Baker and Comcare (Compensation)

Baker and Comcare (Compensation) [2017] AATA 1050 (4 July 2017)
Division:GENERAL DIVISION
File Number: 2014/6385
Re:Kerry Baker
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:4 July 2017
Place:Melbourne

The Tribunal affirms the decision under review.
..................................[sgd]......................................
Regina Perton, Member
COMPENSATION – employment by Australian Competition & Consumer Commission – major depressive disorder – refusal of application for studies assistance - whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether applicant entitled to compensation for incapacity – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A(1), 5A(2), 5B(1), 5B(2), 5B(3), 14(1)
Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No 2) (2013) FCR 272
Comcare v Mooi (1996) 69 FCR 439
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 145 FCR 29
Lim v Comcare [2017] FCAFC 64
REASONS FOR DECISION
Regina Perton, Member
4 July 2017

Ms Kerry Baker joined the Australian Competition & Consumer Commission (ACCC) in 2010. She currently works for the ACCC in Melbourne as the Assistant Director, Project Management Office (PMO) at the classification of Executive Level 1 (EL 1). She lodged a claim for compensation on 19 June 2014 for a psychological condition which she described as depression and stress that she stated occurred on or about 11 May 2014 as a result of a refusal of study support under the ACCC’s Studies Assistance Scheme (SAS) in relation to her enrolment in a Master of Laws (Juris Doctor) degree (the law course) at Monash University in 2014.
On 12 August 2014 Ms Baker’s claim was refused by the Comcare, which found that her condition of major depressive disorder, single episode was significantly contributed to by her employment but had arisen from reasonable administrative action taken in a reasonable manner by the ACCC in the process of refusing the application for studies assistance. On 18 November 2014 Comcare affirmed the decision. On 11 December 2014 Ms Baker sought review of the decision by the Tribunal.
LEGISLATIVE BACKGROUND
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
Compensation for injuries
(1)Subject to this Part, Comcare 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
...
Section 5A of the SRC Act states:
Definition of injury
(1)In this Act:
injury means:
(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 paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the SRC Act states:
Definition of disease
(1)In this Act:
disease means:
(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
Ailment is defined in s 4 of the Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES
Comcare concedes, and the Tribunal accepts, that Ms Baker suffers from a psychological condition which, on the basis of the medical evidence, may be characterised as major depressive disorder, single episode (the condition). Both parties accept that this condition is outside the boundaries of normal mental behaviour and functioning (Comcare v Mooi (1996) 69 FCR 439), and was contributed to, to a significant degree, by Ms Baker’s employment with the ACCC. The condition constitutes a disease for the purposes of s 5A and s 5B of the SRC Act.
The questions before the Tribunal are:
·When did Ms Baker suffer the disease?
·Did Ms Baker suffer an injury? This requires consideration of whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.
When did Ms Baker suffer the disease?
In her application for compensation, Ms Baker stated that on or about 11 May 2014, she suffered the condition at work; and that on 14 May 2014, she first attended her general practitioner in connection with the condition.
Ms Baker told the Tribunal that she was born in Perth, Western Australia. She joined the then Department of Social Security and after five years, she moved to the then Australian Customs Service for 14 years. This was followed by a short period with the Child Support Agency, after which she spent 10 years with the Australian Taxation Office. She joined the ACCC in 2010. She has a Master’s degree in Education, Leadership & Management; a Master’s degree in Knowledge Management; a Graduate Diploma in Industrial Relations; and a Graduate Diploma in Occupational Health and Safety Practice. She said that her symptoms of sleeplessness, stress, anxiety and depression resulted from a series of events in the workplace that commenced in 2011 and have continued to the present time. Ms Baker said that the cumulative effect of these events resulted in her general practitioner referring her to a clinical psychologist in May 2014 and advising her to take time off work.
The first event described by Ms Baker occurred in June 2011 when she was working in a case management role within the Human Resources (HR) section of the ACCC in Melbourne (the HR event). She said that she attended a meeting with her manager who shouted at her and bullied her in front of the HR General Manager. The Manager then had her removed from her HR role, and improperly sought access to her voluntary redundancy and superannuation details. She said that this caused her distress and anxiety, and raised the possibility that she would become unemployed because her position was to be relocated to Canberra. Eventually, she was moved to a position as Assistant Director in the PMO in Melbourne. She said that in 2011 she did not take any time off work or attend her general practitioner for treatment of distress and anxiety arising from this event.
