Adam and Comcare (Compensation)

[2017] AATA 1507

Adam and Comcare (Compensation) [2017] AATA 1507 (15 September 2017)

Division:GENERAL DIVISION

File number:           2016/0392

Rowena Adam

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr James Popple, Senior Member

Date:15 September 2017

Place:Canberra

Comcare’s decision on 9 December 2015 is affirmed.

........................................................................

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — Applicant suffered psychological condition as result of e-mail from supervisor and discussion with second-level supervisor — whether e-mail and discussion were reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment — decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14

CASES

Comcare v Martin (2016) 258 CLR 467

Comcare v Martinez (No 2) (2013) 212 FCR 272

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

Domburg v Nurses Board of Victoria [2000] VSC 369

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Lim v Comcare (2017) 154 ALD 413

Magro and Comcare [2013] AATA 938

Radulovic and Comcare (2010) 120 ALD 311

REASONS FOR DECISION

Dr James Popple, Senior Member

15 September 2017

Summary

1. The applicant worked for the Department of Defence (the Department).  She was responsible for performing a particular task.  Her first-level supervisor sent her an e-mail, confirming a deadline for the applicant to complete the task.  But, in the e-mail, the first-level supervisor also explained why she was not satisfied with the progress that the applicant had made on the task, and made suggestions about how the applicant could undertake such tasks in future.  The next day, the applicant had a discussion with her second-level supervisor.  During that discussion, her second-level supervisor confirmed the deadline.  He also raised concerns about the applicant’s performance, and made suggestions about how the applicant could improve her performance.

2. Comcare concedes that the applicant suffered a psychological condition which was contributed to, to a significant degree, by her employment by the Department. And Comcare concedes that her condition is a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

3. The applicant says that her disease was caused by the imposition of the deadline.  Comcare says that the disease was caused by the e-mail that the applicant’s first-level supervisor sent her, and by the discussion that the applicant had with her second-level supervisor.

4. The deadline, the e-mail and the discussion were all causes of the applicant’s disease. The applicant would not have suffered her disease if she had not received the e-mail or not participated in the discussion. The e-mail and the discussion were both reasonable informal counselling actions taken in respect of the applicant’s employment with the Department. Each was reasonable administrative action taken in a reasonable manner for the purposes of s 5A of the SRC Act. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.

   Background

5. Mrs Rowena Adam was, and is, employed by the Department.  On 21 July 2015, she made a claim for workers’ compensation.[1]  She claimed that she had suffered anxiety, which had been caused by “[m]eetings, emails and tasking directions from first and second level supervisors”.

   [1]     Mrs Adam completed the first part of the claim form on 26 June 2015.  It would appear that she provided the claim form to the Department on 20 July, and that the Department completed the second part, and forwarded the form to Comcare on 21 July 2015.

6. On 18 September 2015, Comcare denied her claim.  Comcare agreed that Mrs Adam suffered a psychological condition which was significantly contributed to by her employment.  But Comcare said that her condition had arisen as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.  Accordingly, Comcare said, it was not liable to pay her compensation.

7. On 16 October 2015, Mrs Adam requested a reconsideration of that determination.  On 9 December 2015, Comcare affirmed its determination.

8. On 26 January 2016, Mrs Adam applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

   Decision under review

9. The decision under review is Comcare’s decision on 9 December 2015 affirming its determination that Comcare is not liable to pay compensation to Mrs Adam.

   Issue

10. Comcare concedes that Mrs Adam suffered a psychological condition which was contributed to, to a significant degree, by her employment by the Department. That means that her condition is a “disease” as defined in s 5B of the SRC Act.[2]

    [2]     Mrs Adam called her condition “anxiety”; Comcare called it “adjustment reaction with anxious mood”.  Nothing turns on this.

11. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.

12. The issue in this review is whether Mrs Adam’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14.

    People involved

13. Three people were involved in the events relevant to this review:

    ·Mrs Adam who was, at the time, a contracting officer in the Procurement and Contracting Support Branch of the Department (the Branch);

    ·Ms Jade Nguyen who was a senior contracting officer in the Branch and Mrs Adam’s supervisor; and

    ·Mr Nicholas Plowman who was a chief contracting officer in the Branch and Ms Nguyen’s supervisor.

    All three provided statements, and gave evidence at the hearing.

    Agreed facts

14. I make the findings set out in [15]–[35] below, on the balance of probabilities. These findings are based on the evidence before me, especially the statements made by the people listed at [13] above, and by Mrs Adam’s husband (Christopher), and evidence that they gave at the hearing. These findings are generally agreed between the parties.

15. The Branch provided assistance, on the contracting component of tenders, to areas of the Department involved in tendering.  Other areas of the Department also had responsibilities relating to the review and evaluation of responses to tenders, with particular regard to (for example) financial or engineering issues.

16. In 2014 and 2015, the Department conducted a tender for “wideband satellite support” (the WSS tender).  The WSS tender was managed by a collection of staff of the Department, referred to (within the Branch, at least) as “the Project”.  The Project included an evaluation committee.[3]

    [3]     It is not clear to me, but it may be that the Project comprised the evaluation committee.

17. Within the Branch, Mrs Adam was generally responsible for tenders relating to satellite communications.  She was involved in the development of the request for tender for the WSS tender.  The Branch was responsible for providing assistance to the Project on the contracting component of the evaluation of the responses to the WSS tender (the WSS evaluation).

18. The Department received eight responses to the WSS tender.  In late November, the Project decided to evaluate three of those responses.  Mrs Adam, Ms Nguyen and Mr Plowman all disagreed with that decision.  Mr Plowman suggested to the Project that all eight responses be evaluated.

