Ms Smith to
Senior Support Team dated 9 June 2016.
On 9 June 2016, Ms Woodward completed a CIMS Course. [128]
[128] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 25.
Ms Woodward lodged another incident report on 14 June 2016, claiming that she had suffered from anxiety, difficulty breathing and was tearful as a result of a customer interaction. The incident report provides that Ms Woodward reported that:[129]
“cus had simple enquiry about been taken off reporting and needed his money asap. however the system would not work. i went to senior pracs but they were all offline. cus was talking at me about how he just got out of jail and breached bail and had to get money today to go to his solicitor. he had extreme sense of urgency which stressed me.
when i was trying to fix it he started telling me he also had a funeral on thursday as his baby passed away last week the first day he was home from hospital. this upset me quite a lot. i excused myself from my desk and asked a team leader for help. They fixed the issue and i issued him an urgent payment but was left feeling very shaken up.”
[129] Exhibit 2, T Documents, T 12.15, page 210, incident report, dated 14 June 2016.
In June 2016, an Initial Assessment Report was prepared by Ms Blackwell, Psychologist from Working Well Australia. Ms Blackwell reported that Ms Woodward said:[130]
[130] Exhibit 2, T Documents, T4, pages 8 – 13, Report of Ms Blackwell dated 16 June 2016.
·“…her psychological symptoms had recently escalated in response to perceived workplace stressors.
·…her anxiety started to increase at the end of 2015 when a number of staff and her key supports/friends have left the office. Around the same time, she reported there was a change of leadership office which resulted in a change of leadership style.
·…she expressed feeling like she was being micro-managed by the new leadership structure. She gave examples whereby she felt “watched” by the Team Leader; and questioned regarding returning from work breaks. Ms Woodward reported that she felt she was being unfairly targeted in comparison to colleagues.
·…she felt isolated into relation to where she was seated within the office…she felt anxious and apprehensive without colleagues being seated around in the event that she had a difficult customer interaction and feeling unsafe and vulnerable… she finds it helpful to be able to bounce off questions with colleagues and felt that this was not possible given where she was sitting
·…she found it difficult to get training/support with new learning in the CSC environment… under the previous leadership structure she was able to “cherry pick” customer queries that she felt comfortable in undertaking given her skills and knowledge base… over the last 4 – 6 months the advice was that she needed to complete customer queries in order of priority… she felt anxious when undertaking some customer queries; as she often felt like the customer had a better knowledge of the payment type/DHS criteria than herself.
·…there was a period where she felt that nobody in the current leadership structure cared… she felt unsupported and dismissed. As a result… she found her health deteriorating in the month prior to the initial assessment... she found herself crying regularly, experiencing anxiety prior to coming to work, headaches and a loss of appetite… she disclosed that she was experiencing anxiety to her employer; and felt pressure to disclose the details of her anxiety triggers; which in turn escalated her anxiety.
·…on-the-job training has recently been implemented in the form of job shadowing with experience colleagues to assist with expanding her knowledge, skills and confidence… this has been really helpful in boosting her confidence in performing work duties.
·…she is experiencing reluctance and anxiety prior to work… she struggles at times to go to sleep, knowing that she needs to wake in the mornings to go to work… her anxiety is triggered by concern that she may not be able to answer the customer query; and feeling like the customer/s have more knowledge than herself…. customers that appear to be under the influence of drugs or alcohol also trigger an anxiety response.
·…when she feels vulnerable …. experiencing heightened anxiety, she notices that her anxiety is increased given she is anticipating the daily conversation/catchup with her Team Leader… she is aware that the brief daily catchup is a support strategy; but… the thought of coming to work some days when her anxiety is already elevated (and having to have this catch up) can result in a significant increase in her anxiety symptoms.
·…she was absent from work on the 19th and 20th May given that she had a disagreement in her personal life …. and felt she couldn’t have the conversation/catchup with her Team Leader on those days.
·…anxiety presents in physical symptoms including racing heart, nausea, and headaches.”
(Emphasis added)
On 20 June 2016, Ms Woodward lodged her Compensation Claim.[131]
[131] Exhibit 2, T Documents, T5, pages 14-19, Ms Woodward’s Workers’ Compensation Claim Form dated 20 June
2016.
On 21 June 2016, a SSO emailed Ms Smith to say the earliest they could attend to train and support Ms Woodward with families’ enquiries was 26 July 2016.[132]
[132] Exhibit 5, Statement of Ms Smith dated 14 September 2017, paras 23-24, Annexure C, Email from Ms Smith to
Senior Support Team dated 9 June 2016.
On 23 June 2016, Ms Woodward completed a Gender Guidelines Course. [133]
[133] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 25.
On 24 June 2016, Ms Woodward completed a Principle Carer Course. [134]
[134] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 25.
Two subsequent Return to Work Plans were put in place on 4 July 2016 and 1 August 2016 and provided for Ms Woodward:[135]
[135] Exhibit 2, T Documents, T 12.13, pages 193 – 196 and 197-199, Return to Work Plan – Suitable Duties Number 2
and Return to Work Plan – Suitable Duties Number 3.
