Lambert and Comcare [2009] AATA 13 (12 January 2009)

Last Updated: 12 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 13

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N 2006/440

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GRAEME LAMBERT

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Date 12 January 2009

Place Coffs Harbour

Decision

The decision under review is set aside and in substitution therefor the Tribunal decides that section 14 of the Safety, Rehabilitation and Compensation Act 1988 is applicable to the injury suffered by the Applicant and that he is entitled to compensation.

....................[sgd]....................
Ms N Isenberg
Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – aggravation of disease – reasonable disciplinary action – letter to the applicant was a step anterior to taking disciplinary action – letter to the applicant was not reasonable disciplinary action – applicant entitled to compensation – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 – Sections 4, 14

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 353; (1992) 37 FCR 75

Comcare v Eames (2008) 101 ALD 90

Re Sydney Harbour Federation Trust and Comcare [2008] AATA 1087

Re Carson v Comcare (AAT 13150, 3 August 1998)

Re Quarry v Comcare (1997) 47 ALD 113

Re Choo v Comcare [1995] 39 ALD 399

REASONS FOR DECISION

12 January 2009

Ms N Isenberg, Senior Member

BACKGROUND

1. In 2002 the Administrative Appeals Tribunal made orders, at the request of the parties, that between 25 August 2000 and 27 May 2002 Mr Lambert suffered a major depressive episode to which his work at Centrelink contributed. He then continued working at Centrelink.
2. On 8 October 2004 Mr Lambert worked on the Centrelink counter, in the course of which he was spoken to by the supervisor, Ms Fisher. At lunchtime Mr Lambert was upset and telephoned Ms Fisher, informing her, using strong language, that he was not returning from lunch because he was sick. As he was then on scheduled leave for the following four weeks, a letter (“the letter”) was sent to him on 12 October 2004 to the effect that his behaviour was inappropriate.
3. Upon his return on 8 November 2004, he was provided with a further copy of the letter. He did not return the following day. On 10 November 2004, Ms Fisher gave Mr Lambert another letter (“the second letter”) requesting that he meet with her to discuss his work performance on 8 November 2004, his absence on 9 November 2004 and the letter which had been handed to him on 8 November 2004 (i.e. a copy of the letter). He refused to attend the proposed meeting, and stated that he would get a medical certificate, which he did.
4. In a medical certificate dated 15 November 2004, his GP, Dr Ian Arthur, certified Mr Lambert as unfit for work from 11 October 2004 to 26 November 2004 due to depression. The doctor provided subsequent medical certificates, which covered the period to 1 April 2005. Dr Arthur referred Mr Lambert to Dr Paul Cadzow, consultant psychiatrist.
5. In August 2005, Mr Lambert made a claim for workers’ compensation in which he alleged that he suffered depression as a result of the letter. He was examined at the Respondent’s request by Dr Skinner, consultant psychiatrist. On the basis of her report, the Respondent conceded that Mr Lambert had suffered an injury, namely an aggravation of his adjustment disorder, when he received the letter. However the Respondent contends that the aggravation was a result of reasonable disciplinary action taken against Mr Lambert, and, as such, the aggravation is not compensable.

LEGISLATIVE FRAMEWORK

6. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), in particular sections 4 and 14.
7. Subsection 14(1) provides as follows:

(1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8. Subsection 4(1) defined “disease” and “injury” as follows:

In this Act, unless the contrary intention appears:
...
disease means:
                     (a)  any ailment suffered by an employee; or
                     (b)  the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
...
injury means:
                     (a)  a disease suffered by an employee;
...
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. [emphasis added]

ISSUES

9. The issues in this application are:
   • Was the aggravation of Mr Lambert’s adjustment disorder suffered as a result of disciplinary action?
   • If so, was the disciplinary action reasonable?
10. I was reminded that since Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 the reasonable disciplinary action need not be the sole cause of the aggravation in order for the exclusionary provisions to apply, provided it materially contributed to his condition.