19. In December 2014 and January 2015, two additional staff were assigned to the WSS evaluation.  The additional staff were supervised by Ms Nguyen or another person at her level (EL1).[4]

    [4] This is the same person at EL1 level referred to at [29] below.

20. On 23 December 2014, Mrs Adam sent an e-mail to Ms Nguyen and Mr Plowman.  Mrs Adam was about to go on leave until 12 January 2015, and her e-mail summarised the status of various tasks.  In relation to the WSS evaluation, Mrs Adam reported that one of the additional staff was “drafting a spreadsheet outlining all evaluation issues for contracting” and would continue to do so after the Christmas break.  She said that it was hoped that the Project would consider preliminary evaluation reports, and identify a preferred tenderer, in “mid-January”.

21. At some time in December 2014 or January 2015, the chair of the evaluation committee decided that all eight responses to the WSS tender would be evaluated, not just three of them.  On 12 January 2015, Mr Plowman sent Mrs Adam an e-mail indicating that he anticipated that all eight would “proceed to detailed evaluation”.  He added: “I’d like for [the Branch] to complete [a] preliminary evaluation by Wednesday next week”—that is, by 21 January.  Later on 12 January, the chair of the evaluation committee sent an e-mail formally advising of his decision (that all eight responses would be evaluated) to, amongst others, Mrs Adam and Mr Plowman.

22. On 15 January, Mr Plowman asked Mrs Adam to do some research and make some recommendations about advice that Mr Plowman had been asked to provide about a contract, unrelated to the WSS tender.  This was known as the 5A task.  Mr Plowman indicated that he was hoping to finalise that advice by the end of January.

23. On 21 January, Mrs Adam met with the two additional staff.  They discussed the WSS evaluation.  Later that day, one of the additional staff e-mailed Mr Plowman a set of evaluation notes and assessment matrices for the WSS tender.  Mr Plowman e-mailed Mrs Adam, asking her whether she had reviewed those notes and was happy with them.  The next morning, Mrs Adam replied:

    I’ve reviewed both sets of evaluation notes and provided a set of comments back to both [the additional staff] outlining both my comments on their evaluation and additional issues I noted from my evaluation.  These versions incorporate this review, however I haven’t yet had a chance to check the updated versions.

    [The additional staff] and I also sat down yesterday to ensure our treatment of each tenderer and standard of evaluation is the same for all 8 tenderers.

    At present, I think these documents are at a stage where your input and further guidance would be helpful, however if you would like me to conduct a further review on the updates before you do so, I can do this too.

24. On 23 January, Ms Nguyen sent Mrs Adam an e-mail:

    Thanks in advance for progressing the WSS evaluations next week.

    As discussed in our meeting,[5] can you please:

    [5]     It is not clear to me when this meeting happened, though it was probably on 22 or 23 January 2015.

    ·finalise your review of the WSS evaluation, including adding any additional evaluation issues that you have found;

    ·commence drafting an evaluation report (with a draft report ready for my initial review by Friday 30 Jan); and

    ·ensure that the evaluation report and assessment matrices are consistent in content (including that the non-compliances have been assessed consistently) and in presentation.

    Also, can you please touch base with the project to find out how they are progressing with their evaluations, and if they have any clarification questions that need to be sent.

    …

    In addition to the WSS evaluations, as mentioned by [Mr Plowman] in the team meeting, we will also need to complete the [5A task] by the end of January.

    Ms Nguyen was about to go on leave for a few days.  She added:

    [Mr Plowman] is happy for you to seek guidance from him at any time (and also in my absence) so please don’t hesitate to go to him if you have any questions or concerns.

    I am also in town so you can ring my work mobile if you have any issues that you would like to discuss with me.

25. On the afternoon of 2 February (a Monday), Mrs Adam and Ms Nguyen had their regular fortnightly meeting.  Mrs Adam brought to the meeting a hardcopy draft of the WSS evaluation report (the report).  She and Ms Nguyen discussed the draft report.  (There is some dispute about whether Mrs Adam “provided” the draft report to Ms Nguyen at this meeting: see below.)[6]  The draft report had been based on a template, and Mrs Adam said that she found its structure hard to follow.  Ms Nguyen suggested that Mrs Adam look at some specific recent examples of completed evaluation reports and assessment matrices to assist her in finishing the draft report.  (There is some dispute about whether this amounted to a change or an increase in tasking: see below.)[7]

    [6] See [42] below.

    [7] See [43] below.

26. At 3:38 pm on 3 February (a Tuesday), Ms Nguyen sent Mrs Adam an e-mail about three tasks that they had discussed the day before.  In her e-mail, Ms Nguyen said that she had confirmed details of those tasks, and their deadlines, with Mr Plowman.  Her e-mail:

    ·noted that another person would be assigned the 5A task, and asked Mrs Adam to provide that person with a “written handover” about the 5A task by lunchtime on 4 February—the next day;

    ·noted that the deadline for the preparation of a particular presentation was 11 February; and

    ·asked Mrs Adam to “provide the WSS evaluation report (and assessment matrices) to [Ms Nguyen] by lunch time on Thursday [5 February—two days later] for [Ms Nguyen’s] review”.

27. Eight minutes later, Mrs Adam e-mailed Ms Nguyen.  She said that, given that the evaluation was of eight tender responses, and given the other tasks for which she was also responsible, it was likely that she would not be able to meet the 5 February deadline for the report and assessment matrices.  She asked Ms Nguyen: “do you want the report (and matrixes) regardless of where I am up to, or would you like me to finish first?”