(a)to be supported with job shadowing and/or access online learning packages;
(b)to have brief daily meetings with her Team Leader, unless she felt too fragile, to:
(iv)review progress with the return to work plan;
(v)plan priorities for the day; and
(vi)identify any learning/training needs in relation to face-to-face, self-service and CLO duties;
(c)to seek assistance from her Team Leader/Manager if she felt unable to complete a customer interaction;
(d)to implement her develop management strategies if she experienced a customer interaction that she felt escalated her anxiety symptoms;
(e)to discuss any issues or concerns at the workplace or with her duties with her Team Leader/Manager; and
(f)to discuss any concerns with her return to work program with Ms Blackwell from Working Well Australia.
Ms Woodward reported to Dr Ng in August 2016 that:[136]
“Initially [she] was told to be selective about the customer she saw and was allowed to pick those with carers and disability enquiries. This suited her because she believed that she had had not enough training and that she was quite skilled in that area. Conversely some of her work colleagues were not skilled in that area. They were happy to pick up customers that she was not seeing.
She did process work for three months between September 2015 and December 2015 and there were no problems. When she came back in the New Year she continued working face-to-face customer work for about one month when a new manager said that she could no longer pick her clients and that she had to do all enquiries. However, there was minimal training. She stated that she struggled. She made this quite clear that she had had minimal training and became increasingly anxious due to the large amount of unfamiliar work.
[She] noted that there were a number of other problems. People around her got moved so she became increasingly isolated. It was difficult to turn to people for advice. There were no disputes with immediate work colleagues. She recalled her anxiety symptoms intensifying when there was another aggressive customer with a colleague. The duress alarm did not go off and a colleague fainted. Ms Woodward became increasingly anxious and nervous; “what if that happened to me”.
Over the course of early 2016 [she] start to hate going to work. She claimed that her training requests were ignored; “customers knew more than me”. She started to request annual leave days to cope with her stress in about February/March 2016 but they were denied. There was one incident where she was asked by a manager about her health in an open workspace and she felt humiliated; “she already knew the situation”…[She] eventually got her recreational leave.
[She] believed that she was proactive and indeed asked for assistance through Working Well Australia. She had known that rehabilitation provider from her Coffs Harbour time. [Working well Australia] became involved in about April/May 2016…She stated that she started to have increased training and job scheduling about two to three months ago. She cut down from full-time work to four days per week approximately two months ago because she was distressed. She was not sleeping. There were crying episodes. She was dreading work. She started to have Wednesdays away from work.
…She was supposed to have two periods of training per week… and that they only happen sometimes… [She] believed that she was improving, in that she was increasingly up to speed and familiar with the processes. However, she also expected that she should have been better at it by now. The delivery of training had been haphazard. Job shadowing had its advantages and disadvantages… She also found it very difficult to learn different enquiries and streams, moving from topic to topic. She would have preferred training to be delivered in packages. She also noted that she had a diagnosis of ADHD which made it difficult for her to remember and to focus.”
(Emphasis added)
[136] Exhibit 2, T Documents, T 13, pages 238 – 245, Report of Dr Ng dated 26 August 2016.
Ms Woodward had an annual performance review for the year ended 30 June 2016 conducted by Ms Smith. Ms Smith gave Ms Woodward an annual review rating of “fully effective” and wrote that:
“Mel has had extensive training in the assessment period, completing not only all mandatory training required, but also completing additional facilitated training to support her in her role, and on the job training to consolidate this training, and one on one training with SSOs to assist in her learning. Mel has also undertaken LMS packages to support her learning needs. She has completed participation training and child care training within this assessment period”.[137]
[137] Exhibit 9, Statement of Ms Smith dated 7 November 2017, para 7; Exhibit 7, Applicant’s Submissions dated 12
October 2017, Annexure U, Performance Review, completed 11 February 2016, Section 3.4.1.
In the performance review report Ms Woodward disagreed with Ms Smith’s comments and stated: “[I] have not completed child care training [I] do not understand it. [T]he additional facilitated training [I] attended was the same as all other staff besides the participation training, which a group of us newer staff attended”.[138]
DID MS WOODWARD SUFFER A DISEASE?
[138] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure U, Performance Review, completed 11
February 2016, Section 3.3.2.
Did Ms Woodward suffer an ailment?
In 2011 Ms Woodward was diagnosed with Bipolar Affective Disorder and Attention Deficit Hyperactivity Disorder (“ADHD”).[139]
[139] Exhibit 2, T Documents, T 12.6, pages 137 – 145, Report of Dr Zsadanyl dated 5 February 2014.
In 2013, Comcare accepted a claim for compensation from Ms Woodward for adjustment disorder with anxiety sustained in September 2013. Ms Woodward’s 2013 claim was due to problems with the IT system, having a multitude of assessments, the change of Team Leaders, potentially the majority of people in her office knowing about her psychiatric condition and her perception of being treated differently.[140]
[140] Exhibit 3, Comcare’s Statement of Facts Issues and Contentions dated 14 July 2017, para 2.2.
In 2014, Dr Zoltan Zsadanyl, Consultant Psychiatrist, assessed Ms Woodward and reported that “her mental state is stable and that she doesn’t present with any active symptoms of either condition that would preclude her from working”.[141]
[141] Exhibit 2, T Documents, T 12.6, pages 137 – 145, of Dr Zsadanyl dated 5 February 2014.
