Wednesday, 23 September 2015 3:38pm
A worker's mentor acted reasonably in making comments about her appearance and the impression it gave about her work attitude, the Federal Court has found in rejecting the worker's psychological injury claim.
Justice Michael Wigney found the mentor's comments were made "in the context of discussions concerning [the worker's] work performance", and the worker's appeal against an AAT decision on the matter didn't identify errors of law.
In 2009, the Department of Sustainability, Environment, Water, Population and Communities executive level 1 officer suffered a work-related physical injury, which developed into a chronic pain condition and resulted in secondary depression and anxiety.
The worker then claimed that comments an "informal mentor" made to her at an August 2012 meeting aggravated her psychological conditions.
In seeking workers' compensation, she told the AAT last year that the comments included:
She said the mentor made further negative remarks about her physical appearance a week later, and that when she returned to work in February 2013 after two months' leave she was asked to process her own performance assessment, which had been downgraded from "satisfactory" to "not performing" by her supervisor.
The AAT found the worker did suffer an aggravation of a psychological injury, but that it was caused by reasonable administrative action taken in a reasonable manner.
Senior Member Robin Creyke said the mentor's comments were "precisely the kinds of comments which could be expected by a mentor in response to discussion about barriers to, and improvements which could be made to, the performance of a person being mentored".
"So in that context and in the context of discussions about performance issues the remarks were not unreasonable," she said.
The worker appealed, arguing such a finding wasn't open to the AAT on the evidence. She also said the AAT had found, without any basis, that the supervisor reasonably downgraded her performance rating based on advice from HR.
But Federal Court Justice Wigney found the Tribunal was entitled to find the supervisor's actions were reasonable.
"Whilst it may be correct that there was no evidence of the content of the advice given to [the supervisor], that does not provide a proper basis to challenge the Tribunal's findings concerning the reasonableness of [her] actions," he said.
Justice Wigney also found it was open to the Tribunal to find the mentor's comments were reasonable in the context of discussions about the worker's performance.
"Whilst [the worker] is, no doubt, aggrieved by these findings of fact and believes that they are erroneous, it nonetheless cannot be concluded that they were entirely unsupported by evidence.
"[Her] submissions to the effect that these factual findings were against the weight of the evidence, or involved a misunderstanding of the evidence, even if correct, rise no higher than alleging an error of fact or a complaint about the merits of the decision," he said in dismissing her appeal.
Gaffey v Comcare [2015] FCA 1024 (15 September 2015)