28. At 5:45 pm, Ms Nguyen replied by e-mail.  I will call this the e-mail.  In the e-mail, Ms Nguyen said that she and Mr Plowman were of the view that the timeframes she had set were reasonable, and confirmed that she wanted Mrs Adam to provide the handover information by lunchtime on Wednesday, 4 February, and the report by lunchtime on Thursday, 5 February.  She said:

    With your other tasks, I think that the timeframes that you’ve been given are reasonable and that the tasks are achievable without you needing to work additional hours.  The WSS evaluation activity kicked off in October 2014 and you have always had responsibility for the WSS evaluation and you have had oversight of the WSS evaluations since they commenced.  Additionally, you have known about the increase from 3 to 8 tender evaluations since your return to work this year.  [Mr Plowman] had previously asked you to provide a preliminary report by 21 January, however [he] was only provided with evaluation spreadsheets/notes (which was drafted by [the additional staff] and reviewed by yourself).  I had also requested that you provide a draft report for my initial review by 30 Jan 15 which I haven’t yet received.

    (Mrs Adam disputes some of these assertions: see below.)[8]

    [8] See [36]–[43] below.

29. The e-mail also detailed why Ms Nguyen was of the view that other tasks for which Mrs Adam had responsibility “shouldn’t take up too much of [Mrs Adam’s] time” and were “‘business as usual’ activities”.  She continued:

    If, in future, you have difficulty completing tasks I would appreciate it if you can provide me with an update on your progress so that the workload can be managed appropriately and so I can ensure client requirements are met.  As previously noted to you, both [Mr Plowman] and myself expected that the draft WSS report and 5A tasks would have been completed by end of Jan.  We expect that everyone in the team can manage these more significant tasks as well as “business as usual” activities …  We also expect that team members will provide [Mr Plowman], [a person at Ms Nguyen’s level (EL1)] or myself sufficient time to be able to review CO’s work[9] before clearing the work/advice back to clients.  …

    Again, I would like to reiterate that [Mr Plowman], myself and [the other EL1] are all happy for you to seek guidance from us if you have any questions or concerns or need any assistance in ensuring you have captured all the issues, and that we have always been available to provide you with support.

    Mrs Adam had left work for the day before Ms Nguyen sent the e-mail.  Mrs Adam did not read the e-mail until she returned to work the next day (4 February).

    [9]     I take “CO’s” to mean “contracting officers’”.

30. On the morning of 4 February (a Wednesday), Mrs Adam read the e-mail, then phoned her husband.  He thought that she sounded anxious.  She told him that she felt “sick in her stomach”.  In a statement that she later provided to Comcare in support of her claim,[10] Mrs Adam said that she was “extremely distressed by [the] e-mail”.

    [10]    31 July 2015.

31. At about 8:00 am, Mrs Adam approached Mr Plowman in his office.  They had a discussion, which I will call the discussion.  (Ms Nguyen was not at work, as she did not work on Wednesdays.)  The discussion lasted between 10 and 30 minutes.[11]  During the discussion:

    [11]    Mr Plowman says the discussion lasted about 10 minutes; Mrs Adam says it was about 30.  Nothing turns on this.

    ·Mrs Adam told Mr Plowman that she did not like the tone of the e-mail.  She said that the e-mail inferred that she was not pulling her weight within the team.  Mr Plowman said that he did not have any concern about the tone of the e-mail.

    ·Mr Plowman raised concerns that he had about Mrs Adam’s performance.  He said that, on recent occasions, she had not met deadlines.  He said that he had a perception that she was not managing her time at work effectively.

    ·Mr Plowman said that, on numerous occasions, he had observed Mrs Adam engaging in discussions with other staff that were not work-related.  He also raised concerns about what he characterised as Mrs Adam’s personal use of the internet during work hours.

    ·Mrs Adam told Mr Plowman that she had been performing some tasks for the social club.  Mr Plowman told her that he wanted her to stop performing those tasks.

    ·Mr Plowman raised concerns about Mrs Adam’s writing style.  He referred to a particular minute that Mrs Adam had prepared, which Mr Plowman said was too verbose and contained spelling errors.  He told Mrs Adam to review her work more thoroughly.

    ·Mr Plowman told Mrs Adam that, in his view, she should be more proactive in her work, and should seek interim feedback from him or Ms Nguyen at an earlier stage in her work on given tasks.

    ·Mr Plowman said that he and Ms Nguyen were concerned that Mrs Adam had not progressed the 5A task since mid-January, and that Mrs Adam had not finished the report.

    ·Mrs Adam said that she needed more time to complete the report.  Mr Plowman said that he and Ms Nguyen both felt that she had been given sufficient time to complete the report.

    (Mrs Adam disputes some of Mr Plowman’s assertions, though she does not dispute that he made them during the discussion.)[12]

    [12]    Mrs Adam also says that she raised other issues and concerns during the discussion.  That may be true, but I think I have made findings (at [31]) about all of the things that were said during the discussion that are relevant to the issue in this review.

32. After the discussion, Mrs Adam returned to her desk.  She rang her husband again.  She told him that Mr Plowman completely lacked any empathy about how the e-mail had made her feel, and had been dismissive of her claims that the e-mail had made her feel very stressed.  She prepared a written handover for the 5A task, and spoke to the person who was newly responsible for it.  Then she sent her husband an e-mail with her account of the discussion she had had with Mr Plowman.  She felt that Mr Plowman had ignored her concerns, and had imposed (or confirmed) an unreasonable deadline on her.  Then Mrs Adam worked on the report.