As a result of Ms Woodward’s current compensation claim, Ms Woodward was assessed by Dr Ng, Consultant Psychiatrist, in August 2016.[142] Dr Ng reported that:
·Ms Woodward’s adjustment disorder with anxiety is currently of mild severity and appears to be related to workplace problems.
·“There appears to be an underlying vulnerability to depression and anxiety.
·It would appear that she has encountered new workplace problems leading to anxiety and hence her reduced hours and modified duties
·It would appear that Ms Woodward’s employment is the main precipitant for her current episode of adjustment disorder
·She was distressed about changes to her duties and did not perceive herself as adequately trained [Dr Ng told the Tribunal these issues are interrelated] or in a position to cope. She sought out appropriate training, according to her.
·There is no evidence that Ms Woodward’s adjustment disorder was caused by reasonable administrative actions. It would appear to be rather a difficult change of her job role and she may have been under-prepared for that change.”
[142] Exhibit 2, T Documents, T 13, pages 238 – 245, Report of Dr Ng dated 26 August 2016.
Dr Ng told the Tribunal that Ms Woodward gave a history of work where she could be selective about the cases she could handle and she was skilled at dealing with some areas but not others and this was no longer to happen and she had to attend to all enquiries.[143]
[143] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018)..
Counsel for Comcare asked Dr Ng the following question at the hearing:
Ms Slack:
“If Ms Woodward had not been told that she could not cherry pick would she have suffered the adjustment disorder?”
Dr Ng said it was unlikely and explained that:
“if there was no event where the scope of her duties changed from her point of view then of course she would not have developed the adjustment disorder because her employment would have just carried on the way it had been. One would make the assumption that there would have been no workplace stress which would later become an adjustment disorder, she would not have had to increase the scope of her duties being done at the time”.[144]
[144] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018)..
Counsel then asked Dr Ng for further clarification:
Ms Slack:
“if she had not needed to increase the scope of her duties, would she also have not suffered the adjustment disorder?”
Dr Ng:
“Yes, she probably would not have developed an adjustment disorder”.
On the basis of Dr Ng’s assessment, this Tribunal finds that Ms Woodward suffered from a mental ailment, an ailment, as defined by section 4 of the Act, that was contributed to by her employment at the DHS. That is, Ms Woodward suffered a disease as defined in section 5B of the Act. This is not disputed by Comcare.[145]
[145] Exhibit 6, Comcare’s submissions dated 4 October 2017, para 16.
The Tribunal finds that Ms Woodward, therefore suffered from a disease as defined by section 5B of the Act.
The issue then becomes whether Ms Woodward suffered this disease as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.
WAS THE DISEASE SUFFERED AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION?
The High Court in Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29 held, at [45] (“Martin”), that:
“…an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.”
(Emphasis added)
The High Court in Martin then went on to say (at [47]) that:
“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 in 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.”
Therefore, as outlined by the Full Federal Court in Lim v Comcare [2017] FCAFC 64 (“Lim”) (at [41]), applying Martin, to satisfy the causal requirement in the exclusion in section 5A(1), the Tribunal has to be satisfied that Ms Woodward would not have suffered an ailment (or aggravation of an ailment) if the administrative action had not been taken.[146]
[146] See also Hollis v Comcare [2017] FCA 558, at [5].
The Tribunal must also consider whether Ms Woodward would have suffered the adjustment disorder if the administrative action had not been made.[147]
[147] Lim v Comcare [2017] FCAFC 64, at [42].
The Full Federal Court in Lim noted that (at [45]):
“…where both employment and non-employment factors are posited as contributing to an ailment or an aggravation of such an ailment (within the meaning of s 5B(1)), in order to determine whether s 5B applies, a finding would need to be made as to whether the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. If there were an affirmative finding, then the further questions would arise as to whether or not there was reasonable administrative action taken in a reasonable manner; and, if so, whether or not the disease would have been suffered by the employee if that action had not been taken. If the Tribunal were so satisfied, then the exclusion to the definition of “injury” in s 5A(1) would apply.”
Comcare submits that the evidence demonstrates that Ms Woodward would not have suffered the psychological condition if she had not been told that she could not "cherry pick" and if the DHS did not enforce the requirement for her to perform the full scope of her role.[148]
[148] Exhibit 6, Comcare’s submissions dated 4 October 2017, para 26.
It is not disputed that the evidence establishes that:
(a)Ms Woodward was directed not to “cherry pick” on 25 January 2016;[149] and
(b)in Dr Ng’s opinion, Ms Woodward would not have suffered from the disease if she had not been told to stop “cherry picking”.
[149] Exhibit 1, Statement of Ms Mackenzie dated 15 September 2017, para 5, Annexure A.
The Tribunal finds that if Ms Woodward had not been told to stop “cherry picking”, she would not have suffered an injury and that she has therefore, suffered the injury as a result of this action.
The next issue is whether the action was reasonable administrative action.
WAS THE DIRECTION TO NOT “CHERRY PICK” REASONABLE ADMINISTRATIVE ACTION?
Comcare submits that:[150]
(a)the direction given to Ms Woodward by Ms Mackenzie on 25 January 2016 to not “cherry pick” constituted Ms Woodward being “counselled” about how she was performing her duties; and
(b)the implementation of the DHS's requirement for Ms Woodward to perform the full scope of her role (i.e. action taken in connection with being counselled about how to perform her duties);
are reasonable administrative actions undertaken in a reasonable manner, which fall within subsections 5A(2)(b) and (e) of the Act.[151]
[150] Exhibit 6, Comcare’s submissions dated 4 October 2017, para 23.
