Amidiong-Otyaluk and Australian Capital Territory (Compensation) - [2023] AATA 4498

Amidiong-Otyaluk and Australian Capital Territory (Compensation) [2023] AATA 4498 (14 August 2023)
Division: GENERAL DIVISION
File Number(s):2019/0574
Re:Grace Amidiong-Otyaluk
APPLICANT

AndAustralian Capital Territory
RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:14 August 2023
Place:Canberra

The Reviewable Decision is affirmed.

...................................[SGD].....................................
Senior Member Dr Linda Kirk

CATCHWORDS

COMPENSATION – Australian Capital Territory – psychological injuries – decision made without hearing oral evidence or submissions from the Applicant – performance management actions – whether the Applicant suffered an ailment during her employment – whether the ailment significantly contributed by the Applicant’s employment –– decision under review affirmed
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES

Barry and Cleanaway Operations Pty Ltd (Compensation) [2021] AATA 369
Berenger and Secretary, Department of Social Services [2013] AATA 896
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Comcare and Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
DXVN and Telstra Corporation Limited (Compensation) [2018] AATA 2152
Drenth and Comcare [2011] AATA 582
Fairall and Comcare (Compensation) [2021] AATA 281
Hollis v Comcare [2017] FCA 558
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056
Lim v Comcare [2017] FCAFC 64
Modirzadeh and Comcare [2004] AATA 914
National Australia Bank Limited v KRDV (2012) 204 FCR 436
Nguyen and Comcare (Compensation) [2018] AATA 1623
Re Amidiong-Otyaluk and Australian Capital Territory (Compensation) [2021] AATA 4777
Schmid v Comcare [2003] FCA 1057
Stieglitz v Comcare [2010] AATA 263
Su v Comcare [2011] AATA 934
Thompson and Comcare [2012] AATA 752
Von Stieglitz and Comcare [2010] AATA 263
Wiegand v Comcare [2002] FCA 1464
REASONS FOR DECISION
Senior Member Dr Linda Kirk
14 August 2023

INTRODUCTION AND PROCEDURAL BACKGROUND

On 30 September 2018, Ms Grace Amidiong-Otyaluk (‘the Applicant’) made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) for ‘anxiety, stress, high blood pressure, diabetes and depression’ (‘the compensation claim’).[1] The Applicant attributed her conditions to a combination of stressors in her employment by the Australian Capital Territory (‘the Respondent’) at the Canberra Hospital (‘the Hospital’). She claimed to have first noticed her symptoms on 24 September 2018, and to have first sought medical treatment from her general practitioner on 26 September 2018.[2]
[1] Exhibit R1, T4, 12.
[2] Ibid 13–14.
On 29 January 2019, Comcare affirmed two decisions: the first dated 12 November 2018 which determined a rehabilitation program was not required at that time under section 37(1) of the SRC Act, and the second dated 4 December 2018 which declined liability to pay compensation to the Applicant in respect of a ‘major depressive disorder, single episode’, which was sustained on 24 September 2018, under section 14 of the SRC Act (‘the Reviewable Decision’).
On 1 March 2019, the ACT became a licensee under the SRC Act. As a result, the ACT became the Respondent in these review proceedings.
Application for review
The Applicant, by her representative, Mr Peter Kolya, filed an application for review of the Reviewable Decision with the Tribunal which was received on 4 February 2019.
The Tribunal listed the matter for hearing on three separate occasions. Listing notices for the hearings were issued for 27 November 2019, 9 June 2020 and 22 October 2020.
On 22 October 2020, the Tribunal issued an updated listing notice for the hearing from 27-30 April 2021. A pre-hearing telephone directions hearing was also listed for 19 March 2021.
On 6 April 2021, Mr Kolya sent an email to the Tribunal and the Respondent which was a copy of an email he had sent to the Applicant on 2 April 2021, advising her that he was unable to continue representing her as he was required to take personal leave from work. He further requested that the Tribunal vacate the hearing listed for 27-30 April 2021 to allow the Applicant time to find alternative representation.
On 14 April 2021, the Tribunal wrote to the Applicant requesting she advise the Tribunal of the following by 19 April 2021:
1.whether she proposed to engage alternative legal representation, and if so, when she expected to engage that representation; or

2.that she intended to proceed with the application as a self-represented Applicant.
By way of an email dated 20 April 2021, the Applicant made a further application for an adjournment of the hearing scheduled for 27-30 April 2021. She did not provide a response to the matters contained in the Tribunal’s request in [8] above.
On 22 April 2021, after having received submissions from both parties, the Tribunal vacated the hearing listed for 27-30 April 2021. The Tribunal issued a Direction to the Applicant which required her to provide the following documents and/or information on or before 20 May 2021:
1.A medical report from a qualified medical practitioner that provided expert opinion with respect to the Applicant’s ability to proceed with her application before the Tribunal, with explicit reference to:
a)whether the Applicant was fit to instruct a representative or advocate;
b)whether the Applicant was fit to give evidence at a hearing and be subject to cross-examination by the Respondent;
c)whether the Applicant was fit to correspond with the Tribunal generally; and
d)the risk of self-harm to the Applicant in proceeding with the application before the Tribunal.
The Applicant did not comply with the Tribunal’s Direction.
Dismissal application
On 22 May 2021, the Respondent made an application for dismissal of the Applicant’s review application pursuant to sections 42A(5) and 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
On 4 June 2021, the Tribunal directed the Respondent and the Applicant to make submissions by 18 June 2021 and 9 July 2021 respectively in relation to the Respondent’s dismissal application which was listed for an interlocutory hearing on 14 July 2021. The listing notice was emailed to the Applicant by the Canberra Registry at or about 2:25 pm on 4 June 2021.[3]
[3] Documents to accompany the Affidavit of Daniel D'Onofrio dated 11 June 2021, filed by Respondent on 15 June 2021, 810.
On 11 June 2021, the Respondent lodged written submissions in support of its application for dismissal together with two affidavits detailing the history of the matter since the lodgement of the Applicant’s review applications.[4] Copies of those materials were emailed to, and electronically accessed by, the Applicant on the same day.
[4] Respondent’s Submissions in Support of Dismissal under ss 42A(5) and/or 42B of the Administrative Appeals Tribunal Act 1975, dated 11 June 2021, filed by Respondent on 15 June 2021.
On 9 July 2021, Ms Famata Holmes of the Trustee for the President Nelson Mandela Advocacy Project sought to query on behalf of the Applicant whether the interlocutory hearing had been or would be vacated. Whilst she conceded that she had access to the Applicant’s emails, Ms Holmes asserted that they had not received nor been able to view the Respondent’s interlocutory hearing submissions.
The Respondent’s solicitors wrote to the Tribunal on 9 July 2021 providing evidence that its interlocutory hearing submissions had been downloaded by the Applicant on 11 June 2021 at or about 6:48 pm. By its solicitors’ correspondence, the Respondent advised that it remained of the view that the interlocutory hearing should proceed on 14 July 2021 and gave its reasons for that position.
On 12 July 2021, at or about 11:57 am, the Canberra Registry wrote to the Applicant and confirmed that the interlocutory hearing would proceed as per the listing notices sent to the parties on 4 June 2021.
On 13 July 2021, the Applicant provided her submissions to the Tribunal and the Respondent which were stated to have been ‘prepared and submitted under the ACT Public Trustee and Guardianship Act 2006 by Trustee for President Nelson Mandela Advocacy Project’. The following documents were attached to the submissions:
·a medical certificate dated 1 July 2021 certifying the Applicant is unable to legally represent herself;
·a fee notice dated 27 May 2021 for payment of strata fees in the sum of $12,413.18; and
·a letter of demand dated 8 June 2011 from the Commonwealth Bank in relation a loan contract requiring payment within seven days of $16,004.11.
The relevant parts of the Applicant’s submissions stated:
The Applicant Ms. Grace Amidiong-Otyaluk does not have the capacity to self-represent nor can she afford to both instruct or hire a legal practitioner.
Her medical evidence as well as evidence of her financial hardship enclosed make out her case for a decision to by (sic) taken on the papers pursuant to section 34 J of the Administrative Appeals Tribunal Act 1975 and for the interlocutory relief hearing on the 14 July 2021 be dispensed with in its entirety.
An application to the AAT by decision-maker for a dismissal citing it as interlocutory relief lacks substance and its so unreasonable that no reasonable person would consider making such an application.[5]
[5] Submission dated 12 July 2021, filed by the Applicant on 13 July 2021, 4.
Interlocutory hearing
The Applicant failed to appear at the interlocutory hearing on 14 July 2021. The Respondent was represented by its solicitors and counsel.
At the commencement of the hearing, the Tribunal informed the Respondent’s representatives that it had made two attempts to call the Applicant on her landline and then on her mobile telephone, but she did not answer the calls. During the interlocutory hearing, the Tribunal made a third attempt to contact the Applicant, which also was unsuccessful. The Tribunal informed the Respondent’s representatives that the Tribunal had sent the Applicant a SMS reminder to her mobile phone on 12 July 2021, in addition to an email sent to the parties on 12 July 2021, to confirm that the interlocutory hearing would proceed as listed.
At the interlocutory hearing, the Respondent made a further application for dismissal on the basis of the Applicant’s failure to appear at the hearing, pursuant to section 42A(2)(a) of the AAT Act. The Tribunal allowed that application and dismissed the application for review. In those circumstances, the Tribunal did not need to hear, nor did it decide, the substantive dismissal application made by the Respondent.
Application for reinstatement
On 19 July 2021, Mr Kolya, made a request for the Applicant’s review application to be reinstated. He submitted this request via the following post on the Tribunal’s online complaints portal:

Member William Frost in particular has been acting with "venom" against all persons I have represented at the AAT. He has either made a decision that is visibly wrong for us to pick up unnecessary costs and charges going to an appeal court in complete disregard of International covenants to which Australia is a Signatory. See (Michael Adaji Inoo vs Minister of Home Affairs) or he has used a flimsy excuse despite complaints made known to him of our apprehended bias regarding him to dismiss a long running Comcare application before the AAT of a psychologically injured Applicant who is now impoverished, legally and mentally incapacitated and unable to instruct another or new legal representative when I ceased to act for her due to my own mental health leave of absence that I had to take in the matter of (Grace Amidiong-Otyaluk vs Australian Capital Territory). Please refer to email correspondence for more details on dates and relevant names.

Immediate reinstatement of the Application and for the Appeal to be handled by a reconstituted Tribunal in which he can no longer adjudicate on the matter or matters. The tribunal case number in question is 2019/0574. Thank you.[6]
[6]Email from Mr Peter Kolya to Administrative Appeals Tribunal, Canberra Registry, dated 19 July 2021.