1. Mrs Adam worked for 9¾ hours on 4 February, without a lunch break.  The relevant collective agreement in force at the time stated that “[a]n employee shall, unless extraordinary operational circumstances prevail, take a break of at least 30 minutes after working for five hours”.[13]  Ms Nguyen did not know how long Mrs Adam had worked on 4 February until Mrs Adam submitted her attendance diary for approval by Ms Nguyen a few weeks later.  (As noted above, Ms Nguyen did not work on 4 February.)  On 12 March, Ms Nguyen e-mailed Mrs Adam, noted that she had worked those 9¾ hours without a break on 4 February, and asked her to ensure that, in future, she took a break after five hours of work, in accordance with the collective agreement.

   [13]    Defence Enterprise Collective Agreement (DECA) 2012–2014, paragraph F1.2.

2. When Mrs Adam returned home on 4 February, she burst into tears.  She cried, on and off, throughout the evening.  When she woke up the next day, she started crying again.  She saw her general practitioner (GP).  Her GP’s notes from that consultation include:

   History:

   very upset, distressed, crying

   unable to sleep at night, hair loss

   jittery

   … has been facing difficulties at work

   her boss and supervisor have been targeting her for nothing

   feels it is very personal

   they keep blaming her for things she has not done or keep picking at her

   she has tried to manage the situation on her own for 1–1.5 yrs but now at a breaking point

   yesterday she tried asking them to move a deadline and supervisor was very rude and refused to do it, she had to sit in office for 9 hours to do it …

   Management:

   time off work

   psychological support advised[14]

   [14]    Some spelling errors corrected.

3. Mrs Adam was on leave from 5 to 9 February.  While Mrs Adam was on leave, Ms Nguyen accessed a draft copy of the report from the Department’s records management system.  She reviewed the report (she had not previously reviewed it); Mr Plowman reviewed one of the assessment matrices.  On 9 February, Ms Nguyen sent an e-mail to Mrs Adam passing on her comments on the draft report, and referring her to Mr Plowman’s comments on the matrix.  Ms Nguyen asked Mrs Adam to consider completion of the report and matrices to be her “primary task”, and asked Mrs Adam to provide her with updated documents for review by noon on 16 February.  Mrs Adam provided updated documents on 16 February.  Ms Nguyen finalised the report (with matrices) on 13 April 2015.

   Events in dispute

4. Ms Nguyen says that she tasked Mrs Adam with the WSS evaluation in October 2014.  Mr Plowman agrees.  Mrs Adam says that the WSS evaluation was not assigned to her until 23 January, when Ms Nguyen asked her to prepare the draft report by 30 January.[15]  At the hearing, Ms Nguyen could not point to a specific communication before 23 January that amounted to her tasking Mrs Adam with the WSS evaluation.  However, at the hearing, Ms Nguyen and Mr Plowman each explained why they say it was expected that Mrs Adam would be responsible: she had done such evaluations before; she was the person, within the Branch, generally responsible for tenders (like the WSS tender) relating to satellite communications; and she had been involved in preparing the request for tender for the WSS tender.

   [15] See [24] above.

5. Mrs Adam says that the two additional staff (assigned to the WSS evaluation in December 2014 and January 2015) had been tasked directly, by Mr Plowman, with preparing the assessment matrices that he had asked for by 21 January.  This, she says, demonstrates that she had not been tasked with the WSS evaluation at that stage.  Ms Nguyen says that the additional staff were made available to assist Mrs Adam with the WSS evaluation.  Mr Plowman says that one of the additional staff was assigned to work on the WSS evaluation while Mrs Adam was on leave in early January 2015, and that both of them were “assisting [Mrs Adam] at various times” with the WSS evaluation, but that Mrs Adam was responsible for pulling the WSS evaluation together.  I do not think that the assignment of the additional staff, or their direct tasking by Mr Plowman, is inconsistent with them being assigned as a resource to assist Mrs Adam, or with Mrs Adam being responsible for the WSS evaluation.

6. There was clearly a general Branch responsibility for the WSS tender—in the sense that Ms Nguyen then Mr Plowman would have been expected to clear the Branch’s contribution to the evaluation of the WSS tender.  I think it possible that the WSS evaluation was not explicitly tasked to Mrs Adam before 23 January.  Nonetheless, I find, on the balance of probabilities, that Mrs Adam should have understood, as early as October 2014, that the WSS evaluation was her responsibility—in the sense that she was expected to prepare the report for clearance by Ms Nguyen then Mr Plowman.  Furthermore, I think it likely that Mrs Adam did have such an understanding.  I do not accept Mrs Adam’s assertion that the two additional staff were responsible for completing the WSS evaluation; that her role was to provide support to them, and to others, involved in the evaluation process; that she was responsible for overseeing the work of the (junior) additional staff, but not for the task itself.  However, I make no finding that Mrs Adam actually understood that the WSS evaluation was her responsibility before 23 January: to do so would involve finding that Mrs Adam was disingenuous in her dealings with her work colleagues, and in her compensation claim.  In any event, as I explain below,[16] I do not think that a finding that Mrs Adam had no responsibility for the WSS evaluation before 23 January would support Mrs Adam’s argument in the way that she contends.

   [16] See [48] below.

7. Ms Nguyen says that Mrs Adam knew, from October 2014, that a “preliminary report” of the WSS evaluation was to be finalised “by early 2015”.  Mrs Adam concedes that there was an expectation that the evaluation would be finished by January, but says that that was before it was decided to evaluate all eight tender responses, not just the three that had initially been chosen.  I make no finding on this issue, noting that I have already found that Mrs Adam knew no later than 12 January that all eight responses were to be evaluated.[17]

   [17] See [21] above.

