A former employee of the Australian Taxation Office will receive a payout after succeeding in a bullying claim before the Administrative Appeals Tribunal.
Dimitra Michalopoulos worked in the ATO’s information technology area as a team leader but experienced difficulties and believed she was being bullied and harassed.
Her managers raised performance issues and Michalopoulos became stressed and struggled with anxiety and other symptoms.
She complained to her managers, Radha Sharma and Ahmed Hijazi, and to a harassment contact officer at the ATO but claimed she was seen to be the problem and that no action was taken to address her allegations of bullying and harassment.
Michalopoulos persisted with her work but suffered from psychological symptoms and was certified unfit for work.
The tribunal member found Michalopoulos suffered an injury in the form of a disease, being adjustment disorder.
The member was particularly critical of the failure of the ATO to document the meetings which it claimed took place to address Michalopoulos’ bullying claims.
“I note that there are no contemporaneous records of when these meetings took place, why and how they were arranged, precisely what was discussed and what actions were initiated or taken as a result,” he said.
“If these meeting were truly administrative actions or informal counselling sessions in respect of perceived underperformance by Michalopoulos, one would expect to find some record of them and, in particular, the precise nature of the underperformance, what was done to address it and arrangements for monitoring Michalopoulos’ progress.”
Employment and industrial relations lawyer Peter Vitale told SmartCompany the ATO in relying on the reasonable administrative measures exception had not comprehensively documented the measures that it was relying on to fall outside the definition of what constituted an injury in this case.
“The tribunal member was very critical of Michalopoulos’ managers for essentially saying she was an underperformer and not documenting that in any substantial or specific way,” he says.
“The warning for employers is if you are dealing with difficult personalities in the workplace and people making complaints about co-workers then performance concerns need to be identified and documented.”
The tribunal member was also critical of the “apparent and striking similarities” between the evidence of the two ATO managers, Sharma and Hijazi.
“It is simply inconceivable that the identical passages, attachments, interpretations and omissions are the result of coincidence, and it is disingenuous to hold this out as a serious explanation,” the tribunal member found.
Vitale says the similarities between the evidence of the two managers was “obviously unsatisfactory” and a better approach would have been to sit down and make a common assessment and then document it.
“But there is no point in trying to recreate a scenario that is not done in a contemporaneous way; contemporaneous records are the best records and there is no substitute for it,” he says.
Cara Waters is the editor of SmartCompany. Cara was previously a senior reporter at the Financial Times website FT Adviser in London and has also worked for The Sunday Times.