On 27 July 2021, the Tribunal as presently constituted made the following Directions:
1.On or before 3 August 2021, the Applicant must advise the Tribunal and the Respondent:
a)whether she is represented in her application for review, and if so, the contact details of her representative; and
b)whether she wishes for her application for review to be reinstated.
Application for reinstatement of review application
By email dated 1 August 2021, Mr Kolya confirmed that the Applicant was requesting reinstatement of her review application. He advised that the Applicant intended to engage Ms Madeleine Smith and Ms Heidi Lewis of Shine Lawyers, Senior Counsel Mr Quang Nguyen of Expert Court Lawyer, Ms Nadia Baker, her solicitor Ms Diana Farah of Carroll & O’Dea Lawyers and ‘such any other lawyer as the Applicant may appoint’.
By this email, Mr Kolya also made a request to the Tribunal under the Freedom of Information Act 1982 (Cth) for all documents relevant to the Applicant’s review application. The request was stated to be for the following purpose:
… the supply of these documents to the legal team is to assist them: firstly to individually identify and determine whether they can take up the matter(s) and if so which one; secondly, to ascertain whether they can represent the Applicant on a No Win No Fee basis; and lastly if and where legal fees must be paid upfront, the legal team member or members in question will have the opportunity to determine their fee schedule and/or legal costs to be borne by the Applicant before they can act for Ms. Grace Amidiong-Otyaluk being the Canberra Hospital injured employee and the AAT Review Applicant.
Mr Kolya further advised that he had returned to the office on ‘light duties’ and he would be representing the Applicant at the telephone directions hearing listed on 6 August 2021. He digitally signed the email as the Applicant’s ‘Intending Legal Guardian’.
Telephone Directions Hearing
On 6 August 2021, the Tribunal conducted a telephone directions hearing with the parties. Mr Kolya appeared for the Applicant. He told the Tribunal:
·     since 6 April 2021, he had been on mental health leave and will remain on leave until 6 September 2021;
·     he was unable to find anyone to cover for him while he was on leave;
·     he had since organised for three law firms, including Shine Lawyers, to take over the Applicant’s matters and they would represent her on a no win/no fee basis;
·     the Applicant also intended to engage counsel, Mr Nguyen, who required payment of $10,600;
·     he had made a FOI request to the Tribunal to obtain all the relevant documentation for the Applicant’s new legal representatives;
·     he expected that the Applicant’s new legal team would be in place by 20 August 2021;
·     he had joint ownership with the Applicant of their home in Melba and they were attempting to refinance this property through the Commonwealth Bank;
·     the Applicant remained unwell and was unable to represent herself;
·     she had a Centrelink and a Workcover certificate certifying her unfit until 4 September 2021;
·     her phone had been disconnected the previous day; and
·     she was no longer receiving a salary from ACT Health and was now on Jobseeker payments.
The Tribunal questioned Mr Kolya about the reasons why neither the Applicant nor a representative attended the interlocutory hearing on 14 July 2021. He stated:
·   he was on leave on that date and was not representing the Applicant;
·   Ms Famata Holmes, a joint trustee of the President Nelson Mandela Advocacy Project, had prepared the Applicant’s written submissions dated 13 July 2021, but was not authorised to represent her at the interlocutory hearing; and
·   the Applicant was going to appear unrepresented at the hearing, but she did not do so.
It was agreed that an extended timetable be set down for the parties to make written submissions in relation to the reinstatement application to allow time for the Applicant to secure her new legal representatives and for them to prepare submissions.
The Tribunal made the following Directions:
1. On or before 3 September 2021, the Applicant and Respondent must give to the Tribunal and the other party written submissions with respect to the Applicant’s application for reinstatement of matters 2019/0574 and 2019/0575.
2. On or before 3 September 2021, the Applicant must advise the Tribunal and the Respondent the name and contact details of her legal representative.
On 3 September 2021, the Respondent provided written submissions opposing the application for reinstatement. On 7 September 2021, the Respondent advised the Tribunal that it was willing for the reinstatement application to be decided on the papers.
On 9 September 2021, the Applicant provided written submissions in support of her application for reinstatement.
On 22 December 2021, the Tribunal reinstated the review applications: Re Amidiong-Otyaluk and Australian Capital Territory (Compensation).[7]
[7] [2021] AATA 4777.
Review hearing
The Tribunal conducted a telephone directions hearing on 10 February 2023. Ms Nada Najjar of Carrol & O’Dea Lawyers appeared for the Applicant, and Ms Athena Cains of McInnes Wilson Lawyers appeared for the Respondent. The Tribunal made the following Directions:
1. On or before 31 March 2023, the Applicant is to provide to the Tribunal and the Respondent any further information or evidence on which she intends to rely;
2. On or before 7 April 2023, the Respondent is to provide to the Tribunal and the Applicant written notice as to whether it intends to provide any further information or evidence;
3. On or before 28 April 2023, the Respondent is to provide to the Tribunal and the Applicant any further information or evidence on which it intends to rely;
4. On or before 2 May 2023, the Respondent is to provide to the Tribunal and the Applicant an agreed Hearing Book;
5. On or before 12 May 2023, the Applicant is to provide to the Tribunal and the Respondent an amended Statement of Facts, Issues and Contentions;
6. On or before 26 May 2023, the Respondent is to provide to the Tribunal and the Applicant an amended Statement of Facts Issues and Contentions.
On 13 February 2023, listing notices were sent to the parties for the hearing on 13 to 16 June 2023.
On 12 April 2023, Ms Najjar sent an email to the Tribunal to advise that Carrol & O’Dea Lawyers no longer acted for the Applicant and that all correspondence should be directed to her.
On 19 April 2023, the Tribunal sent the following email to the Applicant:
Dear Ms Amidiong-Otyaluk
The Tribunal is in receipt of Ms Najjar’s email dated 12 April advising that she is no longer representing you in these proceedings. I would be grateful if you could confirm by no later than close of business on 20 April (tomorrow) whether you intend to be self-represented, seek legal representation or have Mr Kolya assist you moving forward.
On 14 April, the Respondent’s representative requested that the Direction dated 13 February 2023 is vacated. Please confirm by close of business on 20 April (tomorrow) whether you consent to the Direction being vacated …
On the same day, the Tribunal sent listing notices to the parties for a directions hearing on 31 May 2023 at 11:00am to discuss whether the parties were prepared to proceed to the hearing listed on 13 to 16 June 2023.
On 21 April 2023, the Applicant sent an email to the Tribunal stating as follows:
Dear AAT Registrar and the Attorney General’s Department
For the record, my name is Grace Amidiong-Otyaluk and I sustained a psychological injury while at work at the Canberra Hospital (TCH) on the 24 September 2018 …
Recently my support person Prince Peter available on Mob: 0422408328 wrote an email to the AAT and to other stakeholders regarding my situation but it appears to me that the said email has been largely disregarded by Ms. Naama B. the AAT “contact” person, the AAT Tribunal Senior Member Ms. Dr. Linda Kirk and Ms Athena Cains. I know and have met men who are bad but I have never known that women can be worse to fellow women when it comes to administrative action and the way management action is carried out by them …
Now, after nearly 5 years of waiting and still with my inability to instruct a lawyer or conduct my own hearing and also given that my support person Prince Peter who was himself bullied by 3 AAT members but whose names I will not mention here is unwilling or unable to recommit to representing me,
a)why can’t my AAT matters at my request be decided on the papers by the AAT? I thought that this is provided for in the AAT enabling legislation;
b)given that the ACT or Canberra Health Services as the Respondent now has an appetite to settle, what is Senior Member Dr. Linda Kirk requiring further more to appoint an arbitrator under the same Act to resolve the issues before the AAT in general and before her to be specific?;
c)if the litigation must endlessly go on, why not add the Attorney General to the case since the case was and is billed as a Test Case of a federal nature that could attract Federal Funding by the AAT Deputy President Gary Humphries who first heard the appeals?; and lastly
d)the Federal Attorney General of Australia announced a dissatisfaction of the AAT following several complaints against some 17 members of its listing and apparently he has sought to disband it altogether. However should more 18, 19, or 20 members continue with the previous and/or current attitude towards review applicants like myself before the AAT actual gets some real teeth to act well and fairly? …