8. Mrs Adam says that the additional staff “had never been involved in an evaluation before” and “required significant training, assistance and oversight from [her]”.  For this reason, she says, the assignment of those additional staff to assist her with the WSS evaluation was an “impost on [her] time, rather than a saving”.  Mrs Adam’s assessment of the capacities of the additional staff is consistent with Mr Plowman’s response to receiving evaluation notes and assessment matrices from one of those staff on 21 January: he e-mailed Mrs Adam to confirm that she had reviewed the notes and was happy with them,[18] because (as he later said) he thought that the notes were not of the standard that he expected of an APS 6.  Mr Plowman had assumed that Mrs Adam (an APS6) had cleared the notes—or had had the chance to clear them—but came to the view that they had been prepared by the additional staff (each of whom was below APS 6 level) without much input from Mrs Adam.  I think it likely that the additional staff did require a high level of oversight from Mrs Adam, and that this was (to some extent) an impost on her time.  But I think that their assistance must have been a net benefit to Mrs Adam in pulling the WSS evaluation together.

   [18]    See [23] above

9. Each of the eight responses to the WSS tender was 50–250 pages long.  Mrs Adam says that the WSS evaluation was complex.  Ms Nguyen says that each response had to be evaluated “in relation to procurement activity concentrating solely on the contracting perspective”.  That component of each response was addressed on only a few pages.  Evaluating that component was, Ms Nguyen says, “a low to medium complexity task and one well within the capability of an APS6 officer” like Mrs Adam.  Mr Plowman agrees.  He characterised the Branch’s component of the evaluation of the WSS tender as being “at the lower end of complexity for that type of task”.  He says that the evaluation of each tender response should have taken no more than a day or two.  He estimates that, if Mrs Adam had had no other work to do, “the whole evaluation would have taken no more than 10–15 working days to complete”.  I take him to mean that Mrs Adam could have completed the WSS evaluation in no more than 10–15 working days, without the assistance of the additional staff.  I accept Mr Plowman’s and Ms Nguyen’s evidence about the complexity of the WSS evaluation task.

10. There is much dispute about the status of various deadlines said to have been imposed at various stages before 5 February 2015. (I discuss the 5 February deadline at [44]–[49] below.) Mr Plowman says that, although Mrs Adam “was not given a specific deadline” before 23 January, “we were working towards completion in January/February 2015”. Mrs Adam says that that expectation was never “articulated to [her], and, in any case, was dependant on the progress of the [project evaluation team]” which, she says, “had only commenced evaluating the additional five tenders in early January 2015”. Mrs Adam also rejects the assertion that Mr Plowman made, during the discussion, that she had missed deadlines. Mrs Adam says that she did not miss the deadline of 21 January,[19] essentially because “it was not [her] deadline to miss”.  And she says that she did not miss the 30 January deadline,[20] because Ms Nguyen verbally extended that deadline until their regular meeting on 2 February.  And Mrs Adam says that she met that extended deadline because she “provided” Ms Nguyen with a copy of the draft report at their 2 February meeting.  She did so in a limited sense.  They discussed a hardcopy of the draft that Mrs Adam had brought to the meeting.  Ms Nguyen didn’t read the draft report at the meeting but, she says, Mrs Adam “walked” her through it.  Mrs Adam didn’t give Ms Nguyen a copy of the draft report, and Ms Nguyen appears not to have asked for one.  I do not need to decide whether or not Mrs Adam met a deadline on 2 February.  What is clear is that Ms Nguyen and Mrs Adam were each of the view, at their 2 February meeting, that the draft report needed more work before it could be finalised.

    [19] See [21] above.

    [20] See [24] above.

11. But Ms Nguyen and Mrs Adam had different views about how much work was needed to finalise the draft report.  Mrs Adam says that Ms Nguyen’s suggestion, at the 2 February meeting, that she look at examples of completed evaluation reports and assessment matrices amounted to a change to the task—an increase in what Mrs Adam had to do.  Ms Nguyen says that she did not enlarge the scope of the task, she just provided Mrs Adam with guidance about how she might complete it.  I accept Ms Nguyen’s evidence on this point.  In doing so, I note that Ms Nguyen made the suggestion after Mrs Adam told her that she found the structure of the template for the draft report hard to follow: a completed example could be expected to assist Mrs Adam to better understand what had to be done, without necessarily changing what had to be done.  I also note that preparing the final report was a low to medium complexity task.[21]

    [21] See [41] above.

    The 5 February deadline

12. Mrs Adam says that the deadline of 5 February 2015 (specified in Ms Nguyen’s first e-mail of 3 February)[22] was arbitrary and unreasonable.  She says that it failed to take account of the other tasks she had to complete; that the tasking was unclear; and that she had not been given sufficient management support.[23]  Importantly, Mrs Adam says that the imposition of the deadline of 5 February caused her disease.

    [22]    See [26] above

    [23]    Mrs Adam says that she raised all of these issues during the discussion with Mr Plowman.  Mr Plowman agrees that Mrs Adam told him that she needed more time, but he denies that she raised any of these other issues during the discussion.

13. She says that she was forced to work for 9¾ hours on 4 February, essentially because (she says) she could not meet the 5 February deadline without doing so.  Unless the requirement to finish the evaluation report by 5 February amounted to “extraordinary operational circumstances”, this was contrary to the requirements of the collective agreement.[24]  Mrs Adam says (effectively) that Mr Plowman and Ms Nguyen had characterised the need for the evaluation report as extraordinary operational circumstances, because she could not meet the deadline they had set without working without a break.  I accept the Department’s argument that an extraordinary operational circumstance is “a very high priority activity with possible Defence operational impact”.  The requirement to finish the evaluation report by 5 February did not amount to “extraordinary operational circumstances” for the purposes of the collective agreement.  And there is no evidence to suggest that Mrs Adam was forced to work that long on 4 February, in the sense that Mr Plowman or Ms Nguyen required her to—or expected her to—work without a break.  On the contrary, they each thought that Mrs Adam could complete the task by the deadline, during normal hours.

