YVONNE PERERA and COMCARE
[2013] AATA 589
[2013] AATA 589
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5624
Re
YVONNE PERERA
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 22 August 2013 Place Canberra The decision under review is affirmed
......................................[sgd]..................................
Professor RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth Employees – anxiety disorder – whether reasonable administrative action – whether taken in a reasonable manner in respect of employment
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 7(4), 14
Cases
Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Comcare v Martinez [2013] FCA 439
Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Falconer v Pedersen [1974] VR 185
Re Findlay and Comcare [2013] AATA 324
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Hart v Comcare (2005) 145 FCR 29
Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Secondary Materials
DC Pearce, Statutory Interpretation in Australia (6th edn, 2006)
REASONS FOR DECISION
Professor RM Creyke, Senior Member
22 August 2013
Ms Yvonne Perera suffered from anxiety disorder. She sought to establish the liability of Comcare to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
On 15 August 2011, liability was denied, a decision upheld on review on 16 December 2011. On 20 December 2011, Ms Perera sought further review by the Tribunal.
The matter was heard in Canberra on 13 and 14 May 2013, and closing submissions were made on 12 June 2013.
Background
Ms Perera, born 1957, was employed from April 2010 as an Australian Service Officer level 4 (ASO4) in the Aboriginal and Torres Strait Islander Aged Care Workforce Section of the Department of Health and Ageing (agency). She also, with permission, was involved in a private business she had run from home since 2007, making wedding cakes. Upon arrival in Australia in 1991, Ms Perera had been employed in a variety of positions, mostly of a secretarial nature, commencing in 1992. Ms Perera left the agency in June 2011.
Ms Perera first worked in the agency in 2007 and became a permanent employee from 6 November 2008. She was assigned to the Office of Ageing and Medicare in the agency in April 2010.
Ms Perera worked in a branch headed by a branch head, below whom was a Director, an Executive Level 2 (EL2) officer (Ms C). Reporting to her were two assistant directors (Ms W and Ms S), both EL1s. The team in which Ms Perera worked had changed, at her request, in October 2010 from Ms W’s team, to Ms S’s team. Ms Perera was working in that team with three other Australian Public Service Officers (ASOs).
On 8 July 2011 Ms Perera lodged a claim for workers’ compensation for an ‘anxiety state’ the symptoms of which she said were first noticed in September 2010, and for which Ms Perera said she first sought medical treatment in November 2010.
Incident 1: 6 September 2010
Ms Perera claimed her anxiety state was due to two incidents. In the first, on 6 September 2010, Ms Perera was away from her desk from about 2.00pm to 2.30pm. She said ‘I had really bad diarrhoea and I was cramping and I felt like I was going to faint, and I was perspiring cold sweat. So I stayed in the toilet, and I was afraid that if I got up I would fall and hurt myself. So I just stayed in the toilet until I felt a bit better’. Ms W had telephoned her during this time but Ms Perera had seen that it was a blocked call and did not respond. Ms Perera had not told anyone where she was going.
Upon her return to her desk Ms W asked where she had been. Ms Perera responded that she had been in the toilet. Ms W, according to Ms Perera, then said ‘For 20 minutes?’ To which Ms Perera said she responded ‘Yeah, I’ve got gastro, I’m having diarrhoea’. Ms W is then said to have replied ‘No one goes to the toilet for that long’. The interchange occurred in front of other officers. According to Ms Perera all of them were listening and she said she heard laughter when Ms W expressed surprise that she had been in the toilet for that length of time. Later Ms Perera was heard talking quite loudly on the telephone discussing the incident.
The office was an open plan office, separated by partitions divided into bays of either four or eight desks facing the partition on either side, and a space at the end of each block with a table for meetings. Either adjacent to or behind the person’s seat was a filing cabinet. There was a bookshelf on the other side of the desk parallel to the partition. Ms Perera said her desk was at one end of a block and Ms W’s desk was at the other end, about five to six metres apart. On this particular occasion Ms W was seated at the table and the conversation occurred when Ms Perera was returning to the table for the file updating but was still some desks away.