On 5 May 2023, the Tribunal sent the following email to the Applicant:
Dear Ms Amidiong-Otyaluk
I refer to the above matter that is listed for Hearing on 13 to 16 June 2023 by Microsoft Teams.
The Tribunal is in receipt of your email dated 21 April 2021. In that email, you outline Mr Peter Kolya as your support person. I would be grateful if you could please confirm whether you intend for him to assist you in your matter going forward, and if you agree to him receiving correspondence with relation to the proceeding on your behalf.
As well, the Hearing is currently listed to occur by Microsoft Teams. I would request that you provide the Tribunal with your views on the Hearing instead proceeding in the Canberra Registry in person.
On 23 and 25 May 2023, three attempted phone calls were made to the Applicant to confirm appearances at the Directions Hearing scheduled for 31 May 2023, none of which were answered. On 26 May 2023, the Tribunal sent the following email to the parties:
Dear Parties
I refer to the above matter that is listed before Senior Member Dr Linda Kirk for a Directions Hearing by Telephone on 31 May 2023 at 11:00AM. The Listing Notice was sent to the parties on 20 April 2023 and contains within it the Microsoft Teams link to attend the Directions Hearing.
I would be grateful if the parties could please provide their appearances at the Directions Hearing by no latter than close of business on Monday, 29 May 2023. I should note that the Tribunal has not yet received confirmation from the Applicant as to whether she consents to Mr Peter Kolya assisting her with her matter moving forward, and whether she agrees for him to receive correspondence with relation to the proceeding on her behalf. The Tribunal requires that confirmation from the Applicant in writing.
I note the substantive Hearing on 13 to 16 June 2023 will occur in person at the Canberra Registry. Further details will be provided for that Hearing in due course …
On 30 May 2023, Mr Kolya sent an email to the Tribunal stating as follows:
Dear all,
I am writing for the information of all it may concern that the Applicant in the matters listed above Ms. Grace Amidiong-Otyaluk is not well and travelled to Sydney, NSW over a week ago on the 20^th May 2023 at 1100 hrs to seek help with Occupational Therapists. I am not sure for how long.
After that Ms. Amidiong-Otyaluk who felt and feels harassed and cornered with hefty email correspondence from the Respondent and Naama B of the AAT Sydney Registry that she hardly understands while they ignore her own issues in their responses to hers plus some letters now being sticky-taped to her front door, will head to Brisbane, QLD in the company of her close professional friends among whom is a trained and long practising Registered psychiatric nurse I was made to understand who are providing her with care and counselling against her suicidal ideation.
This was at the recommendation of her treating professions at Curtin Medical Centre and Strategic Psychology and I understand with the approval of Dr. Jonathan Spear the 3^rd Consultant Psychiatrist who recently examined the Applicant and provided a report which appears to be disregarded.
Given the above scenario, the Applicant spoke to me yesterday the 29^th May on telephone and requested me to advise the AAT to proceed with making a decision on the matters before it in accordance with its own published information …
On 29 May 2023 at or about 3:23pm, three telephone calls were made to the Applicant, none of which were answered. A voice message was left requesting that the Applicant contact the Tribunal either by phone or email and contact details were provided.
Neither the Applicant nor Mr Kolya appeared at the Directions Hearing on 31 May 2023. Ms Cains appeared for the Respondent and she objected to the decision being made on the papers as requested by Mr Kolya in his email dated 30 May 2023.
On 7 June 2023, updated listing notices were sent to the parties for the hearing on 13 to 16 June 2023 to include the details of the Canberra Registry. On the same day, the Tribunal sent the following email to the Applicant:
Dear Ms Amidiong Otyaluk
I refer to the above matter that will be heard by Senior Member Dr Linda Kirk in Canberra Registry on 13 to 16 June 2023 at 10:00AM.
On 20 April 2023, the Tribunal sent you a Listing Notice containing the details to facilitate your attendance at the Directions Hearing by telephone on 31 May 2023 at 11:00AM. The Listing Notice contained a Microsoft Teams link in order for you to join.
On 23 and 25 May, 3 attempted phone calls were made to you, however none of them were answered.
On 26 May 2023, the Tribunal sent you an email seeking confirmation of appearances at the Directions Hearing by telephone on 31 May 2023 at 11:00AM. No response was received from you about appearances.
On 31 May 2023, the Directions Hearing proceeded, and you did not appear. At the Directions Hearing by telephone, Senior Member Dr Linda Kirk decided that the Hearing would proceed on 13 to 16 June 2023 at 10:00AM from the Canberra Registry.
On 7 June 2023 (today), the Tribunal attempted to call you, however the call was not answered.
On 7 June 2023 (today), the Tribunal sent you a Listing Notice containing the details to facilitate your attendance at the Hearing in-person from the Canberra Registry from 13 to 16 June 2023 at 10:00AM. The Listing Notice contains the hearing room details and address of the Tribunal in Canberra.
I would be grateful if you could please confirm whether you will be appearing at the Hearing of the matter from 13 to 16 June 2023 at 10:00AM in the Canberra Registry, by no later than close of business on 8 June 2023 (tomorrow) …
The reinstated review application was heard by the Tribunal at an in person hearing on 13 and 14 June 2023. The Applicant did not attend the hearing.
The following witnesses gave oral evidence at the hearing:
·Ms Louise McKenzie, Clinical Care Coordinator (RN3.1) Ward 6A
·CC, Nurse in Charge (RN3.2) Ward 6A.
The following documents were before the Tribunal:
·Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 30 January 2023;
·Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 30 September 2019;
·Respondent’s Outline of Submissions dated 14 June 2023;
·Section 37 T-Documents (T1 – T38, pp. 1 – 222) filed on 9 June 2023 (Exhibit R1); and
·Hearing Bundle (pp. 1 – 853) filed on 7 June 2023 (Exhibit R2).
LEGISLATIVE FRAMEWORK
Liability to pay compensation
The entitlement to compensation for an employee under the SRC Act is conferred by section 14(1) of the SRC Act which provides that the Respondent 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.
‘Injury’ is defined in section 5A of the SRC Act:
(1)…
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
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.
(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 subsection (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.
A ‘disease’ is relevantly defined in section 5B of the SRC Act to mean:
(1)…
(a)an ailment suffered by an employee; or
(b)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.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
‘significant degree’ means a degree that is substantially more than material.
An ‘ailment’ is defined in section 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘Aggravation’ includes acceleration or recurrence.
Subsection 7(4) of the SRC Act provides for when an injury is taken to have been sustained:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
Rehabilitation program
The SRC Act allows a rehabilitation authority to arrange for an assessment of an employee’s capability to undertake a rehabilitation program under section 36, and to provide or arrange for a rehabilitation program under section 37, to assist in their recovery and return to work:
36Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
….
37Provision of rehabilitation programs
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a) provide a rehabilitation program for the employee itself; or
(b) make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
…
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee’s opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee’s attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
…
ISSUES FOR DETERMINATION
The issue for determination is whether the Applicant is entitled to compensation for an ‘injury’ under section 14 of the SRC Act and specifically:
1)What is the diagnosis and date of onset of the Applicant’s condition?
2)Did the Applicant suffer an ‘ailment’, or an ‘aggravation’ of an ‘ailment’, as defined in section 4(1) of the SRC Act?
3)Was any such ‘ailment’, or ‘aggravation’, contributed to, to a significant degree, by the Applicant’s employment such as to qualify as a ‘disease’ under section 5B of the SRC Act?
4)Is any such ‘disease’ excluded from the definition of ‘injury’ in section 5A of the SRC Act on the basis that it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment?
5)If not, did any such ‘injury’ result in either an incapacity for work or an impairment for the purpose of section 14(1) of the SRC Act?
6)What is the date the Applicant is taken to have sustained the ‘disease’, if any, pursuant to section 7(4) of the SRC Act?
7)Should the Applicant have been provided with a rehabilitation program under section 37(1) of the SRC Act on or about 12 November 2018?
APPLICANT’S EVIDENCE
The Applicant was born in 1959. On or about 6 December 2004, she commenced full-time employment with the Respondent. She was employed as a Registered Nurse (RN), Level 1 at the Hospital and allocated duties which included patient care.
In 2012, the Applicant was assigned to Ward 6A of the Hospital.[8] Ward 6A is a 32-bed medical ward for patients with a variety of medical conditions both acute and chronic. It is the primary ward for Respiratory, Cardiac, Rheumatology and Endocrine conditions, plus the staging area for patients transferred from the Emergency Department, Intensive Care and Coronary Care Unit.[9]
[8]Exhibit R1, T16, 56.
[9]Exhibit R2 undated, 264-266, [2].
In a statement titled ‘Summary of the Allegations’ dated 15 November 2018, the Applicant detailed the circumstances that formed the basis of her compensation claim:[10]
[10]Exhibit R1, T23, 133-139.
My Explanation of the Issues from my point of View
Ms. CC my instant Nursing Manager together with two other higher Managers at the Canberra Hospital namely Ms. TD and Ms. KN and I, have a challenging work relationship and it has really nothing much to do with Reasonable Administrative Action as claimed in their Statement of Facts.
These 3 ladies belong to a social group that is alien to me, they have done everything that can be done within their power to keep me at Level 1 Registered Nurse for 14 years and counting and they have said a lot of things to me that amount to sexual harassment, unlawful discrimination and bullying as the 3 appear to be lesbians to me while I am not. It is time to spit the dummy.
In addition, they have used my skin colour, my race, my background, and my age to torment me especially in the last 12 months or so more specifically while using "under-performance" ostensibly to make it look like it is a reasonable Administrative Action.
…
Gladly their statement acknowledges that I am ACT government Health directorate's Employee at the The Canberra Hospital and it further acknowledges that I got injured while I was at work. More importantly the document recognizes my compliance in the matter concerning the said reasonable administrative action. I have to say I also did it with much humility on my part especially being cognizant of the really issues at hand, namely: bullying and unlawful discrimination I have endured in my workplace.
…
I hope I still have long to live to be able to return to work. If I had evidence supporting my version of the facts, I would have included a copy with this statement but CC has conveniently avoided to respond to my request for both her supervisor and her eye witness statements about what happened to me on the fateful day of the 24 September 2018.
I would like to believe that she understands that this duty cannot be delegated or be transferable to another manager.
In this case, all I can do is to include the email from me to her requesting her for the two documents which she has neither replied to nor has supplied the requested documents.
I might also in a humble but definite way ask if there is any evidence that the executive manager has if any as it would assist me to give an appropriate response to the allegations. But that would probably be in a Court of Law rather than in this claim now before Comcare.
Reaffirming My Commitment to The Canberra Hospital
Last, but not least I would like to conclude by emphasizing my commitment to cooperate and work with the Hospital Executive especially and the Directorate of Health in general when health permits me to return to work. I would like to let my bosses know that I am completely dedicated to my job and that I take pride in my professionalism.
I would like to remind them that I've been a good employee with stellar annual reviews and you can only wish that this sort of thing on your part continues.
So I am looking forward to returning to work as long as my health improves and permits me to do so as soon as I am cleared to do so by the persons treating me.
I have to say I am resisting the urge to lay blame on other employees or make negative remarks about them. Although I might get great satisfaction in calling out the busybodies who decided my fate, I won't win points with anyone if I did this.
Conclusion
I would like to end this response by asking for some type of resolution. I request that my supervisor or HR and COMCARE make a finding in my favour after reviewing all the facts. Given the nature and complexity of my my (sic) situation as it is particularly complicated, I might ask that complicating it any further is not in the best interests of anybody. This is a NO Fault Claim. Please do the needful.
Thank you.
On 13 November 2018, the Applicant reported to Dr Zeeva Cohen, Consultant Psychiatrist, that she had worked on Ward 6A for six years and at the Hospital for 14 years, and that she had experienced workplace problems over the previous 12 to 18 months. She told Dr Cohen that ‘she felt bullied, harassed and discriminated’ at her place of work. The problems started when a supervisor had singled her out for not changing to the new uniform and spoke to her in a way which she perceived as ‘attacking’. The Applicant reported to Dr Cohen that she was not the only one who had not yet obtained a new uniform, and she felt like the supervisor had made a ‘scene’. The Applicant endeavoured to email her supervisor to request a meeting, but she received no reply. She then approached her supervisor in her office, but she was ‘sent out.’ She reported this to the manager, who ‘dismissed her complaints’, which she ‘perceived to be a protection of the supervisor.’ The Applicant reported to Dr Cohen that from this point, her relationship with the supervisor ‘became challenging’ and ‘continued to deteriorate’. She said that eventually the supervisor and manager met with her to discuss the uniform issue, however at the time they presented her with a ‘paper’ which made allegations about her performance including ‘that she did not complete tasks, disappeared from the ward and took too long using the toilet.’ She said that ‘when she asked where the information came from they would not tell her.’ She told Dr Cohen that ‘there was only one toilet on the ward and she felt singled out.’ The Applicant then approached Human Resources and showed them the paper. She said that ‘she was told that there was no natural justice in the way it had been managed.’ At this time, the manager was on leave for eight weeks and the supervisor ‘continued to say she had no right to know where the information came from.’[11]
[11]Exhibit R1, T24, 141.