    [24] See [33] above.

14. In the e-mail, Ms Nguyen (twice) told Mrs Adam that she thought the deadline she had given Mrs Adam was reasonable, and that Mrs Adam should be able to meet that deadline “without … needing to work additional hours”.[25]  In a statement of facts prepared in August 2015, Mr Plowman and Ms Nguyen said that, in their opinion, Mrs Adam could have finalised the report “within a standard 7.5 hour day … as well as other business as usual activities”.  They each reiterated that view at the hearing.  I accept the evidence of Mr Plowman and Ms Nguyen on this issue.  Mr Plowman had seen evaluation notes and assessment matrices on 21 January.  And, from the e-mail Mrs Adam sent him the next day, he could readily have assumed that Mrs Adam had been coordinating the preparation of the draft report, by her and the additional staff, since no later than 12 January.  Mrs Adam had walked Ms Nguyen through the draft report at their meeting on 2 February and, Ms Nguyen says, she saw that Mrs Adam had made handwritten notes on the tender responses.  Ms Nguyen says that she came away from the 2 February meeting with the impression that the draft report was at an advanced stage, and needed only final finessing.  By 3 February (for Ms Nguyen) and 4 February (for Mr Plowman), they had each come to substantially the same view about how much still had to be done to finalise the report.

    [25] See [28] above.

15. Mrs Adam disagrees with Mr Plowman and Ms Nguyen: she says that “[t]he only possible way that I could meet the deadline … at midday on 5 February … was to work additional hours”.  I think that this difference in opinion about the amount of work still to do is largely due to Mrs Adam’s misapprehension that Ms Nguyen had enlarged the scope of the task at their 2 February meeting.  I find, on the balance of probabilities, that, by 3 February 2015, the WSS evaluation had progressed to a stage where Mrs Adam could have finalised the report by 5 February within a standard 7½-hour working day.  I make this finding, noting that Mr Plowman and Ms Nguyen had reassigned the 5A task from Mrs Adam to another person.

16. In their statement of facts, Mr Plowman and Ms Nguyen also noted that the WSS evaluation “was not a new task rather a continuation of an existing task that had originally been set in Oct 14” and that “the requirement to evaluate eight tenderers was confirmed by the project on 12 Jan 15”.  Ms Nguyen made a similar point in the e-mail (on 3 February):

    The WSS evaluation activity kicked off in October 2014 and you have always had responsibility for the WSS evaluation and you have had oversight of the WSS evaluations since they commenced.  Additionally, you have known about the increase from 3 to 8 tender evaluations since your return to work this year.[26]

    Notwithstanding that I have generally accepted Mr Plowman’s and Ms Nguyen’s evidence on these points,[27] that evidence does not support an argument about the reasonableness of requiring on 3 February that the report be completed by 5 February.  I agree that Mrs Adam had (effectively) been tasked with the WSS evaluation in October 2014, and the scope of that task was clear from no later than 12 January 2015.  But, even if Mrs Adam had had no responsibility for the WSS evaluation before 23 January (as she asserts),[28] that would not affect the reasonableness of the 5 February deadline.  The reasonableness of that deadline depends on the amount of work Mrs Adam had to do to complete the report as at 3 and 4 February; it does not depend on whether she should have done more work on the WSS evaluation than she did before 3 February.

    [26] See [28] above. Mrs Adam returned to work for 2015 on 12 January: see [20] above.

    [27] See [38]–[39] above.

    [28] See [38] above.

17. I have already found that, by 3 February 2015, the WSS evaluation had progressed to a stage where Mrs Adam could have finalised the report by 5 February within a standard 7½-hour working day.  It follows that the imposition of the 5 February deadline was reasonable.  However, the reasonableness of the 5 February deadline is not directly relevant to the issue in this review.[29]  What is relevant is the extent to which the e-mail and the discussion were informal counselling actions.  And Mr Plowman’s and Ms Nguyen’s views about what Mrs Adam should have done (but did not do) before 3 February are relevant to that question.

    [29] See [50] below.

    Reasonable administrative action taken in a reasonable manner?

18. Comcare points to two events which, it says, were among the causes of Mrs Adam’s condition:

    ·the e-mail (sent to Mrs Adam by Ms Nguyen on 3 February 2015 at 5:45 pm—see [28]–[29] above); and

    ·the discussion (between Mrs Adam and Mr Plowman on 4 February 2015 from about 8:00 am—see [31] above).

    Comcare says that each of these events was reasonable administrative action taken in a reasonable manner in respect of Mrs Adam’s employment. (I agree with Mrs Adam that the 5 February deadline was a cause of her disease,[30] and I have found that the imposition of that deadline was reasonable.[31] But Comcare cannot rely on the 5 February deadline as a cause of Mrs Adam’s disease, because the imposition of a deadline is an operational action and not an administrative action for the purposes of s 5A.[32])

    [30] See [61] below.

    [31] See [49] above.

    [32]    See Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at 473–474 [31] per Gray J; at 482 [57] per Rares and Tracey JJ. See also [51] below.

    Reasonable administrative action

19. As noted above, s 5A(1) of the SRC Act defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. In Commonwealth Bank of Australia v Reeve, Gray J explained:

    It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion [in s 5A of the SRC Act], but action with respect to the employee as employee and his or her employment relationship with the employer.[33]

    Rares and Tracey JJ added:

    In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. … It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.[34]

    [33] (2012) 199 FCR 463 at 473 [30] per Gray J.