The second event occurred in April 2012, when Ms Baker said she was identified as a person who may be likely to accept a voluntary redundancy, and was asked if she was interested (the voluntary redundancy event). Ms Baker said that she felt as if she was being targeted and was offended at what she believed was a negative perception about her value to the ACCC. She said that in 2012 she did not take any time off work or attend her general practitioner for treatment of anxiety or stress arising from this event.
The third event occurred at the end of 2013. Ms Baker had been offered a place in a law course in November 2013 to commence in January 2014. On 20 November 2013 she lodged an application for studies assistance (the first studies assistance event). She stated that her supervisor, Mr Peter Conlon, told her that he did not support any form of assistance under the SAS because of staffing and financial constraints in the Information Management and Technology Services Branch (IMTS), in which her position was located. On 16 December 2013 Mr Adrian Walkden, General Manager, IMTS, refused the application in respect of study leave and financial assistance. Ms Baker requested reconsideration, and the original decision was affirmed by Mr Walkden on 7 January 2014. Ms Baker sought a review of the decision, which was conducted by Mr Ian Avis, Director Recruitment and Workforce Management. On 26 February 2014 Ms Baker was informed that the review had confirmed the original decision because of staffing and financial constraints, although she had maintained that any budget cuts did not impact on her workload or duties.
Ms Baker stated that in May 2014, the ACCC had embarked on further voluntary redundancies due to the budgetary constraints. She said that she became anxious that her position would be made redundant, and she had difficulty sleeping and concentrating. On 11 May 2014 she had what she believed to be an anxiety attack. She attended her general practitioner and was given two weeks off work and commenced counselling with a psychologist, Dr Laura Capitanio.
The fourth event occurred in the period commencing on 27 May 2014 when Ms Baker lodged a second studies assistance application (the second studies assistance event). She was confident it would be supported because she was only seeking two hours’ study leave each week and the ACCC’s budgetary situation had improved. However, Mr Conlon informed her on 30 May 2014 that the outcome would probably be the same as her first application because of work requirements. She said that she fell into a deep depression and took some time off work. She deferred her studies and withdrew her second studies assistance application. She continued seeing the psychologist. She was also told that her position might be relocated to Canberra. Ms Baker emphasised that these matters arising from her treatment at work caused her depression and stress.
Dr Lester Walton
Dr Lester Walton, consultant psychiatrist, in a report dated 17 June 2015, stated that Ms Baker suffers from an adjustment disorder with mixed anxiety and depressed mood. He said that she reported feeling stressed virtually from the outset of taking up her position with the ACCC in 2010, as well as from her perception of the culture of the Melbourne office, together with conflict she was experiencing with her manager, who was based in Canberra. However, it was what she perceived to be a confrontational meeting in 2011 that she believed led to her removal from her role with HR. According to Dr Walton, this seems to have triggered actual psychiatric symptoms, and was nominated by him as the date of onset of impairment. In a supplementary report dated 1 July 2015, Dr Walton confirmed his opinion that Ms Baker has suffered from the adjustment disorder continuously since 2011.
In his oral evidence to the Tribunal, Dr Walton stated that a person can sustain an impairment but continue to work and put on a brave face if the impairment is of a relatively minor nature. He said that there can be a situation of cumulative stress, where a number of events finally get to a tipping point, where a person finally might decide to seek medical assistance or treatment.
Dr Laura Capitanio
In a report dated 17 July 2014, Dr Laura Capitanio, psychologist, stated that she had seen Ms Baker on six occasions between 15 May 2014 and 17 July 2014. She said that Ms Baker reported emotional distress suffered in 2011 with respect to the HR event, and felt she was a target with respect to the Voluntary Redundancy event. Ms Baker gave a history of emotional distress arising from the first and second studies assistance event. She told Dr Capitanio that she had no psychological difficulties or treatment prior to the initial incident in 2011. In a report to Ms Baker’s general practitioner dated 22 July 2014, Dr Capitanio stated that Ms Baker reported symptoms of depression, anxiety, and worry, consistent with a diagnosis of major depressive disorder; but she gave no dates for these symptoms.