The Applicant reported to Dr Cohen that it was decided by management that she was not ‘performing well’ and a performance plan was made. She said she was ‘isolated in her work but a person was placed nearby to scrutinise her.’ She reported that ‘the situation continued to deteriorate in that she would receive allegations and complaints, for example related to her body language, but this would not be explained to her and she did not know what was wrong with her body language.’ She claimed that ‘as part of her performance plan she requested a chance to act as a team leader and this was given to her on one occasion,’ however ‘she was not supported and had not done it before, therefore [she] felt set up to fail and discouraged from pursuing it.’[12] She found the workplace ‘cliquey’ and, because she was ‘not one of them’ she ‘frequently felt excluded and unheard.’ [13]
[12]Exhibit R1, T24, 142.
[13]Ibid.
The Applicant told Dr Cohen that by December 2017 she received a letter ‘which was not genuine and full of mistakes, at which point she involved legal aid.’ The letter was an underperformance letter ‘which she felt was unfair.’ She reported to Dr Cohen that ‘the last incident which broke her occurred on 24 September 2018.’ She was ‘looking after four patients which was her usual job and needed to make room for a patient.’ Her colleagues ‘had offered to help her and it was usual nursing practice to help one another.’ A Level 3.1 nurse (Ms Louise McKenzie) who, she explained, was just below the supervisor, went past and ‘spoke to her abrasively about her colleagues moving her patients’ and stated that the Applicant ‘should move her own patients.’ She told Dr Cohen that ‘she felt upset as the remark was made in a nasty way’ and noted ‘the culture of sharing and teamwork within nursing practice.’ Following this incident, the Applicant tried to approach the nurse, who declined to speak to her. She subsequently went to complain to the supervisor (CC), ‘but the supervisor took sides with the other person and accused her of not listening and not doing her work.’ She ‘was sent out of the office at which point she felt faint and tearful.’ She reported that ‘she had never cried previously at work but had felt bullied and harassed to the extent that she crumbled’. She ‘had felt vulnerable and alone.’[14]
[14]Ibid.
In a statement dated 25 November 2018, the Applicant provided examples of what she claims to have been bullying, racial harassment and unlawful discrimination in her workplace:
EXAMPLES OF [THE APPLICANT] FACING BULLYING, RACIAL, HARASSMENT
AND UNLAWFUL DISCRIMINATION AT THE CANBERRA HOSPITAL AT THE HANDS OF THE MANAGERS DIRECTLY ABOVE HER NAMELY KN, TD, AND CC.
When I write emails to TD they do not get responded to but I have to chase after the response.
Some of the issues brought up in the complaint reports against me are usually matters that had been discussed and dealt with already.
I have written incident reports that have regularly have be (sic) ignored by the trio as well.
The nature of the complaints tend to portray a picture of excessive scrutiny on my part, which is not helping me to be harmoniously working with my colleagues but rather tearing me apart and isolating me before them.
My own complaints that I bring to the attention of Ms. TD (sic) regarding issues with others do not often get addressed nor do I at least receive feedback. A Case in point, is a few months ago when I was a team leader of a shift, and I got so harassed by a colleague and I reported the matter to Ms. TD (sic) but there was never a feedback to me on whether the staff member in question was ever spoken to or not.
Ms KN has also commented on how I smell nice even when I am in her office on a serious subject matter. She always asks me questions on my perfume and whether I have ever considered "you know what I mean? that make me feel so uncomfortable hearing stuff I would ordinarily hear from a man who wants to start a love affair with me.
There are overtones in her remarks and comments to me almost all the time.
Whenever I would like to arrange a meeting with either of them or any two of them to try and resolve the anxiety and uncertainties causing me depression at work and suggest that I would like to have Kerry CarMichael from HR to be there too. It never happens.
I am also asked to delete suggestions that I input on my Performance Management Agreement.
Once I wrote this statement to Ms. CC "You have advised that you have received complaint about me. For natural justice to occur, I must be advised of the nature of the complaints and who has made them for me to respond. Can you please confirm if a preliminary assessment is going to be conducted on these complains? (sic)” The following day I received a massive dress-down in front other staff members.
On meeting with TD (sic) and CC and asked them "When I send an email to either of you, I have to follow them up as I don't get a response from you. I understand we are all very busy, however we need to work as a team and our communication needs to be open.
Patient of German origins once gave me a racist incident at work when I was told by this
white woman at the next bed that Australia will be all white and that “you will be wiped up, trust me.”
I was so shocked, I asked her to repeat it so I could see her face. Something in me said I should record it, too. But I didn't.
I replied: “Well I have never been told that somebody who is sick prefers white nurses only to attend to him or her instead of any nurse regardless of her Race.”
“Yes, that would be me. I'd prefer the whole fucking nation to be white. How about that?” the white woman replied.
To which I said “You know that's never going to happen, as Australia is a multicultural society right?”
To which the white woman replied: “Oh, it's going to happen. You will be wiped out. Trust me.”
However, when I wanted to report this interaction to Ms. CC, she shooed down almost immediately and she didn't hear any of it nor was she interested to hear about it. That is TCH.
One other female nurse told me “Fuck you Grace”
Please I sick of this attitude and much more I have not been able to say except at a Court of Law where I have no choice but say it all.
In June 2019, the Applicant reported to Dr Shiva Gunapu, Consultant Psychiatrist, that since 2016 all her managers had ‘given her problems’. She ‘felt unsupported’ in her workplace and this ‘led to both anxiety and depression.’ She confirmed that she had been put on a performance management plan twice before and had ‘completed that successfully’. She stated that over a period there was ‘so much bullying’ and she ‘could not go to work’.[15]
[15]Exhibit R2, 249.
The Applicant told Dr Gunapu that on 24 September 2018, three of her patients had to be moved and her other colleagues helped her to move one patient. Her senior nurse (Ms McKenzie) informed her ‘in a very rough manner’ that she should be moving her own patients. In the afternoon following this incident, the Applicant repeatedly attempted to speak to her supervisor (CC), but she was not available. She felt ‘rebuked by her as well’ and ‘did not feel valued’. She ‘felt that she was being set up by her management.’ The Applicant reported to Dr Gunapu that ‘this incident occurred a week after the performance improvement plan was started’ and ‘she was being bullied and discriminated.’ She told Dr Gunapu that she had symptoms in early to mid-2018, and that these worsened in August/September 2018. She believed that her performance plan was ‘unreasonable.’ [16]
[16]Ibid.
In April 2022, the Applicant reported to Dr Jonathan Spear, Consultant Psychiatrist, the ‘longstanding significant personal issues’ she had with three other nurses at the Hospital which commenced in or around 2016.[17] She told him that in December 2017 she received a letter regarding her underperformance which she perceived as indicating racial discrimination. This underperformance management plan was implemented in February 2018 which included receiving feedback, the requirement to attain competency and a performance framework agreement. The Applicant told Dr Spear that she was given repeated letters which threatened termination of her employment and she was unsuccessful with a promotion. In addition, she was directed to wear a new uniform which she considered to be discriminatory. She reported to Dr Spear that there has been issues with the ‘culture’ in the Hospital which included completed suicide by other workers.[18]
[17]Ibid, 3.
[18]Ibid, 3
The Applicant reported to Dr Spear that the ‘final incident’ occurred on 24 September 2018. She told him that in a ‘short’ tone of voice a nurse manager (Ms McKenzie) directed her to move three patients without support from other nurses. She claims she was ‘repeatedly berated and belittled’ in front of three other workers and patients. The Applicant reported to Dr Spear that she experienced ‘emotional distress and light-headedness following the incident.’ She contacted another nurse manager (CC) however she ‘repeatedly declined to discuss the incident and did not meet [the Applicant] until later in the day, after she had met with and reprimanded the alleged perpetrator.’ During her meeting with CC, the Applicant ‘perceived that she did not listen to her concerns about alleged harassment and discrimination.’ CC was aware the Applicant had ‘emotional distress with anger and tearfulness’ however she told the Applicant that ‘she was emotionally distressed because of the performance improvement process’, which indicated to the Applicant that she did not listen to her. CC offered the Applicant Employment Assistance Program Support (EAP) support and a drink of water but ‘refused to allow the Applicant to withdraw until the emotional distress had passed because of concern for safety and wellbeing if driving home with emotional distress.’ Following this incident, the Applicant ceased work and has not returned to any employment.[19]
[19] Ibid, 208.
In an email addressed to the Registrar of the Tribunal and the Attorney-General’s Department dated 23 April 2023, the Applicant outlined the circumstances surrounding her claimed workplace injury in September 2018:
For the record, my name is Grace Amidiong-Otyaluk and I sustained a psychological injury while at work at the Canberra Hospital (TCH) on the 24 September 2018.
This followed years of bullying, harassment by female sexual predators and discrimination at the hands of three line managers who all women and who belong to a sexual grouping of lesbians at the TCH where they view anyone who is not like them or accepts their way of life as an interloper.
…
I know and have met men who are bad but I have never known that women can be worse to fellow women when it comes to administrative action and the way management action is carried out by them.
Those particular ladies or whatever they may officially call themselves at the TCH whose names appear in my AAT Applications which I lodged back in 2019 and following a decision protracted by Comcare to deny liability of my claim can make you feel like a person who becomes involved in a place or situation where you are not wanted or are considered not to belong.
During my employment I sadly watched several well meaning staff including senior doctors and specialists at TCH either abandon their work stations and seek employment elsewhere or they went on to commit suicide in a horrific ways leaving their families and friends shocked, frightened and speechless.
Since then I have myself started to nurse a suicidal ideation if it were not for my faith in Jesus Christ and the support I have received from those who care about me and my very existence.
RESPONDENT’S EVIDENCE
Concerns with Applicant’s work performance
In 2017, the Assistant Director of Nursing (ADON), Ms TD, had been working with the Applicant on improving her standard of her performance in Ward 6A. This was occurring informally through clinical development and further education and training. This had not proven effective as concerns with the Applicant’s standard of clinical care continued and patient safety concerns were noted.[20] TD escalated the issues with the Applicant’s performance to Ms KN, the Director of Nursing (DON). Together with CC, Nurse in Charge and direct supervisor to the Applicant, and Ms Kerry Carmichael, Senior Advisor People and Culture, it was agreed that a formal underperformance management process be initiated for the Applicant in accordance with the Underperformance of the ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017.[21]
[20]Exhibit R2, 261-263, [4].
[21]Ibid.
The Applicant was notified of this by letter from Dr Girish Talaulikar, Executive Director of the Division of Medicine on 20 December 2017. The Applicant was advised that due to her continued underperformance, the Hospital would be initiating a formal Under Performance Action Plan. The following were provided as examples of her underperformance:[22]
·Failure to handover critical clinical information, which resulted in a clinical deterioration of a patient who had to then be transferred to ICU for treatment.
·A delay in restarting an insulin infusion by 30 minutes for a patient transferred from the ICU.
·Failure to administer clexane to a patient.
[22] Exhibit R1, T16.4, 72-74.
The Applicant was given the opportunity to provide a response to Dr Talaulikar’s letter by 12 January 2018, following which a draft action plan was to be created to ensure safe practice.
In her oral evidence at the hearing, CC told the Tribunal that the most severe consequence of the Applicant’s failure to handover the critical information in relation to the patient is that he may have died. She stated that it was appropriate that these performance concerns were addressed with the Applicant because nurses ‘are in charge of people’s lives’ and it is ‘very important that [they] deliver appropriate and timely care.’[23] It was after this ‘serious incident’ that a report was tabled for the Director of Nursing, who with the ADON made a decision to pursue, in accordance with the Enterprise Bargaining Agreement (EBA) a formal underperformance process for the Applicant. As her direct supervisor at the time, CC was required to be part of that process and to help develop the Applicant’s underperformance plan.[24]
[23] Transcript of proceedings, 14 June 2023, 25.
[24]Ibid.
On or about 13 February 2018, Ms KN and CC met with the Applicant. The purpose of the meeting was to discuss the contents of the letter the Applicant had received from Dr Talaulikar, the issues which had been raised in relation to the Applicant’s performance, and how a plan would be used to assist the Applicant in achieving set goals and expectations.[25]
[25]Exhibit R2, 261-263, [5].
Action Plan and performance meetings
On 22 February 2018, the Applicant commenced an Action Plan (‘the Action Plan’) to address her underperformance.[26] The Action Plan set out a range of objectives, strategies and measures of assessment which were designed to improve the Applicant’s performance. The objectives included time management and prioritisation of patient care, adherence to relevant legislation relating to medication administration, accountability and responsibility, the completion of accurate and timely documentation, and taking responsibility within a team of health professionals.[27]
[26] Exhibit R1, T16.5, 75-92.
[27]Ibid.
As part of the Action Plan, CC regularly met with the Applicant to provide feedback on her performance, to discuss any issues which may have arisen, and to encourage the Applicant to reflect upon her performance.[28] CC told the Tribunal that the meetings were every second week, and the meetings were documented.[29] The Clinical Educator also attended the meetings to provide the Applicant with support from an ‘education and resource perspective.’[30] During each meeting, the Applicant was offered the opportunity to provide an explanation and to share her reflections on improvements from the previous meetings.[31] The Applicant was also given an opportunity to advise whether she agreed or disagreed with CC’s comments and provide her own explanation if she wished to do so. The Applicant’s comments, including those comments indicating where she disagreed with CC’s assessment of her performance, were incorporated as part of the underperformance process.[32]
[28]Exhibit R2, 261-263, [5].
[29] Transcript of proceedings, 14 June 2023, 25.
[30]Ibid, 26.
[31]Exhibit R2, 267-276, [12].
[32]Ibid, [14].
In her Outline of Evidence dated 20 August 2019, CC described her meetings with the Applicant during the underperformance management period:[33]
Throughout the formal underperformance management period I met regularly with Grace to provide feedback on her performance, discuss any issues which may have arisen and encourage Grace to reflect on her performance. These meetings were all undertaken in an office and we did not discuss performance issues on the open floor. During each meeting, Grace was offered the opportunity to provide an explanation and to share her reflections on improvements from the subsequent meetings. My observations during these meetings were that Grace was unable to reflect on the incidences, especially around the clinical issues, and unable to identify how she might change her practice or do things differently in the future in order to avoid the incidences occurring again, Grace would at times become defensive.
[33]Ibid, [12].
On 7 March 2018, the Applicant attended a performance meeting with CC. It was noted that the Applicant’s documentation had improved and that the notes made in her patients' medical records were more extensive. CC advised the Applicant that an issue had been raised about her not having identified on her checks that a patient under her care who had been administered Panadol had an allergy to that medication. The Applicant agreed to the overall assessment provided in that meeting.[34]
[34] Exhibit R1, T16.5, 86.
On 21 March 2018, the Applicant attended a performance meeting with CC. At that meeting, CC discussed various matters of feedback that she had received from staff as well as issues she had observed. These were as follows:[35]
·Patient JK, who was concerned about the Applicant removing his vascath on the morning of 20 March 2018. JK had informed another staff member that he did not feel the Applicant was competent in removing his vascath, and he was unsure of her performing that procedure.
·Patient JK complained that the Applicant had not put his Heparin infusion into a mobile IV pole after having asked her to do so. JK had to use the call bell to seek assistance from another staff member, as he needed to go to the bathroom but could not do so due to him not having a mobile IV pole.
·The Applicant had not adequately attended to a dressing required for patient DA and it needed to be re-attended by another nurse.
[35]Ibid, T16.6, 94.
The Applicant was asked to reflect on this feedback.
On 22 March 2018, the Applicant attended a performance meeting with CC. The Applicant’s upcoming medications competency assessment was discussed. She was asked to reflect on the preceding day’s conversations and come up with ideas on how to improve her confidence and improve patient service. The Applicant agreed to the overall assessment provided in that meeting.[36]
[36]Ibid, T16.5, 87.
On 4 April 2018, CC sent an email to the Applicant summarising feedback given to her during the period from 8 March to 15 March 2018. CC noted that there had been issues with the Applicant’s communication with patients and other staff, and she gave two examples of where the Applicant had again not communicated effectively.[37]
[37]Ibid, T16.6, 97.
On 6 April 2018, the Applicant attended a performance meeting with CC. The Applicant was asked to reflect on medication errors after she was observed leaving medications in a pot at a patient’s bedside without witnessing the patient take those medications. The Applicant was asked to undertake NPS medication safety modules, to reflect on her practice, and consider how she could improve the confidence of patients in her care. The Applicant agreed to the overall assessment provided in that meeting.[38]
[38]Ibid, T16.5, 88.