    [34] (2012) 199 FCR 463 at 474 [33] per Rares and Tracey JJ.

1. Section 5A(2) relevantly provides:

   (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;

   …

   (e)  anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

   …

2. In Magro and Comcare, the Tribunal said:

   What amounts to “counselling (informal or formal)” is not defined.  …  The activity is frequently spelled out in workplace agreements.  It is clear that “counselling” in the therapeutic sense is not the intended meaning.  In Domburg v Nurses Board of Victoria Ashley J said that “counselling” in an employment relations context “has an industrial relations flavour”[35] and involves “something less than a caution or reprimand”.[36]  It is the “least severe—or most benign” of the corrective administrative actions which can be made by an employer or provisional association.[37] In the Tribunal’s view, it is used in this sense in section 5A(2)(b).

   The Tribunal has also considered the ordinary meaning of “counselling”.  The Macquarie Dictionary defines “counselling” as relevant as: “8) to give counsel to; advise; 9) to urge the doing or adoption of; recommend (a plan, etc); 10) to give counsel or advice”.  The Public Service and Merit Protection Commission and Comcare, in a joint publication, refer to “performance counselling” as a “‘formal’ process in relation to assessment and monitoring of an individual’s work performance”, while “effective feedback” is referred to as a form of “informal counselling”.[38]  Consistent with the distinction made in Domburg, the publication notes that “Counselling” is used in the sense of “assisting people to achieve and maintain a satisfactory standard of work performance and should not be confused with the type of counselling provided by professionally qualified counsellors”.  The ordinary meaning reinforces the Tribunal’s view.[39]

   I respectfully adopt this analysis.

   [35]    Domburg v Nurses Board of Victoria [2000] VSC 369 at [63] per Ashley J.

   [36]    Domburg v Nurses Board of Victoria [2000] VSC 369 at [62] per Ashley J.

   [37]    Domburg v Nurses Board of Victoria [2000] VSC 369 at [62] per Ashley J.

   [38]    Australian Public Service Commission, Counselling for Better Work Performance (2000).

   [39]    Magro and Comcare [2013] AATA 938 at [31]–[32] per Creyke SM, footnotes edited or omitted. See also Radulovic and Comcare (2010) 120 ALD 311 at [76]–[77] per Creyke SM.

3. In the e-mail, Ms Nguyen confirmed the deadline that she had imposed upon Mrs Adam.  But she also explained why that deadline was necessary, and explained why Ms Nguyen held certain expectations of Mrs Adam.  Ms Nguyen also made it clear that she was not satisfied with the progress that Mrs Adam had made on the WSS evaluation.  She added:

   If, in future, you have difficulty completing tasks I would appreciate it if you can provide me with an update on your progress so that the workload can be managed appropriately and so I can ensure client requirements are met.  …

   Again, I would like to reiterate that [Mr Plowman], myself and [the other EL1] are all happy for you to seek guidance from us if you have any questions or concerns or need any assistance in ensuring you have captured all the issues, and that we have always been available to provide you with support.[40]

   This was a corrective administrative action, though something less than a caution or reprimand.  Ms Nguyen was asking Mrs Adam to let her know (earlier than she did about the report) if she experienced difficulty completing tasks in the future, and advising Mrs Adam that she (and others) were available to assist.  Similarly, in the discussion, Mr Plowman confirmed the deadline that Ms Nguyen had imposed.  But he also made it clear that he, too, had concerns about Mrs Adam’s performance.  This included concern about her work on the WSS evaluation, but it went further.  Mr Plowman told Mrs Adam that he thought she wasn’t managing her time at work effectively: that she had engaged in numerous discussions with other staff that were not work-related; that she was making excessive personal use of the internet during work hours; and that she was performing tasks for the social club, which he asked her to stop.  He expressed concern: that Mrs Adam needed to review her written work more thoroughly; that she was generally not proactive enough in her work; that she should seek interim feedback from him and Ms Nguyen at an earlier stage in her work; and that she had not progressed the 5A task since mid-January.  Like the e-mail, the discussion was a corrective administrative action, though something less than a caution or reprimand.  Mr Plowman was providing informal feedback to Mrs Adam on a range of matters.  It follows that the e-mail and the discussion were each informal counselling action taken in respect of Mrs Adam’s employment.

   [40] See [29] above.

4. In my view, the e-mail and the discussion were reasonable informal counselling actions.  On the basis of the findings I have made above, it was reasonable for Ms Nguyen and Mr Plowman to raise concerns about Mrs Adam’s progress on the WSS evaluation.  I have no evidence before me about some of the other issues raised: for example, Mrs Adam’s discussions with other staff that were not work-related, or her personal use of the internet during work hours.  These are issues upon which reasonable people might differ.  But, I accept that these were concerns that Mr Plowman had and, given that, it was reasonable for him to raise those concerns with Mrs Adam.

5. For the purposes of s 5A of the SRC Act, each of the e-mail and the discussion was a reasonable informal counselling action taken in respect of Mrs Adam’s employment with the Department.

   Taken in a reasonable manner

6. Whether administrative action was taken in a reasonable manner 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 employee, the circumstances in which the administrative action was implemented, and any other relevant matters.[41]

   [41]    Comcare v Martinez (No 2) (2013) 212 FCR 272 at 293 [83] per Robertson J, citing Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47–48 per Lander J.