REGULATORY FRAMEWORK

11. Unlike most matters of this kind (eg Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 353; (1992) 37 FCR 75 (“Chenhall”), Comcare v Eames (2008) 101 ALD 90 (“Eames”) and Re Sydney Harbour Federation Trust and Comcare [2008] AATA 1087 (“Sydney Harbour”)), there was no evidence of the regulatory framework pursuant to which Centrelink staff are formally disciplined.
12. Such evidence as there was came from Mr Lambert himself. Mr Lambert said he knew that the Australian Public Service (“APS”) has “minimum standards” in commencing disciplinary action, such as those set out in the second letter: 24 hours notice of a meeting at a specified date and time and the invitation to bring a support person. The support person is usually the union delegate who has received training in “these sorts of matters”. Mr Lambert was aware of this because he is the union delegate and has fulfilled the role as ‘support person’ for others. As to his own circumstances, he said he regarded the second letter as the start of some formal process, because of its “serious tone”.
13. Counsel for the Respondent, however, did not rely on the Centrelink or APS regulatory framework, but emphasised the definition of ‘disciplinary action’ in Chenhall that:

... [it] means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. ... [emphasis added]

14. He submitted that the letter was clearly to promote discipline, especially as it annexed documents which set out the following:

Centrelink responsibilities
...
Team leaders’ responsibilities
...
Employee responsibilities
...
Centrelink’s Shared Behaviours
...
Values and conduct
...
APS Values (Section 10 of the Public Service Act 1999)
...

In addition, an extract of the APS Code of Conduct was included.

THE EVIDENCE

15. By way of background, Mr Lambert told me that he had joined the CES, the predecessor to Centrelink, in 1991. He was recruited through a special process for people with disabilities - he suffers dysgraphia, a condition which is associated with fine motor skills problems, thereby making handwriting difficult, and consequently, slow. This special recruitment process, however, did not equate to any concessions in the workplace, and he was expected to perform as any other clerk in his position.
16. Ms Fisher had not formally been made aware of Mr Lambert’s “special requirements” in relation to his handwriting difficulties. She was aware though that he had previously had “trouble” at work and assumed he had ongoing depression.
17. Ms Fisher gave evidence that on 6 September 2004 she commenced acting as team leader of the “participation team” of which Mr Lambert was a member. This was her first extended period of acting as a Centrelink team leader, a role for which she had received no training. On about 6 October 2004 she took over as “customer support” team leader, responsible for, amongst other things, staffing the front counter.
18. Mr Lambert said that because he knew there were a lot of staff absences, he had volunteered to come in on 7 and 8 October - his 2 flex days before his scheduled leave - to help Ms Fisher out. He had observed she was “struggling with the roster”. Ms Fisher put him on counter duty, which, other than lunchtime relief, he had not performed since at least 1999, possibly earlier. Mr Lambert said that his usual role at Centrelink was in the back office, but, like everyone else, he took a turn at relieving at lunchtime, about once a week. Ms Fisher agreed that relief work was quite different to full reception duties.

THE LETTER

19. In her evidence Ms Fisher said that because of concerns as to Mr Lambert’s health following the phone conversation she had had with him, she sought advice from the Human Resources (“HR”) manager. She said the HR manager drafted the letter addressing “HR’s concerns” about Mr Lambert’s behaviour, setting out what was acceptable and saying that there was a need for further discussion. Ms Fisher said she sent it at the direction of the HR manager. Her own concern was as to how Mr Lambert was feeling because of how distressed he was on the phone. She did not think the letter encouraged and supported Mr Lambert.
20. In his evidence Mr Lambert agreed that he had received the letter while on leave. He “freaked out” and “went weak at the knees”. He could not believe that Ms Fisher, who he regarded as a friend, had sent him such a thing. He felt betrayed. He hoped it was all a misunderstanding and that it would “blow over”. He spent his whole holiday “stewing” about the letter. He said that he did not regard the letter as a “formal reprimand”, but thought the letter anticipated formal code of conduct action in the future if his conduct were repeated. He considered the letter to be threatening and accusing.