On 20 April 2018, the Applicant attended a performance meeting with CC. The Applicant and CC discussed an altercation which occurred between the Applicant and another nurse. CC stated that she would sit down with the Applicant and the other nurse to discuss the incident. CC also informed the Applicant of a medication issue which had been raised with her. The Applicant was asked to reflect on her communication and to bring her reflections journal to the next meeting for discussion. The Applicant did not agree with the overall assessment provided in that meeting, and she provided further comment on the incident with the other nurse and how she had not obtained an apology.[39]
[39]Ibid, T16.5, 89.
On 8 May 2018, the Applicant attended a performance meeting with CC. The meeting focused on feedback that had been received from a female patient in the Applicant’s care. The Applicant had offended the patient by telling her that she needed hearing aids. CC asked the Applicant to again reflect on her communication with her patients. The Applicant disagreed with the overall assessment of that meeting. She stated that she was unsure whether the patient used hearing aids and was enquiring for that purpose.[40]
[40]Ibid, T16.5, 90.
On 17 May 2018, the Applicant attended a performance meeting with CC. CC discussed written feedback that she had received from a Senior Registered Nurse (RN) regarding two issues. The first related to the Applicant not having completed her patient notes prior to leaving work. The second concerned the level of patient care that was provided. The Senior RN received a complaint from a patient, MD, that he was left lying down for one hour without an iron infusion being given to him by the Applicant.[41] The Senior RN had also discovered that the Applicant had not taken vital signs of her patient, NS, who was unwell. The Applicant’s inaction in dealing with MD led to a formal written complaint by them which was discussed with the Applicant. The Applicant did not agree with the overall assessment provided in that meeting. CC advised that she would meet with MD and get back to the Applicant.[42]
[41]Agency Documents, A9, 20-21.
[42] Exhibit R1, T16.6, 99.
On 25 May 2018, the Applicant attended a performance meeting with CC. CC informed the Applicant that she had spoken to MD about his complaint and that he felt that the Applicant had ignored him and was uncaring. The Applicant did not agree. CC also advised the Applicant that she had received a complaint from another staff member of a further altercation in which the Applicant was involved. CC advised that she was concerned about the reoccurring issues with communication, and the Applicant had not demonstrated progress on the areas she was asked to reflect on. The Applicant disagreed with CC and considered she had attended to all her reflections.[43]
[43]Ibid, T16.6, 101-102.
On 1 June 2018, the Applicant attended a performance meeting with CC and Ms Jenny Hegarty, Nurse Manager. CC discussed concerns she had with the time it was taking for the Applicant to handover her patients. It was also noted that there appeared to be little improvement in the Applicant's communication with other staff and patients. The Applicant was asked about her reflection journal and was asked to share some of her reflections. The Applicant only brought one example of a reflection in which she summarised the issue but did not consider how things could have been done differently. The Applicant agreed with the overall assessment provided in that meeting.[44]
[44]Ibid, T16.6, 103-104.
On 18 June 2018, the Applicant attended a performance meeting with CC and Ms Amanda Cumberland. It was noted that the Applicant had not sought leave for a shift swap. The Applicant was reminded of the expectation that she seeks formal approval should she wish to swap her shift. The Applicant was also made aware of an email complaint from Peter Read, Wardsperson, regarding the lack of assistance provided for patient transfer. The Applicant agreed with the overall assessment provided in that meeting but disagreed with Mr Read’s account.[45]
[45]Ibid, T16.6, 105-106.
On 13 August 2018, Dr Talaulikar wrote to the Applicant in relation to her underperformance management process. He stated that he understood that the Applicant had completed and fulfilled most of the requirements of the Action Plan in June 2018. He noted that the Applicant had undertaken a Competency Based Assessment (CBA) and directed the Applicant to meet with CC on 4 September 2018. The purpose of that meeting was for the Applicant and CC to review and draft the Applicant’s ongoing Performance Framework Agreement, incorporating as necessary any insights from the CBA feedback report.
At the hearing, CC told the Tribunal that the Applicant did not pass the CBA that was undertaken. She confirmed that this could have resulted in the termination of the Applicant’s employment, but the Hospital did not take this step. A Performance Management Plan was developed for the Applicant for the next 12 months ‘utilising the criteria that was not yet met in [the Applicant’s] underperformance process.’[46] This was undertaken but was not completely signed-off on.’[47] It was due to be signed off on or about 24 September 2018. CC explained that had the Applicant made the changes that were agreed at the previous meeting, the Performance Management Plan would have been signed-off and she would have ‘passed’.[48]
[46] Transcript of proceedings, 14 June 2023, 26.
[47] Ibid.
[48]Ibid, 27.
24 September 2018 incident
On 24 September 2018, Ms McKenzie and CC had discussions with all Ward 6A staff about priorities that afternoon, including bed movements that needed to occur to accommodate new patients who required special care. The Applicant was responsible for patients who needed to be moved to other bed spaces on the Ward to enable two infectious patients to be admitted to a two-bedded room.[49]
[49]Exhibit R2, 267-276, [18].
In her Further Outline of Evidence dated 25 August 2022, CC explained why bed movements were often required and the consequences if they do not happen:[50]
The need for bed movement is and was very common in Ward 6A. On 24 September 2018. I recall one to two of the patients who were assigned to Grace were being moved so that the room could operate as an influenza isolation room. That was for our influenza patients who needed to be isolated. If patients are not moved in a timely manner, then other patients must wait in the emergency department. Delays in moving patients results in sub-optimal care to patients awaiting transfer to the ward and an inefficient use of hospital resources.
[50]Ibid, 277.
In her oral evidence, Ms McKenzie told the Tribunal that the consequence of delays in the movement of patients is that it holds up the flow of patients that are admitted to the emergency department or those that may require an intensive care bed. It also can result in patients not receiving the specialised care they require.[51] CC explained to the Tribunal that leaving a patient in the emergency department can delay their ‘journey in the system’ and this ‘can cause complications and increased length of stay’ in hospital.[52]
[51] Transcript of proceedings, 14 June 2023, 18.
[52]Ibid, 28.
In her Outline of Evidence, Ms McKenzie described her interaction with the Applicant in relation to her moving the patients in her care:[53]
An example of the performance related issues to which I have referred is the direction that I had given to Grace on 24 September 2018 in relation to patient movements. I had to remind Grace on three occasions of the requirement that she move the two patients under her care urgently. This was because we were expecting the arrival of patients requiring special care that afternoon and the rooms needed to be cleaned and set up. Grace undertook the first patient move with the assistance of other nurses but could not be found when her second patient had to be moved. I subsequently observed Grace moving medication tubs between trolleys, leaving other nursing staff to move her second patient.
On the third occasion in which I directed Grace to attend to moving her patients I was firm in my delivery. I recall telling Grace that she should be assisting moving the patient as the patient was assigned to her and staff from the other teams were due to finish work. The conversation was extremely brief and occurred in passing whilst I was on my way to
attend to other matters. I would estimate that it would have lasted no more than 10
[53]Exhibit R2, 264-266, [9]-[10].
[54]Ibid, 264-266, [9]-[10].
seconds. As a result I did not think much of that conversation. I deny that I yelled at Grace or that I was aggressive. I was frustrated as I would have expected that Grace, having worked within Ward 6A for many years and being fully aware of the pressure the team was under, would have understood the push for movements to be done quickly.[54]
In her oral evidence at the hearing, Ms McKenzie stated that the Applicant’s duties required her to comply with her direction on the first occasion it was given rather than being required to be told three times what she should do. She agreed that the Applicant’s conduct was ‘insubordinate’ to her direction. She also agreed that when she gave the direction it was a ‘low level of informal counselling’ and she was ‘firm’ with the Applicant. She told the Tribunal that the Applicant ‘wasn’t listening to what [she] was saying, and [she] needed it done urgently as [she] was getting pressured from executive to get this movement happening.’[55] She agreed that this incident was ‘another example’ of the ‘performance concerns’ in relation to the Applicant.[56]
[55]Transcript of proceedings, 14 June 2023, 19.
[56]Ibid.
In her Outline of Evidence dated 20 August 2019, CC described the conversation she overheard between the Applicant and Ms McKenzie:[57]
I recall overhearing two of the conversations between Ms McKenzie and Grace. These
conversations occurred within the immediate vicinity of my office within the Ward whilst I had the door open. Ms McKenzie had reminded Grace of the requirement to move her
assigned patients in accordance with the debriefing that had occurred earlier in the
afternoon. On the second occasion Ms McKenzie spoke to Grace she appeared short in the tone of voice she used with Grace. I would describe the word "short" when referring to Ms McKenzie's tone as meaning a firm and direct manner of talk. Ms McKenzie did not yell and she was not aggressive with Grace. I did not hear any response from Grace.
[57]Exhibit R2, 267-276, [18].
At the hearing, CC told the Tribunal that in her view Ms McKenzie’s direction was ‘reasonable’ because ‘she was asking [the Applicant] to do a reasonable action, a reasonable directive to move the patient to another space so that [they] could open a two-bedded area for two flu patients.’[58] She agreed that given the Applicant was told three times that she needed to move the patient, Ms McKenzie ‘was essentially admonishing or counselling or instilling the right degree of discipline into [the Applicant] and ‘it was not usual to have to do that with nurses’.[59]
[58] Transcript of proceedings, 14 June 2023, 29.
[59]Ibid.
In her Outline of Evidence, CC described the conversation she had with Ms McKenzie after she had given the direction to the Applicant:[60]
Shortly after the second conversation I overheard between Ms McKenzie and Grace, Ms McKenzie attended my office to meet for an unrelated issue. At the conclusion of the meeting, Ms McKenzie provided me with a very short debrief of the conversations she had with Grace that afternoon. She explained that it was the third time she had spoken to Grace about moving her patients and had reminded her about taking her tea-break. Afternoon tea breaks are scheduled between 2:30pm and 3:30pm, This is to ensure that all afternoon staff are covered by morning staff when on break. At 3:30pm the morning staff conclude their shift meaning that there are no surplus staff to provide cover if a nurse from the afternoon shift were to take a tea-break.
[60]Exhibit R2, 267-276, [18].
CC described her conversation with the Applicant who came to her office following her interaction with Ms McKenzie:[61]
After Ms McKenzie had departed from my office and the Ward, Grace came into my office and shut the door. I recall that Grace stood in front of my desk and began to explain an interaction she had with Ms McKenzie that afternoon, I advised Grace that I had overheard some of the conversation and that from my perspective Ms McKenzie had given her a reasonable directive which Grace did not follow. I proceeded to listen to Grace's perspective during which her tone of voice increased to the extent in which she was yelling and aggressive in her manner and effect. At this point I opened the door of my office as I was concerned that Grace's demeanour could escalate further and I wanted to put myself in a situation where I was safe and could call upon other staff for support if necessary.
Grace's demeanour subsequently de-escalated from anger and aggression to sorrow and she began to cry. At this point, I closed the door to my office as I wanted to protect her privacy as she was weepy (sic) loudly and appeared inconsolable. Grace asked me whether she could leave to go home. I advised Grace that I did not expect her to continue her shift but I was not comfortable releasing her until she had calmed down. Grace was in a highly emotional state and I was concerned for her wellbeing, I did not want her driving home or going out in the Ward in such a state. After approximately 20 minutes Grace settled to the point where I felt as though she could leave safely. I then approached the Team Leader on duty at the time and advised that Grace was in no state to continue working and to reallocate staff as I would be sending her home on personal leave, I made Grace aware that I would follow up with her in regards to her welfare the following day.
[61]Ibid, 270.
CC confirmed that she did not continue with the administrative action once it became clear to her that the Applicant was distressed.[62] She did not allow the Applicant to ‘withdraw from the trigger’ for reason that it would have resulted in the Applicant going out into the Ward in front of patients and other staff members and this ‘would have breached her privacy and confidentiality.’[63]
[62]Exhibit R2, 277-293; Transcript of proceedings, 14 June 2023, 30.
[63] Transcript of proceedings, 14 June 2023, 30.
In her Further Outline of Evidence, CC described her reaction to the Applicant’s emotional response to the incident:
This outburst from Grace took me by surprise. First, I did not think the interaction between her and Louise was significant enough to warrant an emotional response. Secondly, it was such an extreme emotional outburst. I would describe it as BIG emotion on a scale I had never seen from Grace before.
… Emotions from Grace had not been observed by me in my management of her. At that time, she was going through an underperformance process and I understood an underperformance process can be exceptionally stressful. That was why I offered her access to EAP all the way through. Grace had never had an emotional outburst before. However, that afternoon Grace went from closing the door and yelling at me very angrily over relatively minor interactions with Louise to uncontrollable sobbing and crying. I felt she had had a breakdown in that moment.
In her oral evidence, CC said that she had no evidence that the Applicant had been under any trauma at the time of the incident.[64]
[64]Ibid, 14 June 2023, 29, 31.
In her Outline of Evidence, CC described the contact she had with the Applicant in the days following the incident:
I called Grace on the 25 September 2018 and enquired how she was. She informed me that she had an appointment with a psychologist that day and an appointment with her GP on 26 September 2018.
On 3 October 2018 I received a call from Grace whilst she was on personal leave seeking a time to meet to discuss her return to the Ward, At the conclusion of the call I sent her an email to say that after receiving some HR advice I didn't think it was appropriate for us to meet whilst she was on personal leave. I have not had any contact with Grace since this time.
In her oral evidence, CC told the Tribunal that she contacted the Applicant ‘[o]ut of concern for her welfare’ and she ‘wanted to make sure that [the Applicant] was okay.’[65]
[65]Ibid, 31.
Rehabilitation assessment