[151] Exhibit 6, Comcare’s submissions dated 4 October 2017, para 22.
Ms Woodward’s Role
Ms Woodward submits as follows:[152]
“The situation in essence is that I was employed into a position without defined roles or responsibilities, description or contract. Initially I was placed into a role to which I was very well suited and possessed the required skills and capabilities and performed to an excellent standard. Subsequently being recognised and elevated into the pool for promotion. Then after a change of personnel at both levels of management, my role was changed. I was then expected to perform tasks and a role for which I was not trained, expected to adapt with no guidance or assistance and deprived of the general access training that had been provided to every other staff member in that role. This, despite my frequent and desperate requests for the correct training, which I have proven to exist.
As a direct result of the hopeless situation I found myself in I suffered from mental health issues which were ignored, or at best, trivialised. The clear direction provided by the policies in place to deal with issues just like mine, were ignored or simply not followed, resulting in the exacerbation of my symptoms. When I asked for help, I did not receive it until four and a half months later. By this time I had not only sustained a mental health injury but was deemed clinically ill”
[152] Exhibit 7, Applicant’s Submissions dated 12 October 2017, paras 39-40.
Ms Woodward’s argument is that she was forced to serve customers, face to face, without any training which caused her to suffer from Adjustment Disorder with Anxiety and Depression.[153]
[153] Exhibit 4, Statement of Ms Woodward dated 18 August 2017.
Ms Smith says that at no time did Ms Vickery or anyone else tell her that Ms Woodward was hired to carry out different or limited duties compared to other APS4 CSOs.[154]
[154] Exhibit 9, Statement of Ms Smith dated 7 November 2017, para 3.
Ms Woodward’s evidence is that when she was transferred to the BCSC she was hired to work in a Disabilities & Carers position. However, there is no documentary, or any other, verifiable evidence of this. The offer of employment did not limit the scope of Ms Woodward’s duties in any way, all of the supervisors gave consistent evidence that at no time were they informed that Ms Woodward’s scope of duties were not that of a normal CSO. There was no specific job description provided with the transfer, no contract was signed and the job offer letter she received was a relatively informal email which had no job outline or description.[155] While there was an informal agreement between Ms Woodward and Ms Vickery that she could serve the pensions customers, there is no evidence to corroborate Ms Woodward’s statement that this was to be to the exclusion of her other duties as an APS4 CSO, which was to deal with all customer payment types.
[155] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure A, Email from Ms Vickery to Ms Woodward
dated 1 June 2015.
There is no evidence to support Ms Woodward’s contention that she was hired to perform a limited role. Further, given Ms Woodward’s outline of her skills, provided when she requested the transfer to BCSC, it is understandable that her managers and Team Leaders were unaware, at the time she was hired, that she may have been ill equipped to perform the role she had been hired to perform. Ms Woodward was hired to perform the full scope of her role.
What Is “Administrative Action”?
In the Full Federal Court decision of Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 (“Reeve”) Rares and Tracey JJ held that “administrative action” referred to in the exclusion part of section 5A(1):
“[57]… was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.
[60] The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.”
(Emphasis added)
Rares and Tracey JJ, having considered the explanatory memorandum said:
“[73] Here, the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1).
[74] However, the Explanatory Memorandum did not suggest that “administrative action” was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.
(Emphasis added)
Section 5A(2) provides that, for the purposes of section 5A(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 5A(2) of the Act is not an exhaustive list.[156]
[156] The Full Federal Court in Drenth v Comcare (2012) 128 ALD 1, at [21] held that the 'action' referred to in
s.5A(l) is not qualified by the non-exhaustive list of examples of 'reasonable administrative action' provided for in s.5A(2)
Administrative action is to be distinguished from other actions, such as operational actions. In Reeve, Gray J held, at [31], that “…an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as 'administrative’ action, but as operational action with respect to the employee's employment”.
Gray J also said in Reeve, at [33]:
“It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”
[in section 5A(1) of the Act], unless the action taken was not reasonable, or was not reasonably taken.”
The Full Federal Court recently considered the construction and application of the exclusion contained in the definition of “injury” in section 5A of the SRC Act in
Comcare v Drinkwater [2018] FCAFC 62. The decision was handed down on 26 April 2018, after the completion of the hearing in this matter. The Full Court notes (at [51]) that in Reeve, it was found that the:“…exclusion did not apply to action forming part of the everyday tasks and duties of that employment, and, in consequence, ordinary routine work, and changes to routine and directions to perform work, were not “reasonable administrative action taken in respect of the employee’s employment”: see CBA v Reeve at [33], [60]. The Full Court held that the events that contributed to Mr Reeve’s condition were part of his ordinary work duties as an employee; the exclusion did not therefore apply; and he was not disentitled to compensation under the SRC Act: see CBA v Reeve at [34], [61], [64].”
The Full Court noted, at [67], that Reeve “…indicated that the boundary between administrative action and non-administrative action may on occasion be difficult to draw” and that “whether or not there is administrative action within the meaning of s 5A(1) of the SRC Act depends to a significant extent on the particular circumstances in which the action is taken.”