FAILURE TO ADHERE TO INSTRUCTIONS

21. The letter noted that Mr Lambert’s behaviour on 8 October 2004 was considered “inappropriate” and that there were several issues in relation to “non adherence to instructions”.
22. The letter contended that Mr Lambert failed to adhere to “team protocols” despite a specific request from his team leader, and that failure to comply with those protocols was a breach of the APS Code of Conduct.
23. Ms Fisher said in her evidence that this referred to Mr Lambert’s failure to carry out tasks that were required of him at reception, that is, the processing of rent certificates. This in fact was the only direct instruction which Mr Lambert allegedly failed to follow.
24. Ms Fisher produced a document which purported to list reception tasks, including the processing of rent certificates. This was a new procedure. She specifically said she had not shown Mr Lambert a copy of this document at any time. Mr Lambert said he only found out he was supposed to process rent certificates when, while at the counter, two rent certificates which he had set aside for back-office processing were returned to him by one of the participation team members.
25. Mr Lambert’s evidence was that his usual job in the participation team did not entail processing rent certificates. He had a “deemed capability” to assess rent certificates for only Newstart allowance and youth allowance matters. As regards rent certificates for other types of pensions, he had received no training. If he were to do those other types of matters they would automatically be referred for online checking (“QOL”), whereas his “deemed capability” matters were, like everyone else’s, subject only to spot checks. Ms Fisher was unaware of Mr Lambert’s limited “deemed capabilities” at the time.
26. Ms Fisher said that, when Mr Lambert’s failure to process rent certificates at the counter had been brought to her attention, she went to talk to him about it. Ms Fisher thought Mr Lambert objected to being told what to do, and, in her statement said he seemed “reluctant and resistant”, although he “appeared to acquiesce”. In her evidence she said he appeared “annoyed” and “agitated”. She did not have an expectation that he would process the two rent certificates that had been returned to him, but agreed he did not actually say that he would not do them. In any event, given a continual stream of customers, she doubted that he would have had the opportunity to attend to them.
27. Mr Lambert’s evidence was that he thought he did in fact process Newstart allowance and youth allowance rent certificates at the counter, but that he told Ms Fisher that he did not feel confident about doing the others. He said he told her it was not a good idea, nor was it “fair and efficient to the customers”. His concern was that he might mislead the customers. Ms Fisher said that even had she known of his limited “deemed capabilities", she was prepared to take the risk that if a customer had been told of their entitlement and subsequent QOL checking showed that they in fact had a lesser entitlement, then the expectation of the customer might be frustrated. If Mr Lambert had done them incorrectly, she would not have taken any action against him because she did not know what action could be taken. Mr Lambert, however, said that Ms Fisher and the manager, Ms Fitzgerald, had “heavied” him, in a way he found threatening and intimidating, saying the work needed to be completed by the end of the day and everything had to be right and if anything went wrong with them then he would be “in trouble”, although he conceded the words “in trouble” were not used.
28. In her evidence, Ms Fisher said that when she had discussions with Mr Lambert about his work practices he would become very defensive. Prior to 8 October 2004, Ms Fisher’s only discussion with Mr Lambert about his work performance was when he had taken 1½ hours to conduct a “diary interview”, at a time when she was waiting for him to undertake lunchtime relief duties on the front counter. She spoke to him at the time because she then had to find someone at short notice to fill in for him. Mr Lambert’s evidence was that it was never conveyed to him that diary interviews were only supposed to take 10 minutes. His evidence was that, as with all staff, his diary interviews run over 10 minutes infrequently, and only as necessary. Diary interviews, Ms Fisher agreed, can take longer than 10 minutes, depending on the circumstances.
29. No issue was raised in the letter about diary interviews.

LANGUAGE AND REFUSAL TO RETURN TO WORK

30. The letter also noted that Mr Lambert’s language was “totally inappropriate”. It said that it would constitute a breach of Centrelink's Shared Behaviours and the APS Code of Conduct. The letter also noted that Mr Lambert’s reasons for refusing to return to work were unacceptable.
31. According to the letter, during the telephone conversation after lunch Mr Lambert had sworn and was “verbally abusive”.
32. Mr Lambert said he had phoned Ms Fisher and told her he was sick. In his evidence he said that while on counter duties he was verbally abused by a customer for not being able to provide an instant answer to a question about rental assistance. He had had enough of being hassled by customers and enough of Ms Fisher (and Ms Fitzgerald, the manager) being “snarly”. He was stressed and did not want to be told off or risk telling someone off. In his claim form he wrote that he spent about two minutes on the phone and said that he had “had enough for one day”. In his evidence he continually contextualised the events by noting that he had come in on his flex day. He did not feel appreciated for having given up his flex day.
33. Ms Fisher said he was “quite hysterical, very distressed, very overwrought” when speaking to her on the telephone. He was unhappy at being told what to do, especially as he had come in on his flex day. He also mentioned that he discovered at lunchtime that he had additional expenses in repairing his car.
34. Ms Fisher said he swore “repeatedly” and thought he would be likely to be abusive to the first customer he saw. In her notes she wrote that he had said he would get a “f...ing medical certificate” and would tell the first customer he saw to “get f...ed”.
35. Mr Lambert vehemently denied that he had sworn as Ms Fisher alleged, stating only that he had said “the whole world could go and get f....d”. His evidence was that he had only said that the first customer to tell him off – he would tell off right back. Ms Fisher said that his version was not correct, and she relied on her contemporaneous notes as to precisely what had occurred.
36. Ms Fisher agreed that she used “the F word” herself from time to time but not “towards a figure of authority”. Ms Fisher conceded that Mr Lambert‘s language was not directed at her.