On 5 October 2018, Ms Julie-Anne Wales, rehabilitation case manager, sent an email to the Applicant. Ms Wales advised the Applicant that arrangements were being made to support her with rehabilitation and a sustainable return to work.[66]
[66]Ibid, T6, 24-25.
On 12 October 2018, the Respondent determined under section 36(3) of the SRC Act that the Applicant undergo an examination of her capability to undertake a rehabilitation program.[67]
[67]Ibid, T10, 38-39.
On 8 November 2018, Advanced Personnel Management (APM) prepared an Initial Needs Assessment Report. It was noted that the Applicant described impairments with engagement in activities of daily living such as motivation, grooming, cooking and cleaning. The Applicant continued to experience ongoing sleep impairments with night terrors and reported that her mood fluctuated between high and low. It was concluded that despite the Applicant being suitable for a rehabilitation program, such a program should be delayed until the scheduled independent medico-legal examination on 13 November 2018 was undertaken and recommendations surrounding treatment and return to work were discerned.[68]
MEDICAL EVIDENCE
[68]Ibid, T19, 113-122.
Dr Chi Wing Lai, General Practitioner
The Applicant’s General Practitioner, Dr Lai, returned documents in response to a summons, initially on 15 May 2019. Subsequently, the Tribunal issued two more summonses to Dr Lai for production of updated records. Documents were produced by Dr Lai on 31 January 2022 and 15 June 2022.[69]
[69]Exhibit R2, 375-512.
On 1 August 2018, the Applicant presented for a consultation with Dr Lai. She reported experiencing bullying and harassment at work for over one year. She said she had seen a psychologist three times and was feeling traumatised and afraid of attending work.[70]
[70] Exhibit R1, T13, 51.
On 27 August 2018, the Applicant consulted Dr Lai. She sought a referral to a psychologist and requested a medical certificate for six weeks.[71]
[71]Ibid, T13, 50-51.
On 26 September 2018, the Applicant saw Dr Lai and advised him that she had seen a psychologist the day prior. She gave a history of conflict with her assistant supervisor on 24 September 2018 and reported ‘feeling ignored’ which caused her to cry. She said she had tried to approach Human Resources with no results and had been advised by the counsellor to be off work on workers' compensation.[72]
[72]Ibid, T13, 50.
On 11 October 2018, the Applicant attended a consultation with Dr Lai. She reported feeling harassed by the return-to-work team. She described having a loss of appetite, loss of interest and restless sleep.[73] Dr Lai diagnosed the Applicant with ‘anxiety and depression due to workplace bullying’ and certified her as unfit for work between 13 October 2018 and 4 November 2018. Dr Lai recommended that the Applicant obtain weekly psychological counselling.[74]
[73]Ibid, T13, 49-50.
[74]Ibid, T9, 34-37.
On 28 October 2018, Dr Lai provided a report at Comcare's request. He diagnosed the Applicant with ‘anxiety and depression as a result of conflict at work and failure to resolve complaints’. Dr Lai stated that the Applicant consulted him on 1 August 2018 complaining of harassment and bullying at work for over a year. She reportedly felt upset, traumatised and afraid of turning up to work. She had approached Human Resources for help with no resolution and was seen by a psychologist on three occasions. The Applicant reported being ‘completely ignored’ when she attempted to raise her concerns with her assistant supervisor on 24 September 2018 causing her to break down and cry.[75]
[75]Ibid, T13, 47.