In Drinkwater, the Court found (see [68]-[70]) that the illness suffered did not develop in response to Mr Drinkwater performing his normal duties. In Drinkwater the relevant action was about transferring Mr Drinkwater to a different post or position from that which he then held in his employer’s employ, and that was held to be “administrative action”. The Court said, relying on Reeve that the case was not about Departmental directions as to how Mr Drinkwater was to do his job in his then position or about his duties in that job; and it did not, for this reason, involve operational action falling outside the exclusion.
In Ferguson v Commonwealth Bank of Australia [2012] AATA 718 (“Ferguson”) the Tribunal found that the employer had cause to talk to Ms Ferguson about how she was performing her job and that it was therefore administrative action. The Tribunal noted that this was contrary to the employer giving Ms Ferguson direction or instruction about what the job involved.
The Tribunal finds that the action taken by Ms Mackenzie on 25 January 2016 was “administrative action”. It was specific action taken in respect of Ms Woodward’s employment. The action was directly concerned with how Ms Woodward was performing her job. Further, the action by Ms Mackenzie involved “counselling”. The meaning of “counselling” was considered in Radulovic and Comcare [2010] AATA 777, where the Tribunal said at [76]-[77]:
“It is clear that ‘counselling’ in the therapeutic sense is not the intended meaning. In Domburg v Nurses Board of Victoria [[2000] VSC 369], Ashley J said that ‘counselling’ in an employment relations context ‘has an industrial relations flavour’ and involves ‘something less than a caution or reprimand’. It is the ‘least severe – or most benign’ of the corrective administrative actions which can be made by an employer or provisional association.
...
The Macquarie Dictionary defines ‘counselling’ as relevant as: ‘8) to give counsel to; advise; 9) to urge the doing or adoption of; recommend (a plan, etc). 10) to give counsel or advice’.The Public Service and Merit Protection Commission and Comcare, in a joint publication, refer to ‘performance counselling’ as a “formal” process in relation to assessment and monitoring of an individual’s work performance’, while ‘effective feedback’ is referred to as a form of ‘informal counselling’.”Those comments were agreed to by the Tribunal in Ferguson.[157] I similarly adopt those comments. Ms Woodward was being “counselled” or advised. Ms Mackenzie queried why Ms Woodward was not performing her job the way APS4 CSO’s were meant to and then provided advice/counsel to Ms Woodward reminding her about some of the tools available to her, namely, Access Support and SSOs.
[157] [2012] AATA 718, at [94] – [95].
As Counsel for Comcare submitted, while it was general policy to not “cherry pick”, the fact that Ms Woodward was engaging in “cherry picking” was an inappropriate performance of her duties and she needed to be “counselled” about it.
Counsel further submitted that it is reasonable for an employer to tell an employee to do their job in the way it was set up to be done.
To decide that an employer cannot expect an employee to perform their duties or that they could not counsel their employees about how they were performing their role, would lead to an absurd result.
This case is somewhat similar to Gilbert v Comcare
[2009] AATA 224 (“Gilbert”). In that case the applicant was placed in a new role as a CSO at Centrelink, having previously been a personal assistant. One of the incidents Mrs Gilbert complained about was an incident where she was “questioned” by a senior practitioner “about taking so long with a customer”.[158] The Tribunal found that Mrs Gilbert had “an obsessive conviction that she could not cope with the demands of the position of CSO or CSA because she had been inadequately trained for that position”.[159] The Tribunal found that the matters of which
Mrs Gilbert complained, amounted to one or more of a reasonable appraisal of performance, a reasonable counselling action or a reasonable disciplinary action and they answer the description of “reasonable administrative action” in s 5A(2) of the Act.[160]
[158] Gilbert at [21].
[159] Gilbert at [5].
[160] [2009] AATA 224, at 33.
In relation to the second relied upon action, that is the way the workplace implemented the direction. As Counsel submitted, this rises and falls with whether the Tribunal finds that first action was administrative. As the Tribunal has found that it was, it is not necessary to consider this secondary action.
The Tribunal notes that Ms Woodward did not contend that the relevant actions were not administrative.
The next issue is whether the administrative action was undertaken in a reasonable manner.
Comcare referred the Tribunal to a number of decisions which demonstrate that whether or not an administrative action was undertaken reasonably is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned.[161]
[161] Stieglitz v Comcare [2010] AATA 263; Thompson and Comcare [2012] AATA 752, at [61]
The Federal Court in Comcare and Martinez (No 2) [2013] FCA 439 (“Martinez”) at [83] agreed with the statement of Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42:
“Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.”
The Full Court in Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42 at [63] said:[162]
“In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.”
(Emphasis added)
[162] Cited with approval by Cowdroy Jin National Australia Bank Limited v KRDV (2012) 204 FCR 436 at [51].
Comcare contends that prior to considering application of the reasonable administrative action exception, it is first prudent to consider whether Comcare can argue that
Ms Woodward's perception about not being adequately trained was an accurate reflection of the true state of affairs, and referred to von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464 where he said (at [31]):[163]“... there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
[163] Exhibit 6, Comcare’s Submissions dated 4 October 2017, para 43.