Not long after the incident Ms S called Ms Perera into her office because she was loudly saying things like ‘I suppose I shall have to ask permission to go to the toilet and to get a glass of water’. Ms Perera’s desk was right outside Ms S’s office. At that meeting Ms Perera told Ms S that Ms W had explained her enquiries about her absence on the basis that Ms Perera was often absent from her desk and others did not know where she was. In response Ms Perera said she had asked Ms W to monitor her arrival and departure times. Ms W had been reluctant to do so.
Ms S’s evidence concerning the issue of the absences of Ms Perera from her desk without notification was that she recalled saying to Ms W ‘You can’t say people are away from their desk without providing evidence of whether they’re away from their desk’. At that point Ms W agreed she would keep records of Ms Perera’s arrival and departure times. Ms W said when she did so it exacerbated the relationship between herself and Ms Perera because she found discrepancies between Ms Perera’s timesheets and her records.
Later that day, Ms Perera spoke to Ms W about the incident and tried to explain that she was feeling unwell. At that time, only one or two people were within earshot. According to Ms Perera, Ms W became a bit defensive and said ‘I’m sorry I embarrassed you but you’re always missing from your desk’. Ms Perera then asked her to itemise the occasions when Ms Perera was missing from her desk but Ms W did not do so.
That night Ms Perera drafted a file note about the incident which she gave to Ms S as Acting Director next morning to put on her personnel file. Ms Perera emphasised that the note was not a formal complaint about the incident. She also explained that she had not sought medical treatment for her diarrhoea at that time as ‘I was able to cope with it’. Ms S said she had never before or since had a file note from a staff member concerning their supervisor.
In August 2010, Ms C had told her staff that they were expected to inform their supervisor, or in the supervisor’s absence, a colleague, if they would be absent from their desk, where they were, and for how long. It was understood that this meant absences of more than ten minutes. Ms C said that the reason she provided the advice was that ‘throughout the year there were incidences of [Ms Perera] not being able to be found and part of dealing with that was to tell the whole section that these are the rules’. However, Ms C also said in evidence that she had implemented the same practice in other sections in the past.
On 6 September 2010, the section was expecting a visit from the Australian National Audit Office (ANAO) at 3.00pm. All the staff had been involved in the period leading up to the visit checking files to ensure they were in order for the ANAO auditors. As it transpired the visit did not occur on that day, but at 2.00pm this was not known. Ms Perera agreed in evidence that in these circumstances it was reasonable for the supervisor to ask her where she had been. She also agreed that she had been going to the toilet throughout the morning because of her diarrhoea but she had not told anyone that she had a problem.
Ms Perera agreed that when she moved into Ms S’s team in early October 2010 Ms S asked her to email her arrival and leaving times. When Ms S raised this with her Ms Perera had said she had an arrangement with Ms C and Ms W that she only recorded arrival times when she came in to work before 7.30am and she would check with the union before she agreed to do so. Later, however, she acknowledged that she did record both times for flex purposes.
Ms W noted in evidence that she had counselled Ms Perera about her business calls during working hours and told Ms Perera to limit them to lunchtimes. Ms Perera complied for a period but calls again resumed after a while. Ms Perera said if a call came in during business hours she would only return the call during the lunch break. Ms W also said in evidence that Ms Perera had ‘come to us with a warning’. She also said ‘she didn’t take direction’ and she was ‘Difficult to supervise’.
Incident 2: 25 November 2010
Ms Perera had changed sections in early October 2010, from Ms W’s to Ms S’s section. Both sections were involved in the travel arrangements for some 50-60 attendees at a conference being organised by the agency for employees in Registered Training Organisations around the country. The conference was to take place a few days after 25 November 2010 in Alice Springs. On 24 November 2010, after 8.00pm another more senior team member had emailed Ms Perera and Ms C to notify them of problems she had found in the spreadsheet for the flight bookings for delegates. The team member, who was in Ms W’s section, listed nine discrepancies she had identified in flight details. It also contained a comment ‘Some mistakes were made by QTB [Qantas Business Travel] but there were a number of errors based on human error’. Ms Perera, who was principally responsible for updating the spreadsheet with the flight details, took the reference to ‘human error’ as a personal criticism.
