Quick and Comcare [2010] AATA 209 (26 March 2010)

Last Updated: 20 May 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 209

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3254

GENERAL ADMINISTRATIVE DIVISION		)
	Re		BARBARA QUICK

Applicant

And

COMCARE

Respondent

CORRIGENDUM

Tribunal Deputy President P E Hack SC

Date 20 May 2010

Place Brisbane

Decision The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to delete the second and third reference to s 5B in paragraph four of the decision and insert s 5A.

.............Signed....................
Deputy President

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 209

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3254

GENERAL ADMINISTRATIVE DIVISION		)
	Re		BARBARA QUICK

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 26 March 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..............Signed.................
Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – entitlement to compensation – employment related injury, disability or disease – condition resulted from reasonable administrative action taken in reasonable manner in respect of employment – condition not an “injury” – decision under review affirmed

PRACTICE & PROCEDURE – practice of authority using statutory powers to obtain personnel history undesirable – preferable to use Tribunal’s summons power

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5B

Saunders v FCT [1988] HCA 29; (1988) 15 ALD 353

REASONS FOR DECISION

26 March 2010

Deputy President P E Hack SC

1. The applicant, Mrs Barbara Quick, is employed by Centrelink as a customer service officer. She is, by all accounts, a very good officer who appears to be held in high regard by the majority of her fellow officers. Indeed, it is appropriate to record that at the outset of the hearing Mr Pappas, counsel for Comcare, conceded that Mrs Quick was a technically proficient and hardworking servant of the public. But despite that, Mrs Quick was the subject of some complaints by fellow employees.
2. On 28 July 2008 Mrs Quick was asked to attend a meeting with her immediate supervisors to discuss these complaints. She attended the meeting but she was so upset by the meeting that she developed significant anxiety which caused her physical symptoms. Mrs Quick was unable to attend her work between 29 July 2008 and 8 August 2008. She returned to work (at a different Centrelink office) on 11 August 2008. Fortunately, she appears to have made a complete recovery.
3. On 1 August 2008 Mrs Quick made a claim for compensation for her condition. Comcare, the respondent to this application, accepts that Mrs Quick suffered from a condition described as “adjustment disorder with anxiety” and that her employment with Centrelink contributed to a significant degree to that condition[1]. But it contends that the condition does not answer the description of “injury” in the Safety, Rehabilitation and Compensation Act 1988 (Cth) because of the exceptions to that definition.
4. For the purposes of the SRC Act a “disease” is defined in s 5B as an ailment suffered by an employee, or 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. Here Comcare accepts that Mrs Quick’s condition is such an ailment. The definition of “injury” in s 5B of the SRC Act includes both an injury (properly so called) and a disease suffered by an employee,

“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.”

What is encompassed by “reasonable administrative action” is set out in s 5B(2) of the SRC Act in these terms:

“(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.”