Comcare contends that Ms Mackenzie, telling Ms Woodward on 25 January 2016 that she could not "cherry pick" customers (i.e. being counselled about how she was performing her duties) was reasonable administrative action undertaken in a reasonable manner because:[164]
(a)In January 2016, Ms Mackenzie was the Front of House Team Leader at the APS5 level and was therefore an appropriate person to counsel the Applicant against cherry picking;
(b)Annexure A to Ms Mackenzie's statement demonstrates that the Applicant did not have a problem with the manner in which she was told not to cherry pick;
(c)To the extent that Ms Woodward says that she should not have been told that she could not cherry pick, she had never raised prior to 25 January 2016, her perceived lack of training and inability to perform her role;
(d)In circumstances where Ms Mackenzie could not have known that
Ms Woodward was cherry picking because she did not feel adequately trained, she cannot be criticised for seeking to correct the manner in which the Applicant was performing her role.[164] Exhibit 6, Comcare’s Submissions dated 4 October 2017, para 44.
Comcare contends that the manner in which the DHS' requirement for Ms Woodward to perform the full scope of her role was implemented was undertaken in a reasonable manner because:[165]
[165] Exhibit 6, Comcare’s Submissions dated 4 October 2017, para 45.
(a)Ms Woodward told Ms Mackenzie that she cherry picked because she had
'NO idea about child care' .[166] Ms Mackenzie then escalated Ms Woodward's complaint to Ms Smith and Ms Luccitti.[167][166] Exhibit 7, Applicant’s Submissions dated 12 October 2017, Annexure A.
[167] Exhibit 1, Statement of Ms Mackenzie dated 15 September 2017, para 9.
(b)Ms Smith was on leave until early February 2016.[168] When she returned from leave, Ms Smith received a request to carry out some coaching with
Ms Woodward following Ms Woodward 's response to being told not to cherry pick by Ms Mackenzie.[169](c)Ms Smith held a coaching session with Ms Woodward on or around 11 February 2016. Ms Smith stated that "during the coaching session we discussed the current supports in place, which include seeking help and guidance from Access Support by phone, Senior Support Officers and the ability to call on other staff members in the office."[170]
(d)Also during that training session, Ms Smith advised Ms Woodward that she could continue to not serve client queries that caused her undue stress and anxiety.[171]
(e)In February and April 2016 Ms Woodward participated in various facilitated and self-paced training programs.[172]
(f)Between February and early May 2016, Ms Woodward did not raise with
Ms Smith that she needed any additional training.[173] Ms Woodward disagrees and says she did go over to Ms Smith and ask for help and Ms Smith would say she would get training for her and she would arrange buddying for her.[174] Ms Woodward also says she asked if she could have alternate duties such as processing but that Ms Smith said there was no capacity for that and she needed to serve people walking through the door.[175](g)After Ms Woodward raised the need for additional training in May 2016, additional training was arranged for her.[176] Between 5 May 2016 and 20 June 2016 (the date of her Compensation Claim), arrangements were made for
Ms Woodward to participate in six training courses and by 24 June 2016,Ms Woodward had completed an additional two courses.[177][168] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, para 3.
[169] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, para 6.
[170] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, para 10.
[171] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, para 11.
[172] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, para 13.
[173] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, para 20.
[174] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
[175] Exhibit 4, Statement of Ms Woodward dated 18 August 2017.
[176] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, paras 24 and 25.
[177] Exhibit 2, T12.2, Statement of Ms Luccitti, dated 12 July 2016, page 91.
Comcare submits that:[178]
“lt was the Department's practice to encourage an independent learning environment. It provided the tools available for [Ms Woodward] to learn, in a supported way, how to perform all aspects of her role. [Ms Woodward] did not report an ongoing need for additional training between February and May 2016 and when she did, in early May 2016, action was taken and additional more specific training was provided. [Ms Woodward’s] superiors cannot be criticised for not doing something they did not know was needed to be done. A holistic, objective view of the facts, demonstrates that the manner in which the Department's requirement for [Ms Woodward] to perform the full scope of her role was implemented was undertaken in a reasonable manner”.
…while some action might have been conducted differently, or in a more reasonable manner, is not the point. In [Martinez] Robertson J held at [82], after referring to Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [82],:
“I would of course agree with French J, as his Honour then was, that the word 'reasonable' allows the possibility that there may be more than one way of doing things 'reasonably', and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.”
[178] Exhibit 6, Comcare’s Submissions dated 4 October 2017, paras 46-47.
Ms Mackenzie says “CSOs are provided with general training, and then are expected to build up their knowledge”. She says there are a number of supports in place such as access support, senior practitioners, intranet resources and detailed procedures which are designed to help CSO’s learn and develop their knowledge and take on topics they may not have had specific training on. Ms Mackenzie says CSO’s are expected to communicate the learning needs with their Team Leader and to discuss whether a training plan should be put in place.[179] Ms Woodward had received some training (as identified in her transfer request) and the Annual Review, signed by Ms Vickery on 13 August 2015, notes that Ms Woodward required training in NSA, YAL claims and Access work
(which is the General Training for Access).[180][179] Exhibit 1, Statement of Ms Mackenzie dated 15 September 2017, paras 6-8.
[180] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 5, Annexure D, Individual Performance Review
completed 13 August 2015, section 3.3.2.
Ms Smith says:[181]
“The level of training provided to CSOs may differ depending on the subject and the needs of the CSO. For example, training can take a number of forms such as "screen sharing", face-to-face facilitated sessions, or individual training through internally available resources. The information available on the intranet tor CSOs together with other supports that are available, are designed so that CSOs can pick up enquiries on topics prior to, and after, receiving formal training in those topics.