On the morning of 25 November Ms Perera and Ms C were first at the office and together they worked on the bookings sheet and discovered, subject to confirmation of flights by Qantas in two or three cases, that there were no incorrect bookings and the discrepancies in the spreadsheet could be rectified once the information had been received from QTB. The problems had arisen because Ms Perera had not fully updated the spreadsheets by noting the changes requested by delegates to their flight details. Ms C asked Ms Perera to explain this to the team member who had sent the email.
When the team member arrived at work, Ms Perera spoke to the team member and explained what had happened. She did so at the team member’s desk. Ms Perera was standing at the side of her desk and the team member was seated. The team member did not have a visitor’s chair. Ms Perera explained that the faults were not hers, and she also said she thought the email, in its reference to ‘human error’ was a personal attack. According to Ms Perera she had said ‘I took it personally because lately I’ve been getting the blame for everything’. The team member responded, according to Ms Perera, ‘I’m sorry that’s how you feel’.
During the conversation the team member began to cry, and Ms Perera said she put her hand on the team member’s shoulder to comfort her. She then left the desk. Ms W arrived at that time and observed the crying. Ms W’s evidence was that when she arrived she observed Ms Perera standing over the team member, whose head was down, and Ms Perera’s position appeared to her to be overbearing or intimidating. Ms W took steps to remove the team member to the kitchen to hear her concerns and to offer her comfort. Later the team member lodged a formal complaint against Ms Perera concerning this and some other incidents over the previous ten months.
When Ms S got to work that morning, she said Ms Perera had come to her and told her there had been some discrepancies in the spreadsheet but they had been resolved. Later Ms S said she was not aware that all the correct flights had been booked and she thought that several still needed rectification. Mid-morning, Ms S called a meeting with Ms Perera and another team member to discuss the issues to do with the spreadsheet. The meeting was held at the table in the open plan room. Ms Perera said about six other officers could see those at the meeting and about nine more could hear what was said at the meeting.
Ms Perera admitted at the meeting that she had made a mistake in not updating the spreadsheet, but also explained that the discrepancies remaining were due to delays with Qantas. During the meeting Ms W joined the group and said that the spreadsheet should have been updated, indicating it was Ms Perera’s fault. Ms W said that during the meeting Ms Perera was not being cooperative. She continued to protest her innocence and was also saying words to the effect ‘I suppose if I cried people would believe me’.
Ms W agreed in evidence that on this occasion she was frustrated and annoyed because Ms Perera was being unhelpful and had been concerned about Ms Perera’s upsetting the team member who had been crying earlier. Her desk was just behind where Ms Perera was sitting, close to the partition, and the team member would be able to hear the conversation. Ms W, according to Ms Perera, then stood up and said firmly ‘Stop it. You made my staff member cry. Don’t you ever speak to me or my staff ever again’. Ms W’s version of the conversation was ‘Please don’t speak to my staff like that again’. She then left the meeting. Ms S’s evidence was that Ms W had not sat down at the meeting.
Later that morning Ms S informed Ms Perera there was to be a meeting with Ms C and herself at 1.00pm in the Director’s office. The meeting according to Ms C was to remind Ms Perera of the importance of following the processes, in this case updating a spreadsheet, in a project of the kind being undertaken.
According to Ms Perera the spreadsheet was not discussed. Ms Perera denied that she had said ‘Maybe if I cried I could get away with things too’. Instead, according to Ms Perera, Ms C said that Ms Perera had been ‘very rude, and that ever since I joined the team everyone has been very unhappy. She said that she had already spoken to HR and I would be contacted by the end of next week’. Ms Perera said Ms C was very angry and Ms S was trying to calm her down. The meeting was held in Ms C’s office and the door was closed.
Ms C said Ms Perera missed the point about process and was focusing on her claim that she had not made any errors. Ms C agreed she probably had said to Ms Perera ‘You can’t bully people. What you did to [the team member] was unprofessional’ and she acknowledged that she had reached a level of frustration with Ms Perera at the meeting. She also accepted she may have said something about Ms Perera upsetting people and that she could not treat people the way she had.