In Su v Comcare,[123] Member Webb expressed the requirement of ‘contribution to a significant degree’ when approving of Justice Finn’s approach to interpretation of this phrase in Comcare v Sahu-Kahn,[124] as follows:
When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.
(Footnotes omitted).
[123][2011] AATA 934 at [5].
[124](2007) 156 FCR 536.
On the basis of the evidence before it, and for the reasons that follow, the Tribunal finds that the Applicant’s employment contributed to her ailment to a significant degree.
Dr Gunapu considered that the Applicant's condition was contributed to by the following performance management actions:
a)Being managed on a formal underperformance action plan from February 2018;
b)Regular feedback and/or performance appraisals provided as part of her underperformance action plan; and
c)Being directed on 13 August 2018 to attend a meeting with her supervisor to discuss her competency-based assessment and ongoing performance framework agreement.
The Respondent contends that the following are additional examples of performance management actions that were causative of the Applicant’s condition:[125]
d)The Applicant being admonished and otherwise spoken to by Ms McKenzie, for failing to move her patients in a timely manner on 24 September 2018; and
e)The action taken by CC in connection with the above action taken by Ms McKenzie.
[125] Respondent’s Outline of Submissions at 238.
The Applicant’s evidence is that she first noticed symptoms of her condition on 24 September, being the date on which the performance management actions listed in [150] occurred.
The Tribunal is satisfied on the balance of probabilities that the performance management actions identified in [149] to [150] contributed, to a significant degree, to the Applicant’s ailment. Accordingly, the ailment satisfies the definition of ‘disease’ in section 5B(1) of the SRC Act.
4)Is the ‘disease’ excluded from the definition of ‘injury’ in section 5A of the SRC Act on the basis that it was suffered as a result of ‘reasonable administrative action taken in a reasonable manner’ in respect of the Applicant’s employment?
The Tribunal must consider whether the Applicant’s ‘disease’ is excluded from being a compensable ‘injury’ under section 5A(1) for reason that it was suffered as a result a ‘reasonable administrative action taken in a reasonable manner’ by the Applicant’s employer within the meaning of section 5A(2).
To determine whether the ailment suffered by the Applicant is excluded by section 5A(2) from being a compensable ‘injury’ under section 5A(1), it is necessary to determine the following:
(a)Were the performance management actions taken by the Applicant’s supervisors listed in [149] and [150] ‘administrative action’ taken in respect of the Applicant’s employment?
(b)Was the administrative action ‘reasonable’?
(c)Was the action ‘taken in a reasonable manner’?
(d)Was the condition suffered by the Applicant ‘as a result of’ the administrative action?
(a)Were the performance management actions ‘administrative action’?
The term ‘administrative action’ is not given any special meaning under the SRC Act. In Commonwealth Bank of Australia v Reeve (‘Reeve’),[126] Rares and Tracey JJ held that ‘administrative action’ referred to in the exclusion part of section 5A(1):[127]
[126][2012] FCAFC 21; (2012) 199 FCR 463.
[127] Ibid at [57] and [60].
… was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.
…The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
Having considered the Explanatory Memorandum to the Bill that introduced the amendments to the SRC Act, Rares and Tracey JJ observed:[128]
[128] Ibid at [73]-[74].
Here, the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1).
However, the Explanatory Memorandum did not suggest that “administrative action” was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.
The evidence before the Tribunal is that the performance management actions taken by the Applicant’s supervisors listed in [149] and [150] were in relation to the underperformance by the Applicant of her duties as a RN Level 1 and therefore were directed to her employment as an employee of the Hospital as opposed to action defining or delimiting the everyday duties or tasks assigned to the Applicant.Accordingly, the Tribunal is satisfied that they were ‘administrative action’ for the purposes of section 5A of the SRC Act.
(b)Were the performance management actions ‘reasonable administrative action’?
Section 5A(2) of the SRC Act lists actions which for the purposes of subsection(1) are examples of ‘reasonable administrative action’:
(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 subsection (a), (b), (c) or (d);

The Tribunal is satisfied that the performance management actions listed in [149] and [150] are examples of ‘reasonable administrative action’ contemplated by the following paragraphs of sub-section 5A(2) of the SRC Act:
a)Being managed on a formal underperformance action plan from February 2018 – paragraph 5A(2)(a) and/or (2)(e);
b)Regular feedback and/or performance appraisals provided as part of her underperformance action plan - paragraph 5A(2)(a), 2(b) and/or (2)(e);
c)Being directed on 13 August 2018 to attend a meeting with her supervisor to discuss her competency-based assessment and ongoing performance framework agreement - paragraph 5A(2)(a) and/or (2)(e);
d)The Applicant being admonished and otherwise spoken to by Ms McKenzie, for failing to move her patients in a timely manner on 24 September 2018 - paragraph 5A2(b), (2)(d) and/or (2)(e); and
e)The action taken by CC in connection with the above action taken by Ms McKenzie - paragraph 5A2(a), (2)(d) and/or (2)(e).
The Tribunal notes that the examples in section 5A(2) are not exhaustive, and while the identified performance management actions may not fit exactly within the specific actions listed in section 5A(2), they have a close similarity with these examples.
For the exclusion to the definition in s 5A of the SRC Act to apply, it is only necessary that the Applicant’s ‘disease’ was suffered as a result of one of the performance management actions listed in [149] and [150]. In Comcare v Martin, French CJ, Bell, Gageler, Keane and Nettle JJ explained in relation to s 5A(1): [129]
[129] [2016] HCA 43; 258 CLR 467 at [45]; See also Comcare v Drinkwater [2018] FCAFC 62; 260 FCR 150 at [72]-[73].
When the exclusionary phrase is so read, it becomes apparent that 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.[130]
[130]At [45] per French CJ, Bell, Gageler, Keane and Nettle JJ.
The Tribunal is satisfied that the performance management actions, specifically the Applicant being admonished and otherwise spoken to by Ms McKenzie for failing to move her patients in a timely manner on 24 September 2018, and the action taken by CC in connection with Ms McKenzie’s action, satisfy the definition of ‘reasonable administrative action’ for the purposes of section 5A(1) of the SRC Act.
(c)Was the administrative action ‘taken in a reasonable manner’?
Whether or not an administrative action was ‘taken in a reasonable manner’ is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned.[131]
[131]Stieglitz v Comcare [2010] AATA 263; Thompson and Comcare [2012] AATA 752, at [61].
In Drenth and Comcare, Deputy President Jarvis and Professor Ben-Tovim explained:[132]
[132][2011] AATA 582 at [75] and [76].
To determine whether the actions were reasonable involves an objective judgment, taking into account all of the circumstances in which they occurred, and determining whether they were rational, lawful and not irrelevant or disproportionate to what was required; and the question of what was “reasonable” does not involve determining whether the action could have been done more reasonably or in a different way more acceptable to the decision-maker: see Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at [78]–[80], and the helpful analysis of Professor Robin Creyke, Senior Member, and Dr Peter Wilkins, Member, in Re Lynch and Comcare.
The standard of reasonableness in section 5A is not a standard of perfection, nor does it require that the administrative action be faultless. In Nguyen and Comcare (Compensation),[133] Deputy President McCabe explained:
[133] [2018] AATA 1623 (‘Nguyen’) at [25] and [63]. See also Fairall and Comcare (Compensation) [2021] AATA 281 at [38] and [42] and Barry and Cleanaway Operations Pty Ltd (Compensation) [2021] AATA 369 at [206].
The cases make clear the Tribunal should not expect perfection in management. If there are specific incidents or behaviour which reflect on whether the subsequent administrative action is reasonable, questions might legitimately focus on those matters. But there is unlikely to be much profit in questioning every decision simply with a view to asking whether those decisions could have been made differently or better.
In Von Stieglitz and Comcare, Senior Member Creyke and Member Miller stated:[134]
[134][2010] AATA 263 at [67].
Whatever administrative action is to be taken must be “reasonable”. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’, Dr Campbell summed up many facets of these principles in Re Georges and Telstra Corporation Ltd when he said:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.’
It has been recognised that there may be more than one way of doing things reasonably. In Comcare v Martinez (No 2)[135] the Federal Court agreed with Lander J in Keen v Workers Rehabilitation and Compensation Corporation (‘Keen’)[136] who stated:
[135][2013] FCA 439; 212 FCR 272 at [81]-[82], [83].
[136][1998] SASC 7056; (1998) 71 SASR 42.
Whether the administrative action was taken in a reasonable manner by the employer 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 worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
The Full Court in Keen found:[137]
[137] at [63] Cited with approval by Cowdroy J in National Australia Bank Limited v KRDV (2012) 204 FCR 436 at [51].
In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
It also is accepted that here are times when an employer needs to be firm when taking reasonable administrative action in a reasonable manner in respect of an employee’s employment. In Modirzadeh and Comcare[138] the applicant claimed that him being told by his supervisor to ‘shut up’ was abusive and inconsistent with reasonable disciplinary action. The Tribunal considered that the supervisor’s use of inappropriate language must be viewed in the context in which it occurred. It accepted that the applicant was unwilling to listen to the counselling that the supervisor was attempting to provide for the applicant’s benefit in the context of a disciplinary review process.[139]
[138][2004] AATA 914 at [137]-[138].
[139] At [138]. See also Nguyen a professional employee not handled with great sensitivity at [62]-[73] and Schmid v Comcare [2003] FCA 1057; 77 ALD 782 at [40]-[42] and [85]-[89] a superior officer making derogatory comments about a subordinate in front of others.
The Tribunal finds, based on the evidence before it, and for the following reasons, that the ‘reasonable administrative action’, specifically the performance management actions taken by the Applicant’s supervisors on 24 September 2018, were ‘taken in a reasonable manner’ by her employer.
The Applicant needed to be told by Ms McKenzie on three occasions on the afternoon of 24 September 2018 that she was required to move her patients so that the two influenza patients could be accommodated in Ward 6A. The Applicant’s failure to perform this duty, including after being asked to do so, not once but twice, by Ms McKenzie amounted to repeated insubordination by the Applicant to the directions of her supervisor. The Tribunal finds that it was necessary and reasonable for Ms McKenzie to admonish and/or speak to the Applicant in a firm tone when she directed the Applicant for the third time to move her patients. In making this finding, the Tribunal has had regard to the context in which the directive was given by Ms McKenzie to the Applicant, being that they were nurses working in a busy ward of a hospital that was to receive two infectious influenza patients that afternoon. The urgency surrounding the required movement of the Applicant’s patients to accommodate these patients contributes to the reasonableness of the directive given by Ms McKenzie to the Applicant.
The Tribunal further finds that the conversation which occurred between the Applicant and CC in her office following the directive given to the Applicant by Ms McKenzie was reasonable. It accepts CC’s evidence that her interaction with the Applicant was sensitive to her level of emotional distress, and when she became extremely upset and began crying inconsolably, she disengaged from the administrative process and gave the Applicant tissues, water and raised the availability of the EAP. CC gave the Applicant the time she needed to compose herself and did not allow her to leave her office and re-enter the ward so that she would not be seen by patients and other staff in a distressed state thereby protecting her privacy. She also made clear that the Applicant should not drive home while she was upset, thereby ensuring that she would not put herself in danger. The Tribunal does not concur with Dr Spear’s opinion that CC should not have permitted the Applicant to ‘withdraw from a trigger’ because of her concern for the Applicant’s safety and wellbeing if she was driving home with emotional distress.
In summary, the Tribunal is satisfied that, assessed objectively and taking into account all the circumstances, the direction given by Ms McKenzie to the Applicant and the interaction between CC and the Applicant thereafter on 24 November 2018, was ‘reasonable administrative action taken in a reasonable manner’ as contemplated by section 5A(1) of the SRC Act.
(d)Was the condition suffered by the Applicant ‘as a result of’ the administrative action?