7. Mrs Adam does not suggest that the discussion was conducted in an unreasonable manner.  But she does say that the “tone and subtext” of the e-mail were not reasonable.  She says that the e-mail was “confrontational”, because it imposed a timetable that was not reasonable, and raised the issue in a way that suggested that she had not met previous deadlines.  I think that the tone of the e-mail was professional and the timetable was reasonable.  And I think that the “subtext” complained of is not subtext at all.  Ms Nguyen was expressing her disappointment about Mrs Adam’s work on the WSS evaluation.  In Ms Nguyen’s view, Mrs Adam had missed previous deadlines, and it was entirely reasonable for Ms Nguyen to tell Mrs Adam that that is what she thought.  The e-mail was confrontational, but only to the extent that Ms Nguyen’s views about Mrs Adam’s work on the WSS evaluation were different to—and challenged—Mrs Adam’s views.  That does not make the e-mail unreasonable.

8. In all of the circumstances, I think that the e-mail and the discussion (each of them a reasonable administrative action) were each taken in a reasonable manner.

   Would Mrs Adam have suffered her disease without the e-mail or the discussion?

9. In Comcare v Martin, the High Court explained the “exclusionary phrase” in s 5A(1) of the SRC Act:

   … an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered.  The administrative action need not be the sole cause.  There may be multiple causes, some of which might even be related to other aspects of the employee’s employment.  What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.[42]

   [42] (2016) 258 CLR 467 at 479–480 [45] per French CJ, Bell, Gageler, Keane and Nettle JJ. See also Lim v Comcare (2017) 154 ALD 413 at 422–423 [40]–[43] per Kenny, Tracey and Bromberg JJ.

10. As noted above,[43] when Mrs Adam made her compensation claim (on 21 July 2015), she said that her illness had been caused by meetings, emails and tasking directions from Ms Nguyen and Mr Plowman.  At the hearing, Mrs Adam said that (with the benefit of hindsight) this was a reference to the 5 February deadline, and not to the e-mail or the discussion.  She said that she was annoyed by the e-mail, but not upset by it.  I think that Mrs Adam’s claim was referring to (at least) the e-mail and the discussion, as well as to the deadline.  I think that the 5 February deadline was one cause of Mrs Adam’s disease.  But I think that the e-mail and the discussion were also causes.

    [43] See [5] above.

11. In her claim form, Mrs Adam said that she first noticed she was ill at 6:00 pm on 4 February 2015; and that she had first sought medical treatment the next day.  Mrs Adam returned home at about 6:00 pm on 4 February, and (as I have found above) she was visibly upset.[44] The medical treatment that she sought on 5 February was from her GP, whose consultation notes I quote from at [34] above.[45]  In the context of the e-mail on 3 February, and the discussion on 4 February, those consultation notes (made on 5 February) indicate that Mrs Adam was upset by the e-mail and the discussion—as well as by the 5 February deadline.

    [44] See [34] above.

    [45]    At the hearing, Mrs Adam agreed that her GP’s notes accurately reflect what she told her GP on 5 February 2015.

12. In a statement,[46] Mr Adam said that he had “observed a number of changes” in his wife “since the e-mail”, which included that “[s]he was in a fairly constant state of anxiety, had significant trouble sleeping and a consistently elevated heart rate when thinking about work”.  Mr Adam is not medically trained, so I do not accept this as evidence of Mrs Adam’s medical condition, about which there is no dispute in any event.  But it is evidence that the e-mail had an effect on Mrs Adam.

    [46]    28 November 2016.

13. Dr Zoltan Zsadanyi is a consultant psychiatrist.  He saw Mrs Adam on 25 August 2015.  He reported that:[47]

    On 4 February, Ms Adam said she felt upset by the confrontational tone of the e-mail she received from her supervisor which suggested that she was not performing at task.  Ms Adam felt the assessment was not fair.

    He also reported that Mrs Adam had met with Mr Plowman, and that Mrs Adam “told me that [Mr Plowman] essentially told her to do the work saying: ‘just do it’.”  In a later report,[48] Dr Zsadanyi answered a question about the specific work-related factors that had significantly contributed to Mrs Adam’s psychological condition:

    I reiterate that Ms Adam has described a number of different work related factors that affected her.  These are in relation to her experience of interpersonal difficulties between herself and her level 1 and level 2 supervisors and she felt confronted by the tone of an email in which it was alleged her workplace performance was not at the level expected.

    [47]    7 September 2015.

    [48]    28 June 2016.

14. Neither party suggests that any factors unrelated to Mrs Adam’s employment caused or contributed to her psychological condition.  And Dr Zsadanyi says, in his second report, that he is aware of no such factor.

15. Having regard to the evidence (especially the evidence that predates the hearing) about Mrs Adam’s reaction to the e-mail and the discussion, I do not think that the deadline was the sole cause of Mrs Adam’s condition (as she asserted at the hearing).  Furthermore, I find, on the balance of probabilities, that Mrs Adam would not have suffered her disease if she had not received the e-mail; and that she would not have suffered her disease if she had not participated in the discussion.  It follows that Mrs Adam suffered her disease as a result of both of these administrative actions: each action was a cause in fact of the disease which she suffered.

    Conclusion

16. The e-mail (on 3 February) and the discussion (on 4 February) were each causes of Mrs Adam’s disease. Each was reasonable administrative action taken in a reasonable manner in respect of her employment. Mrs Adam would not have suffered her disease if she had not received the e-mail; and she would not have suffered her disease if she had not participated in the discussion. Accordingly, her disease is excluded from the definition of “injury” in s 5A of the SRC Act. Comcare is not liable to pay her compensation.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

........................................................................

Associate

Dated: 15 September 2017

Dates of hearing:	24–26 July 2017
Advocate for the Applicant:	Mr Christopher Adam
Counsel for the Respondent:	Ms Kristy Katavic
Solicitors for the Respondent:	Sparke Helmore Lawyers