At that point Ms Perera said she had produced a tape recorder and said to Ms C ‘Would you like to say that on tape’. To which Ms C had replied ‘Have you been taping what we just said?’ I said ‘No. I’ll ask permission before I do it’. She said ‘Is it appropriate for you to have it’? To which Ms Perera said she replied: ‘But it’s not on’. The Director then stopped talking, opened the door and according to Ms Perera walked out and slammed the door. Ms C denied saying she had already spoken with human resources (HR) and that Ms Perera would be contacted. Her recollection was that in the unusual circumstances that arose during the meeting she needed advice and would have voiced the fact that she would be seeking it from HR.
Ms C admitted that she had shut the meeting down quickly because ‘I was getting a little bit agitated, a little bit upset’. Her testimony was that she said: ‘We will have to talk about this later’. As she explained:
I was personally affronted by the tape recorder being pulled out. It - if you perhaps look at this from another perspective, it's almost a threat, pulling out a tape recorder, and I was uncomfortable. I think I was shocked, and I knew I had to stop the meeting immediately so I could regroup and just have a breath and, you know, pursue the matter later. Also get some advice.
Ms C said Ms Perera had never before produced a tape recorder and Ms C had never experienced a request from anyone before this incident or since to use one. She also denied slamming the door or leaving Ms S and Ms Perera in her office.
Ms Perera explained in cross-examination that ‘as an EA [Executive Assistant, her position prior to her move to the Ms W’s section in 2010] she always has a tape recorder in her pocket just in case she has to remember things’. She said she has RSI and cannot write very quickly. She said she always asks her bosses if she can use it as a reminder for herself and most say yes.
Ms Perera said there were others in the office who could hear what was said during the lunch time meeting and the door slam. She said when she left people looked at her with pity, and a few approached her to ask what was happening. Ms Perera said she felt embarrassed, terrible, belittled, angry and scared due to the threat of HR action.
Ms Perera saw Dr Elizabeth Wong, her general practitioner, Fadden Medical Centre, on 26 November 2010. She recorded Ms Perera saying she ‘felt stressed, emotionally drained, angry easily, difficulty sleeping and increasing headache’. However, no anti-depressant was prescribed, according to the clinical records of Dr Wong, until 30 March 2011. In the interim, although she was not certain when this commenced, Ms Perera began receiving counselling from the Employee Assistance Program.
Ms Perera also said she was on anti-depressants ‘while I was in the Department of Health and Ageing…And then when I left the [agency] I slowly stopped taking the anti-depressants’. It took about a month to wean herself. The Tribunal notes from the medical records that Ms Perera was on Avanza from August 2009 until January 2010 due to problems in a previous section at the agency when she claimed to have been bullied and harassed. Ms Perera had again contacted her doctor for a depressive anxiety disorder in October 2010. The clinical notes indicate this was due to domestic issues. However, her doctor did not prescribe an anti-depressant.
Ms S said in her statement and confirmed in evidence that Ms Perera was sensitive to criticism.
Issues
The sole issue was whether Ms Perera’s condition occurred as a result of reasonable administrative action undertaken in a reasonable manner. If the circumstances fall within this exclusionary element of the provision, Ms Perera’s claim is not compensable as it is excluded from the definition of an ‘injury’ for the purposes of section 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Sections 4(1) and 5A define what is a compensable injury; section 7(4) describes what is the date of injury; and section 14 sets out when Comcare is liable to pay compensation for an injury which incapacitates for work.
Consideration
At the outset of the hearing, both parties agreed:
·Ms Perera’s claim concerned an aggravation of an anxiety state;
·the date of injury was 26 November 2010, the date on which Ms Perera first sought medical treatment for her anxiety state; and
·the injury was significantly contributed to by Ms Perera’s employment (section 5B(1)).
The Tribunal is required to be ‘satisfied’ that the decision is the correct or preferable decision[1] and is not bound to accept concessions made by parties.[2] In this instance, the Tribunal is satisfied, based on the clinical notes for 26 November 2010 of Dr Wong, Dr Wong’s report of 30 July 2011, the absence of any evidence to suggest an alternative cause of the injury, and the evidence of Ms Perera and other staff about the events of 6 September 2010 and 25 November 2010, that the concessions were appropriate.