It is expected that if CSOs feel that they require supplementary or further training, it is their responsibility to communicate these needs to their team leader.
Prior to December 2015, Ms Woodward had completed five training courses. From February 2016 to June 2016, she completed a further twelve training courses.”
(Emphasis added)
[181] Exhibit 5, Ms Smith’s Statement dated 14 September 2017, paras 7-9.
Prior to December 2015, Ms Woodward completed the following training courses:[182]
(a)Job Plans;
(b)Assisting customers to obtain sickness allowance;
(c)Allowance income and assets tests for sickness allowance;
(d)Extending immunisation; and
(e)Introduction to complaints and feedback - not related to customer payment types.
[182] Exhibit 2, T Documents, T17, Ms Woodward’s request for reconsideration dated 30 September 2016. page 262.
The evidence establishes that Ms Woodward completed five training courses prior to December 2015. Those courses however were not courses specifically relating to content of customer payment types or face to face customer dealings.[183] Ms Woodward says that while she completed Job Plans training, it was undertaken in August 2015 and she did not start seeing customers until months later the following year and some of the information was outdated.[184]
[183] Oral evidence of Ms Woodward, not disputed produced at hearing (4 October 2017; 11 April 2018).
[184] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
Of the 12 courses Ms Woodward completed between December 2015 and June 2016, two were related to customer payment types, these were: Facilitated Participation training (which was training for face-to-face staff ) and Principal Carer training which
Ms Woodward completed on her own on 24 June 2016.[185] The Facilitated Participation training took place in Brisbane on 21-22 April 2016. As referred to earlier, Ms Woodward accepted at the hearing that there would be a delay between her request for training and when it could be provided.[186][185] Exhibit 2, T Documents, T17, page 262, Ms Woodward’s request for reconsideration dated 30 September
2016.
[186] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
Comcare submits that Ms Woodward’s supervisors cannot be criticised for not doing something they did not know needed to be done.[187] However, it is clear that
Ms Woodward’s supervisors did know that training was required, as Ms Woodward had repeatedly requested it.[187] Exhibit 6, Comcare’s submissions dated 4 October 2017, para 46.
Ms Woodward says Ms Smith should have read Ms Woodward’s IPA report and been aware of the training she required when she became Team Leader.[188] However, while the report indicates that Ms Woodward wanted further training, which DHS was happy to provide, this does not mean Ms Woodward could not perform her role with the supports that were in place.
[188] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 7.
In his statement, Mr Ashenden wrote that Ms Woodward completed a number of learning management system packages.[189] However, under examination at the hearing, he said that he could not recall whether Ms Woodward completed the LMS packages, but he had assumed she did.[190]
[189] Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, para 5.
[190] Exhibit 10, Statement of Mr Ashenden dated 6 November 2017, paras 5-6.
At the hearing, Ms Woodward says she was aware of the online resources, such as the Guide to Social Security Law (which provides general information on all payment types), that were available and Operational Blueprint (which requires searching specific areas and is a useful resource for CSOs).[191] Ms Woodward says that she did not know there were SSOs available on the telephone.
[191] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
Ms Woodward says Ms Smith did not put a training plan in place after the coaching session on 11 February 2016. Further, Ms Woodward notes that at that time she was assessed as “fully effective”.[192] In the performance review report Ms Smith indicates that an action plan was put in place, but Ms Woodward says she was never provided with any training plan.[193] Ms Smith says a training plan can be informal or verbal.[194] The Tribunal agrees that a training plan need not be “formal”. It is clear from the coaching notes that training methodologies were agreed to and that the plan was to complete the training by 30 June 2016 and this is what happened. The matter also needs to be looked at in the context that Ms Smith told Ms Woodward at the coaching session on 11 February 2016 that she could “cherry pick” until she had completed her training.
[192] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 30.
[193] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 31, Annexure U, Individual performance
assessment on 11 February 2016, section 3.3.1.
[194] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
In Ms Woodward’s second performance review completed 17 August 2016, Ms Woodward notes that it contains the same reference to an action plan being put in place.[195]
[195] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 32, Annexure V, Individual performance
assessment on 17 August 2016, section 3.3.1.
At the hearing I asked Ms Smith whether she thought Ms Woodward needed training at the February 2016 meeting. Ms Smith said she did not believe she did and no-one had indicated to her that she did.[196] Even though Ms Smith did not believe training was necessary for Ms Woodward to perform her duties, steps were put in to place by Ms Smith for that training to be provided. The Tribunal finds that this demonstrates that DHS had regard for Ms Woodward’s own assessment of her ability and knowledge.
[196] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
Ms Woodward says she frequently made verbal requests for training to Ms Smith, both formally and informally and on numerous occasions approached her desk to make these requests and requested the training in her performance review meetings and coaching sessions. Ms Smith says she cannot recall if Ms Woodward came to her desk, but accepted that it was possible she did. Ms Woodward says that despite these requests the training was not provided.[197] In her written statement of 8 July 2016, Ms Woodward wrote that she “started to feel like there was no point in asking for training”.[198]
[197] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 36.
[198] Exhibit 2, T Documents, T6, page 20, Statement and Timeline of Ms Woodward dated 8 July 2016.