5. The issue that falls for determination is whether the events surrounding the meeting of 28 July 2008 amount to reasonable administrative action taken in a reasonable manner in respect of Mrs Quick’s employment.
6. Four people took part in that meeting. They were Ms Margaret Weertman, then the office manager of the Centrelink Caboolture office, Ms Elisa Barefoot, then a team leader and direct supervisor of Mrs Quick, Mrs Quick and Ms Maree Clarke a Centrelink social worker who was Mrs Quick’s support person at the meeting.
7. The meeting was called because Ms Weertman had been informed by Ms Barefoot and by another team leader, a Mr Robertson, that complaints had been made to them by staff members about Mrs Quick’s manner with some of the staff. The essence of the complaints, as Ms Weertman described them in evidence, was that, on occasions, Mrs Quick exceeded her authority with other staff, was demanding of staff, was critical of other staff and spoke abruptly or impatiently. Ms Weertman discussed the matter with Ms Barefoot and determined that the best approach would be to raise these matters at a meeting with Mrs Quick in an informal setting, that is, without following the more formal procedures that might be required for an investigation of suspected breaches of the Australian Public Service Code of Conduct.
8. On 28 July 2008 Ms Barefoot approached Mrs Quick at her desk and asked her to attend a meeting in Ms Weertman’s office the following day. There is controversy about the terms of that invitation however I need not resolve that as I accept that the request was conveyed in a reasonable manner on either account of the conversation. But Mrs Quick did become upset about being asked to attend the meeting. Either as part of the invitation or in response to Mrs Quick’s apparent upset, Ms Barefoot suggested she might bring a support person to the meeting. Again it matters not, in my view, which of those two possibilities it was.
9. In the course of that conversation, or shortly thereafter, Mrs Quick sought to have the meeting conducted that same day. That request was acceded to and the meeting took place on the afternoon of 28 July 2008.
10. A record of discussion was prepared by Ms Weertman shortly after the meeting and Ms Barefoot and Ms Clarke were given an opportunity to make corrections to it. Mrs Quick was not given that opportunity because she was away on leave in the immediate aftermath of the meeting and then went to work at another Centrelink office. Mr Pappas sought to make something of the fact that when Mrs Quick was finally provided with a copy of the document she did not then protest what she regarded as inaccuracies in it. In the result I do not regard any differences as of any consequence but I observe, in fairness to Mrs Quick, that she was not asked, as Ms Barefoot and Ms Clarke were, to make corrections to the document when it was sent to her. However I am satisfied that the record of the discussion is sufficiently accurate for present purposes. It does not purport to be a verbatim record of what took place and generally Mrs Quick agrees with its contents.
11. After an introduction in which Ms Weertman described the purpose of the meeting as “to talk about complaints from some staff members about the way [Mrs Quick] has been dealing with them” both Ms Weertman and Ms Barefoot acknowledged Mrs Quick’s many strengths. They then outlined the complaints by giving nine particular instances. Mrs Quick responded to the complaints in a way that she regarded as demonstrating that there was no substance in them. The meeting concluded on the note that Ms Barefoot, who was quite friendly with Mrs Quick, might “coach” her on relationship building.
12. Comcare contends that the meeting and the circumstances of its calling constituted either a reasonable counselling action taken in respect of Mrs Quick’s employment or a reasonable appraisal of her performance and that it was undertaken in a reasonable manner. As will appear I agree.
13. There is no doubt that Mrs Quick is a very competent and very efficient employee. She has from all accounts an excellent grasp of the technical requirements for her work. But she has, if I may say so from my own observations, a somewhat dogmatic nature. I can readily conceive that Mrs Quick’s efficient and knowledgeable manner might be off-putting to some people, that persons with a lesser grasp of the technical requirements might perceive her to be abrupt or impatient or might perceive criticism in the way in which she spoke to them. But I am not presently concerned to decide whether there was any merit in the complaints made about Mrs Quick. As it seems to me it is enough for me to be satisfied, as I am, that complaints about Mrs Quick’s manner with staff were conveyed to Ms Weertman. In these circumstances it was entirely appropriate for her to call a meeting involving Mrs Quick, Mrs Quick’s immediate superior and, as Mrs Quick desired, a support person to discuss the complaints that had been received. Equally I am satisfied that Ms Weertman reasonably and genuinely believed that it would be best to undertake that process on an informal basis by seeing whether the complaints could be dealt with by speaking informally with Mrs Quick. Ms Weertman was not investigating matters of allegation and counter-allegation; she was trying to persuade a valued employee to make some moderate changes to her approach to other staff.
14. There are some aspects of the meeting on which I would make comment. The first is that the notes of the meeting suggest to me that Ms Weertman and Ms Barefoot accepted the underlying thrust of the complaints, that is to say, the matters concerning Mrs Quick’s manner of speaking to other staff. I do not think that they were wrong to do so. In matters of this nature a supervisor is ordinarily obliged to hear both sides of a dispute before making a decision. So much is trite. But where the underlying complaint is as to the manner of the employee’s dealings with others, and the decision maker is conscious of those shortcomings, a discussion predicated on the existence of those shortcomings does not seem to me to be unreasonable.
15. The other comment I would make about the meeting is that the format of the meeting involved conveying instances of the underlying conduct rather than, as I would think would be preferable, outlining the particular traits of which complaint was made. That is to say it might have been preferable had Mrs Quick been told at the outset of the behaviours complained of. That is, that on occasions she exceeded her authority, on occasions was demanding of staff and such like and that the particular instances be given as examples of that conduct. The format of the meeting that was adopted appears to me to have encouraged Mrs Quick to the belief that it was sufficient for her to answer each instance to demonstrate the absence of substance to the complaint. Because of this Mrs Quick appears to have missed the thrust of the complaints because she was satisfied that she had answered them adequately.