‘Reasonable administrative action’
[1] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 per Smithers J.
[2] Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at 80[1], 87[20] – [21] per French J.
At the outset of the hearing, both counsel submitted that the actions taken by managers in respect of Ms Perera, particularly on 6 September 2010 and 25 November 2010, were ‘administrative actions’ and were ‘reasonable’ (section 5A(1)).
As Gray J said in Commonwealth Bank of Australia v Reeve, administrative action is ‘action with respect to the employee as employee and his or her employment relationship with the employer’.[3] Rares and Tracey JJ in the majority judgment in Reeve said that ‘administrative action’ referred 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’.[4]
[3] Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463 at [30].
[4] Id at [57].
The Tribunal is satisfied that in the case of the incidents on both 6 September 2010 and 25 November 2010, the actions were taken by a manager of Ms Perera, that they related specifically to her and her employment, and were accordingly ‘administrative actions’.
‘Taken in a reasonable manner’
The principal issues were whether the administrative actions identified were taken in a reasonable manner and, as conceded by Comcare, the manner in which the reasonable actions were undertaken contributed to Ms Perera’s anxiety condition to a significant degree.
Ms Perera’s worker’s compensation claim described the anxiety disorder as having commenced in September 2010. As she said ‘the chain of events that led to my current injury began on 6 September when I was embarrassed by [Ms W]’. Ms Perera’s argument was that it was the cumulative impact of that event together with the events over the following two and a half months, and in particular on 25 November 2010, that led to her seeking medical treatment on 26 November 2010.
Whether administrative action is reasonable must be tested objectively.[5] The meaning of ‘reasonable’ for statutory purposes is its ordinary, natural meaning,[6] which may involve recourse to a dictionary,[7] and must be considered in its context.[8] As the Victorian Supreme Court said in Falconer v Pedersen: ‘One must interpret the phrase [or word] as used in its context, assisted as it may be but not necessarily bound by one of a variety of dictionary definitions’.[9] However, the administrative action need not be faultless;[10] it is sufficient if it is reasonable in all the circumstances, albeit there are alternative ways it could have been done.[11]
[5] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [78] – [79] per French J. See also Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25.
[6] Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461.
[7] DC Pearce, Statutory Interpretation in Australia (6th edn, 2006) [3.30]. As Pearce comments ‘the law reports contain thousands of examples of cases in which courts have referred to dictionaries for guidance’.
[8] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[9] Falconer v Pedersen [1974] VR 185 at 187.
[10] Re Findlay and Comcare [2013] AATA 324 at [34] – [35].
[11] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [82] per French J.
That context may require the consideration of many factors including, if the context is a public service agency, the seniority of officers, the terms of any contract or directions to which the officer is subject, general requirements within the public service, including any code of conduct or ethics, or any integrity statement, and the terms, if relevant, of the certified agreement.[12] The circumstances are not confined to the impact on the person involved.[13]
[12] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[13] Comcare v Martinez [2013] FCA 439 at [73].
As Lander J said in Keen v Workers Rehabilitation and Compensation Corporation:
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.[14]
Incident 1: 6 September 2010
[14] Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47 – 48. The extract was quoted with approval by Robertson J in Comcare v Martinez [2013] FCA 439 at [83].
Counsel for Ms Perera submitted that Ms W’s persistence with enquiries about Ms Perera’s absence from her desk was insensitive, as were her sarcastic or surprised comments about the length of time Ms Perera had taken in the toilet. Her enquiries could be heard by others in the open plan area and Ms Perera was embarrassed, annoyed and upset that the question had been asked and the responses overheard by colleagues. Indeed the evidence was that Ms W later apologised for embarrassing Ms Perera, acknowledging that she had overstepped the mark. He also submitted that the treatment of Ms Perera amounted to harassment in terms of the agency’s ‘Workplace Harassment Guidelines’.
Counsel for Comcare submitted ‘[Ms W’s] phone call and questions were no more than the normal and proportionate exercise of supervisory responsibility in the face of unreasonable behaviour’. Counsel submitted the incident was administrative action, minor in nature, but was escalated by Ms Perera. The incident was, however, significant, as attested by Dr Wong, whose report was that ‘it was [one of the principal] incident[s] that mainly aggravated her symptoms’.