The Tribunal does not accept that training was not provided. It was provided between February and June 2016, as per the agreed plain arising out of the coaching session on 11 February 2016.
Ms Woodward says at least four people, including three from the Leadership Team and the overall manager, had been advised of her condition and were aware she was suffering from anxiety and all of them failed to adhere to the Department’s policies. The Work Health & Safety policy provides that reducing mental stress is a priority (section 3.4).[199] The policy concerning promoting good mental health provides, among other things, that:[200]
“Leadership teams must help implement effective mental health and safety practices to minimise risk of mental health injury and create a positive work environment. Mental health and safety practices should include:…
·ensuring staff have access to learning and development opportunities
·working with staff to help meet their career development goals
·helping to manage workload, task variety and pace of work
·monitoring staff and their patterns of work and as part of early intervention, make inquiry if problems are emerging
·(Emphasis added)
[199] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 19, Annexure O, DHS Work Health and Safety
policy.
[200] Exhibit 7, Applicant’s Submissions dated 12 October 2017, paras 19-20, Annexures K and L, DHS policy on
promoting good mental health in my team.
Ms Woodward says the first time any action was taken to support her was when she met with Mr Greenup in May 2016.[201] That is not the case. Ms Woodward attended a two day content training program in April 2016. Ms Woodward said after meeting with Mr Greenup things started to improve. Ms Woodward acknowledged at the hearing, that even though training courses were discussed at the coaching session in February 2016, she knew it would not be immediately provided and accepted there would be a delay.[202] However,
Ms Woodward said it was unreasonable to not provide buddying sessions immediately and that she could have been given time to complete online learning packages before being sent back out to the floor. Ms Smith was asked why she did not implement the “buddying” straight away and she said she could not recall.[201] Exhibit 7, Applicant’s Submissions dated 12 October 2017, para 23.
[202] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
Ms Woodward said she was not given any opportunity at work for learning and development time to complete online training packages. Ms Woodward said she was only assisted by others when requested, once out of every three requests. Ms Smith says she was not aware that Ms Woodward was not getting assistance and if she had known she would have escalated this to appropriate supervisors or given her alternative options.[203] Ms Woodward says that other staff would get frustrated with her. Ms Smith told the Tribunal she cannot recall if she ever received negative feedback from staff regarding
Ms Woodward having a learning need. Further, there is no record of any complaints being passed on to Ms Smith.[204] Ms Smith says she never received any negative feedback from customers about Ms Woodward.[205][203] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
[204] Exhibit 5, Statement of Ms Smith dated 14 September 2017, para 16.
[205] Oral evidence of Ms Smith produced at hearing (4 October 2017; 11 April 2018).
There was no limitation in Ms Woodward’s employment contract. Ms Woodward knew that cherry picking was inappropriate. Ms Woodward had been in the role of a face-to-face CSO for four months before she was counselled by Ms Mackenzie. Ms Mackenzie was the lead supervisor at the time.
Ms Woodward’s injury was caused by being told she could not “cherry pick”. This direction was an action taken regarding how Ms Woodward was to perform her role. It was perfectly reasonable for DHS to expect Ms Woodward to perform the full scope of her duties given that:
(a)Ms Woodward had been employed by the DHS as an APS4 CSO for 5 years prior to commencing at BCSC;
(b)Ms Woodward described herself as having specialist knowledge of some areas and training in general layer;
(c)Ms Woodward described herself in her transfer request as:
(i)
adaptable to new challenges and a “quick efficient learner” who was
“happy to take on any work”;
(ii)having “appropriate technical knowledge and experience” and the “ability to self-manage”, get on with the job & find answers quickly”[206].
[206] Exhibit 8, Statement of Ms Vickery dated 10 November 2017, para 3, Annexure A, Email from Ms Woodward to
Ms O’Shea dated 22 May 2015.
There was no evidence that DHS knew she was suffering from a clinical mental illness at the time she was counselled.
The Tribunal finds that the evidence demonstrates that the action taken by Ms Mackenzie in the circumstances was reasonable and that given Ms Woodward’s request, she was then allowed to “cherry pick” and training was provided in accordance with an agreed upon plan. Senior staff met with Ms Woodward again in May 2016, continuing to work with her in addressing her perceived concerns and further training and buddying was then provided.
The Tribunal finds that DHS’ conduct was undertaken in a “reasonable manner”.
Therefore, the Tribunal finds that the direction given to Ms Woodward not to “cherry pick” was an “administrative action”, being a “counselling” action about how Ms Woodward was to perform her duties under section 5A(2)(b) of the Act and that it was taken in a “reasonable manner” in respect of her employment. The exclusionary provision in section 5A(1) of the Act applies and Ms Woodward’s ailment is not an “injury” for the purposes of the Act. Therefore, Ms Woodward is not be entitled to compensation under section 14 of the Act.
DECISION
The reviewable decision dated 27 October 2016 is affirmed.
I certify that the preceding 163 (one hundred and sixty -three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
........................[Sgd]................................................
Associate
Dated: 14 June 2018
Date(s) of hearing: 4 October 2017 & 11 April 2018 Applicant: In person Counsel for the Respondent: Ms Kate Slack Respondent: Ms Carmen Basilicata, Claims and Liability Management Legal Team, Comcare
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