16. But I accept, as Mr Pappas submitted, that the fact that the action could have been done better or that others might have done it differently does not mean that it was not done reasonably.
17. Mrs Quick made a number of criticisms of the meeting that she said prevented it from amounting to reasonable administrative action undertaken in a reasonable manner. First, she submitted, Ms Weertman had not spoken to the persons said to have complained in order to satisfy herself of the fact of the complaint and whether it had apparent merit. I do not accept that that is a valid criticism. Ms Weertman was entitled to act on the information brought to her by the two line managers; she was not obliged to make her own enquiries of staff who had complaints, all the more so when she wanted to handle the matter informally.
18. Next, Mrs Quick says that she was not adequately informed of what she was said to have done with the consequence that she was unable to respond adequately. I accept, as I have indicated, that there was a slight flaw in the manner in which the complaints were conveyed to Mrs Quick however I am unable to accept that that had the consequence that Mrs Quick was not able to adequately answer the complaints. The record of the meeting shows that Mrs Quick had an answer, and one that she regarded as adequate, to each of the particular complaints made.
19. Then it is said that Ms Weertman was wrong to have acted on complaints from Mr Robertson because she knew, or ought to have known, that he had only been at the Caboolture office for a few days, and thus could not have been in a position to know of complaints. Moreover, it was said, Ms Weertman ought to have been more circumspect in accepting complaints from him because he and Mrs Quick had had an earlier falling out. Neither of these matters, if true, would warrant someone in Ms Weertman’s position not accepting at face value complaints made. That seems to me to be particularly so where another team leader was bringing similar complaints and where the nature of the complaints went to the manner of dealing with staff, a matter on which Ms Weertman had, and was entitled to have, her own views informed by her own observations.
20. Mrs Quick complains of the way in which she was informed of the meeting. She says that it ought to have been done more informally than her being told that she was required to attend a meeting in the manager’s office the following day. The flaw in the argument is that it relies upon the response to determine unreasonableness. That is not a correct approach. All but the most stoic (or perhaps uncaring) employee might be expected to be upset at being told of the fact of complaints and requested to discuss the complaints in the manager’s office. But it is, in my view, quite reasonable to do so. It might even be regarded as unreasonable not to tell an employee in advance of the purpose of such a meeting.
21. Finally Mrs Quick says that the process adopted was neither a formal process nor an informal process, it combined features of both types of process. I regard the proper characterization of the meeting as one that was informal in nature but one that was required to be undertaken seriously. But that does not make it unreasonable. It was a perfectly reasonable way to convey a serious message to Mrs Quick in a manner that was designed to cause her the least amount of distress whilst, at the same time, acknowledging her undoubted strengths.
22. I am then satisfied that the condition of which Mrs Quick complains resulted from reasonable administrative action taken in a reasonable manner in respect of her employment. Thus it does not fall within the definition of “injury” in the SRC Act and the decision under review must be affirmed.
23. I wish finally to remark on what seems to me to be an undesirable practice that was adopted by Comcare in this case. Some time before the hearing, Comcare used its powers under the SRC Act to oblige Centrelink to produce to it Mrs Quick’s personnel file. I gather that the file was then provided to the legal representatives of Comcare. Matters from that file in 2000, 2002 and 2004 were, or were proposed to be, the subject of cross-examination of Mrs Quick. In the course of the hearing, for the reasons that I gave at the time, I ruled that that cross-examination was irrelevant. I want however to record that I think the practice of Comcare using its statutory powers in cases such as the present to obtain an applicant’s personnel history is most undesirable.
24. Obviously the considerations that apply when proceedings are on foot in the Tribunal are quite different to the position where proceedings are on foot in a court[2] and I do not suggest that Comcare lacked power to seek the records. However it seems to me that it is, at least, preferable that a respondent, wishing to obtain documents for the purposes of a hearing, do so by using the Tribunal’s summons power rather than its own power to oblige the production of documents. In that way the party whose documents are in issue will at least have an opportunity to object to the production of documents and the inspection by the other party.
25. But more importantly for present purposes, Mrs Quick’s employment history as recorded in her personnel file could not have had any conceivable relevance to the issues in this case. The single issue was whether the steps taken by Ms Weertman and Ms Barefoot constituted reasonable administrative action in a reasonable manner. No question of the conduct of Mrs Quick as an employee, a fortiori going as far back as the year 2000, arose for consideration. It was in my view particularly insensitive, and most intrusive, on the part of Comcare to have used its powers to obtain Mrs Quick’s personnel file and make it available to its legal advisers.
26. The publication of these reasons has been delayed to enable Comcare to make submissions about the desirability of the course adopted in obtaining Mrs Quick’s personnel file. I have read the submissions provided. They do not alter the views that I have expressed. I accept that it was perfectly lawful for Comcare to use its powers in the way it did; I only question the need to do so in this case.
    

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .............Signed.......................................................

Associate

Date of Hearing 16 February 2010

Date of last submissions 12 March 2010

Date of Decision 26 March 2010

The Applicant Self-represented

Counsel for the Respondent Mr Pappas

Solicitor for the Respondent Australian Government Solicitor

---

[1] Respondent’s Statement of Facts, Issues & Contentions at paragraph 20.

[2] Saunders v FCT [1988] HCA 29; (1988) 15 ALD 353