The Tribunal notes that the context included: a rare visit of auditors from the Australian National Audit Office (ANAO), expected that afternoon at 3.00pm; an instruction from Ms C that if employees were likely to be absent from their desks for more than ten minutes during business hours, they would notify a colleague, an instruction with which Ms Perera had indicated she was reluctant to comply; Ms Perera’s failure to notify anyone of her absence on this as on other occasions, including the morning of 6 September 2010 when she said she had gone frequently to the toilet because of her gastrointestinal problems; and a history of some differences of view between Ms Perera and Ms W, illustrated by the interchange between them on the issues of the monitoring of Ms Perera’s arrival and departure times.
The Tribunal has no reason to doubt that Ms Perera did suffer from an abdominal problem that afternoon. In those circumstances which necessitated her quickly going to the toilet, it was excusable that she had failed to notify someone in advance of her absence. Given the nature of the problem, it was also understandable that she had not advised people she was having problems in the morning. However, the circumstances did justify Ms W asking Ms Perera to explain her absence, given the failure of advance notification by her of her absence, the non-response by Ms Perera to her phone call, and the pressure on the group to complete their file updating prior to the ANAO visit.
So the simple inquiry by Ms W as to the reason for Ms Perera’s absence was understandable and was not unreasonable. Further the Tribunal accepts that Ms Perera contributed to the awareness of others of the inquiry in that it was Ms Perera’s subsequent loud telephone discussion of the incident that escalated the matter and contributed to her prolongation of the embarrassment she said she felt. The Tribunal also accepts that Ms Perera’s telephone conversation about the matter was louder than normal since it led to Ms S calling Ms Perera into her office to ask what was upsetting her.
The Tribunal notes that on its own an inquiry as to a colleague’s whereabouts, within the hearing of others, when there is an instruction to notify for absences of more than ten minutes, may be an inquiry undertaken in a reasonable manner, particularly in a situation in which all staff of an area are involved in an urgent task. However, if the inquiry can be interpreted as a reprimand it may need to be handled more sensitively, particularly in circumstances in which it may elicit a response which intrudes into the personal domain.
In the circumstances affecting Ms Perera on 6 September 2010, given her contribution to the embarrassment, the matter had not reached the threshold of being undertaken in an unreasonable manner. Nor did it reach the threshold of being harassment in terms of the agency’s Workplace Harassment Guidelines[15], which describes ‘harassment’ as ‘repeated instances of behaviour that is perceived as offensive, intimidating, humiliating or that degrades, ridicules or insults a person at work’, since there was no evidence of repetition of such treatment of Ms Perera.
Incident 2: 25 November 2010
[15] Taken into account as a lawful policy known to staff: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Counsel for Ms Perera submitted that the treatment of Ms Perera on 25 November 2010 caused her ‘to be very upset, angry, hurt, embarrassed and belittled’. The two occasions were:
(i)Ms W’s intervention in the mid-morning meeting of Ms S’s team in the open plan area to discuss the spreadsheet and the bookings; and
(ii)Ms C’s meeting, in her office with Ms S and Ms Perera, initially to discuss the need to maintain proper processes, in this instance, continuously to update the airline booking spreadsheet.
Counsel for Comcare submitted that Ms Perera’s own behaviour caused the incidents to be escalated and was itself unreasonable. In the team meeting in the morning, it was Ms Perera’s repetition of her innocence and her provocative remark to the effect that perhaps if she cried, she would be believed, a remark which was made within the hearing of the team member who had cried when confronted by Ms Perera that morning, which led to Ms W speaking sharply to her while the meeting was under way.
(i) Meeting 1
The Tribunal notes that Ms Perera had acknowledged at the meeting that she had not updated the comments section of the spreadsheet. At the same time, during the meeting she had been more concerned about protesting that she was not responsible for errors in the bookings, while Ms S and, when she arrived, Ms W were focused on discovering the true picture of the bookings schedule and rectifying any deficiencies. This clash of purposes led to the degree of frustration by Ms W, coupled with her concern that Ms Perera’s repetition of comments about attracting sympathy through crying. That led Ms W to reprimand Ms Perera in front of those at the meeting, and within the hearing of others in the open plan area.