The Full Federal Court in Lim v Comcare,[140] applying Comcare v Martin,[141] explained that to satisfy the causal requirement in the exclusion in section 5A(1), the Tribunal has to be satisfied that the Applicant would not have suffered the ailment if the administrative action had not been taken.[142] The Court explained:
[140][2017] FCAFC 64 at [41].
[141] [2016] HCA 43; 339 ALR 1; 91 ALJR 29 at [45].
[142]See also Hollis v Comcare [2017] FCA 558, at [5].
… where both employment and non-employment factors are posited as contributing to an ailment or an aggravation of such an ailment (within the meaning of s 5B(1)), in order to determine whether s 5B applies, a finding would need to be made as to whether the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. If there were an affirmative finding, then the further questions would arise as to whether or not there was reasonable administrative action taken in a reasonable manner; and, if so, whether or not the disease would have been suffered by the employee if that action had not been taken. If the Tribunal were so satisfied, then the exclusion to the definition of “injury” in s 5A(1) would apply.
In her compensation claim, the Applicant identified 24 September 2018 as the date on which she first noticed symptoms of her condition. On the basis of her evidence, the Tribunal is satisfied that the Applicant would not have suffered the ailment if the administrative action, specifically the performance management actions by Ms McKenzie and CC on 24 September 2018, had not been taken.
Accordingly, the Tribunal is satisfied that the performance management actions taken on 24 September 2018 qualify as ‘reasonable administrative action taken in a reasonable manner’ by the Respondent, and accordingly the exclusion in section 5A(1) applies. Accordingly, the Tribunal finds that the Applicant did not suffer an ‘injury’ for the purposes of section 5A of the SRC Act for which the Respondent is liable to pay her compensation under section 14 of the Act.
Perceived bullying, discrimination and harassment
In Wiegand v Comcare (‘Wiegand’),[143] von Doussa J made the following observations:
[143] [2002] FCA 1464; 72 ALD 795.
In terms of the definition of disease, the question which the [Administrative Appeals Tribunal (the tribunal)] was required to consider was whether Mr Wiegand’s ailment or an aggravation of the ailment “was contributed to in a material degree by the employee’s employment”. In relation to the concept of employment as a contributing factor, the respondent concedes that the following passage from the judgment of Kitto J (with whom Taylor and Owen JJ agreed) in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 is directly applicable:
“Where it is possible to identify a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.’”
Federal Broom Co Pty Ltd v Semlitch concerned the definition of “injury” in s6(1) of the Workers’ Compensation Act 1926-1960 (NSW). That definition extended “injury” to include ‘the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration;…”. In the definition of “disease” in s 4 of the [Safety, Rehabilitation and Compensation Act 1988 (Cth) the SRC Act], the notions of acceleration, exacerbation or deterioration are no longer mentioned, but for practical purposes I consider this provides no basis for distinguishing the observations of Kitto J. It will also be noted that the definition of “disease” in the SRC Act requires the employee’s employment contributed to a “material degree”, but the introduction of the notion that the contribution must be “material” was held not to be a ground for differently construing the requirements for the definition of “disease” in Treloar v Australian Telecommunications Commission.[144]
[144]Ibid, [23].
…
It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to “employment” which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.[145]
[145]Ibid, [24].
…
… there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.[146]
[146]Ibid, [31].

In DXVN and Telstra Corporation Limited (Compensation),[147] Deputy President Sosso considered whether the Wiegand ‘perception test’ applied in the factual circumstances. He observed:[148]
[147][2018] AATA 2152.
[148]Ibid, [173(k)] - [173(l)].
I read the authorities as mandating a minimum threshold requirement, namely, that the event or series of events that results in a claimant forming a belief, no matter how unreasonable, has in fact occurred in at least some form resembling the recollections of the claimant;
I do not read the authorities as allowing a claim to proceed where a claimant’s pre-existing neurosis is, as is in this case, the cause of an incident, and where a claimant’s perceived version of events bears no relationship to what actually occurred. There must be a ‘factual floor’ which supports a person’s perception of events, unreasonable though that perception may be. Here the Applicant’s version of the incident is totally inconsistent with the facts found by the Tribunal. Accordingly, there is no such factual floor that would support the Applicant’s perceptions of what occurred.
The Tribunal has considered the Applicant’s evidence contained in her various written statements in which she alleges that she was subjected to bullying, discrimination and harassment in her employment at the Hospital, specifically by CC, TD and KN. She claims that she was she was directed to wear a new uniform which she considered to be discriminatory, was the subject of unfounded allegations about her work performance and subjected to sexual harassment. CC’s evidence is that all nursing staff were asked to wear the new uniform, and she categorically denies any suggestion that the Applicant was discriminated against in this regard or otherwise.[149] TD’s evidence is that she dealt appropriately with all complaints made by the Applicant in relation to patients and staff,[150] and she does not recall there being any racist or sexist comments made to the Applicant by staff or patients.[151]
[149]Exhibit R2, 277-293, [4].
[150]Ibid, 257-260, [7].
[151] Ibid, [8].
On the basis of the evidence before it, the Tribunal finds that the Applicant’s perceived version of events bears little or no relationship to what actually occurred in her workplace. Accordingly, it is not satisfied that there is a factual basis which supports the Applicant’s perception of events, as her version of her interactions with her supervisors is inconsistent with their evidence which is accepted by the Tribunal. Accordingly, as there is no ‘factual floor’ that supports the Applicant’s perceptions of what occurred, the Tribunal is not satisfied that she was exposed to some incident or state of affairs in the course of the performance of her duties and to which she would not otherwise have been exposed, which is a contributing factor to the ailment she suffered. Therefore, it finds that the Applicant did not suffer a ‘disease’ for the purposes of section 5B(1) of the SRC Act, and accordingly the Respondent is not liable under section 14 to pay compensation for an ‘injury’ as defined in section 5A(1)(a) of the Act.
Rehabilitation program – section 37 SRC Act
In the absence of an ‘injury’ there is no obligation on an employer to provide a rehabilitation program to an employee pursuant to section 37(1) of the SRC Act. As the Tribunal has found that the Applicant did not suffer an ‘injury’, the Tribunal finds that there is no obligation on the Respondent to provide her with a rehabilitation program.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

........................................................................
Associate
Dated: 14 August 2023

Date(s) of hearing:

13 and 14 June 2023

Counsel for the Respondent:

P. Woulfe, Blackburn Chambers

Solicitors for the Respondent:

A. Cains, McInnes Wilson Lawyers

Date(s) of hearing:	13 and 14 June 2023
Counsel for the Respondent:	P. Woulfe, Blackburn Chambers
Solicitors for the Respondent:	A. Cains, McInnes Wilson Lawyers