FUTURE CONDUCT AND CONCLUSION

37. The letter set out “acceptable alternative practices”, which Mr Lambert would be expected to comply with in the future.
38. The letter concluded by stating that Mr Lambert’s behaviour on 8 October 2004 was “unacceptable” and in breach of Centrelink's expectations and Shared Behaviours, and that “should there be any repeat of such behaviour then formal code of conduct action will be taken”.
39. Ms Fisher said she did not know what the formal code of conduct action would have been.

CONSIDERATION

40. The Respondent’s submissions relied, as I have said, on the definition of “disciplinary action” in Chenhall: that the action – in this matter, the sending of the letter - need only be one to promote discipline. The definition of “discipline” was recently considered in Sydney Harbour as having “connotations of controlling behaviour rather than assisting the promotion of effective and efficient behaviour”. The distinction may be a fine one.
41. Chenhall went on to the effect that disciplinary action is not taken until such time as a determination is made to take action to discipline the employee in accordance with the disciplinary regime. In the present case there was not, at the time the letter was written, any determination to take such action against Mr Lambert. This is also not a matter like Eames, where an investigation of conduct was found to be disciplinary action even though it was subsequently decided to take no action against the employee. Here there had been no investigation. I do not even think the matter is like Re Carson v Comcare (AAT 13150, 3 August 1998), where the procedure undertaken was to ascertain if the employee should be dismissed on the ground that he was not able to effectively discharge the requirements of his position. The letter was a step somewhat in advance of that process.
42. The matter is more like Re Quarry v Comcare ( 1997) 47 ALD 113 where counselling sessions with the applicant were characterised as preliminary discussions in circumstances where the applicant’s superiors were attempting to assist her and to assess what action was appropriate (cf Re Choo v Comcare [1995] 39 ALD 399). In the present matter a counselling session was not even scheduled until 10 November 2004. The HR manager drafted the letter addressing “HR’s concerns” about Mr Lambert’s behaviour, setting out what was acceptable and saying that there was a need for further discussion.
43. I consider that the letter was a ‘step anterior to the decision to take action’ (per Eames) in that it sets out what Mr Lambert should aim to achieve in order to properly carry out his role.
44. In coming to that view I especially note the letter of 30 September 2005 from Anne Wiltshire, Centrelink HR Program Manager, addressed “to Whom it may concern” that:

It is part of the Team leaders’ responsibilities to provide employees with regular and honest feedback and undertake formal performance management processes with employees. [emphasis added]

45. I find that the letter was honest feedback; and that it foreshadowed further discussion.
46. Even if I were wrong in this regard, and the letter is properly characterised as ‘disciplinary action’, I do not consider such action to be reasonable. As to the “team protocols”, Mr Lambert was asked to undertake a full time role he had not undertaken in years. Ms Fisher gave evidence of his diligence and she was unaware of his physical limitations which might have slowed his output if writing was required. Mr Lambert was unaware of a new procedure that rent certificates were to be processed at the counter. He was asked to undertake tasks, i.e. other pension rent certificates, with which he was unfamiliar. Ms Fisher agreed that, given the steady stream of customers, he would have had difficulty finding time to process them at the counter anyway. Further, I accept his evidence that he may even have actually processed some.
47. As to the language he used in the telephone conversation of 8 October 2004, it was common ground that Mr Lambert did not direct his abuse at Ms Fisher. There was no evidence that she was offended by what he had said; indeed it was language she used herself. Her evidence was that it provoked concern in her as to his health. I accept that Mr Lambert’s temporary elevated stress level at the time, occasioned by his being subject to abuse at the counter, the work requirements on the day (discussed above) and his car repair issues, motivated his concern that he might offend customers should he return to work. In this regard, I note again Ms Fisher’s evidence of his diligence, and the evidence that Mr Lambert’s attendance at the office that day at all was as a favour to Ms Fisher.

CONCLUSION

48. In summary, I consider that Mr Lambert’s condition was not suffered as a result of any reasonable disciplinary action.
49. Sydney Harbour discussed the difficulty in distinguishing between what is disciplinary and what is managerial conduct. As discussed at the hearing, the Act was amended so that the exception within the definition of injury now extends to "reasonable administrative action": s 5A of the Act. However, these amendments have no effect on the present matter.

DECISION

50. Section 14 of the Act is applicable to the injury suffered by Applicant and he is entitled to compensation under the SRC Act. The decision under review is set aside.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ...............[sgd].................................................................

Associate

Date/s of Hearing 24-25 November 2008

Date of Decision 12 January 2009

Applicant self-represented

Counsel for the Respondent Mr G Johnson

Solicitor for the Respondent Mr J Pinder, DLA Phillips Fox