Nonetheless, the Tribunal is not prepared to find in the circumstances that this action was undertaken in an unreasonable manner. Ideally Ms W would not have spoken so sharply to Ms Perera in the hearing of others, nor would she have left the meeting apparently before it had concluded. However, given the urgency of the matter at hand, the need to discover the true picture about the airlines bookings, a need which Ms Perera was not apparently perceiving, and the immediate concern to protect the team member (who was close by on the other side of the partition) from being further upset by Ms Perera’s remarks, it was not unreasonable for Ms W to have spoken peremptorily to Ms Perera at the meeting. Accordingly the Tribunal finds that this incident was reasonable administrative action undertaken in a reasonable manner. That is sufficient to dispose of this matter.[16] However, in the event that this finding is incorrect, the Tribunal considers the second meeting as well.
(ii) Meeting 2
[16] Hart v Comcare (2005) 145 FCR 29.
In this instance the office door was closed and no issue was made about the location of the meeting. Ms Perera did note that when Ms C became angry, this was audible outside her office since she said she had some sympathetic inquiries from fellow staff after the meeting. However, in the circumstances this did not make the location of the meeting one which was unreasonable.
At the meeting, Ms Perera had continued to protest her innocence and was unable to focus instead on Ms C’s agenda, which was to remind Ms Perera about the need to comply with proper processes. Ms C accordingly had become frustrated and annoyed and said words in a louder than normal voice to the effect ‘You can’t bully people’, that what Ms Perera had done to Ms W’s team member was ‘unprofessional’, and that since she had been with the section Ms Perera had been rude and upset people and caused people to be unhappy. Ms C’s reaction was understandable in the circumstances and was not undertaken in an unreasonable manner.
Further, the producing by Ms Perera of the tape recorder at that point and her question ‘Would you like to say that on tape’ was provocative and an affront to Ms C. Ms Perera said she had previously used a tape recorder but had always sought permission to do so in advance. On this occasion, there was no advance warning and Ms C was understandably shocked, angry, and needed time to consider how to deal with this untoward action. Her action in promptly closing down the meeting was wise in the circumstances. She said in evidence that she realised she would need to get advice from HR and this was appropriate.
Ms Perera’s view was that Ms C had said she had previously been in touch with HR who would be contacting Ms Perera within the week, a comment Ms C said she viewed as a threat. However, the detailed notes of Dr Wong do not corroborate this account. The Tribunal prefers the view of Ms C on this issue, given that it is likely in this novel situation that Ms C would not have sought that advice in advance of this unanticipated event, and as the other events concerning Ms Perera which had precipitated the meeting, had only occurred that day. On balance, given the provocation, Ms C’s manner of handling the meeting was not unreasonable and was tolerable and fair in the circumstances.
Conclusion
The Tribunal notes, in conclusion, that both meetings were instigated to discuss the arrangements for the forthcoming conference to take place within a few days. There was a degree of urgency about the correct finalisation of airline and accommodation bookings given the imminence of delegates’ departures from, in many cases, remote locations in Australia. So although the meetings became, in both instances, informal counselling sessions of Ms Perera, and accordingly would fall within the meaning of administrative action,[17] this was not their genesis. Nor did it mean that the conduct of the counselling was conducted in an unreasonable manner since what transpired at those meetings could not be anticipated and was at least in part due to Ms Perera’s own behaviour. The consequence is that the actions complained of by Ms Perera were undertaken in a reasonable manner, they were administrative actions, and any injury said to have arisen from those actions was not an ‘injury’ for the purpose of the Act.
[17] Act section 5A(2)(b).
The decision under review is affirmed.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member ......................................[sgd]..................................
Associate
Dated 22 August 2013
Dates of hearing 13 - 14 May and 12 June 2013 Counsel for the Applicant Mr Stephen Hausfeld Advocate for the Applicant Mr Brian Hatch Solicitors for the Applicant Brian Hatch Solicitor Counsel for the Respondent Mr Andrew Dillon Advocate for the Respondent Ms Susan Dalliston Solicitors for the Respondent Sparke Helmore Lawyers
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