Mr Tim Holland
Mr Tim Holland, a former officer of the ACCC and its predecessor, the Trade Practices Commission (TPC) between 1985 and 2012, made a written statement dated 29 November 2015. In that statement he said that he was Ms Baker’s work colleague in the HR Branch of the ACCC. He described a toxic work environment in the Corporate Division headed by Ms Josephine Schumann (SES Band 2) in 2010/2011. He said that the behaviour by Ms Schumann and another HR manager was deceiptful, unmannerly and inappropriate, and was in keeping with the way the senior management group at the ACCC dealt with senior staff of a certain age, regardless of their competence. He suggested that Ms Schumann favoured young, bright energetic EL2s over other staff who did not fit into this category. In his oral evidence, Mr Holland said that approval of studies assistance applications was a discretionary matter. Under cross-examination, Mr Holland agreed that Performance Development Plans (PDPs) were discussed with staff, and a person’s desires and career aspirations were part of the process, but the discussion never counted as approval of an application for studies assistance.
Ms Helen Lu
Ms Helen Lu, formerly Branch Head (SES Band 1) of the ACCC in Melbourne from 1994 to 2013, made an undated written statement. She said that she did not witness the treatment of Ms Baker, but referred to a culture of bullying in the Corporate Division of the ACCC and a pattern of behaviour aimed at removing experienced and skilled older employees (including herself) from their positions for no reason relating to their performance. She said that this occurred from the time that Ms Schumann arrived in March 2010. Ms Lu was aged 57 or 58 when the alleged bullying occurred in 2010 and 2011, and senior management did nothing about her complaints concerning Ms Schumann’s negative attitude towards other staff, including an HR manager who was 58 years old at the time. She suggested that Ms Schumann’s behaviour was adopted by other senior managers, and she concluded that …Comcare may have a basis to consider it more probable than not that the treatment of Ms Baker was not reasonable.
Under cross-examination, Ms Lu agreed that when she was the delegate for studies assistance applications, relevant factors included personal needs, business needs and the organisation’s needs, in the context of budgetary considerations at the time.
Ms Gail Neumann
Ms Gail Neumann, former Director, Human Resources Branch of the ACCC, made a written statement dated 30 September 2015. In it she said that Ms Baker was told on 6 June 2011 that her position was to be relocated to Canberra and that if she did not move, she would become an excess officer. Ms Neumann said that she had no reason to doubt that Ms Baker suffered distress and injury from the meeting of 6 June 2011 and the subsequent handling of her placement at the ACCC. She added that in June 2011 she was told by Ms Schumann and another senior officer that she (Ms Neumann) was too long in the tooth to be considered for succession planning within the HR area of the ACCC. In oral evidence Ms Neumann stated that she joined the TPC in 1990 and retired from the ACCC in 2012. She stated that she was the delegate for approving studies assistance for a number of years. She said that discussions would be held between a staff member and the person’s manager about possible applications for studies assistance through personal development planning before an application for studies assistance could be made.
Consideration
An examination of Ms Baker’s leave records and the clinical notes of her general practitioner, together with her evidence at the hearing, indicate that Ms Baker did not require medical treatment for any clinically significant mental health or psychological condition associated with her employment and was not incapacitated for work prior to May 2014. She first attended her general practitioner for stress and depressive symptoms on 14 May 2014 in connection with the studies assistance event, and was referred to a psychologist. In all the circumstances, the Tribunal finds that the date of the disease suffered by Ms Baker is 14 May 2014.
DID MS BAKER SUFFER AN INJURY?
Evidence
Ms Baker
Ms Baker stated that the first studies assistance event was conducted in an unreasonable manner. She told the Tribunal that the internal processes involving the initial decision, reconsideration and review were carried out in a way that excluded her. She said that the decision was based on age discrimination and not on operational need, which she said was consistent with the treatment she had experienced in 2011.
Ms Baker explained that when she received an offer from Monash University of a place in its law course in November 2013, she informed Mr Conlon that she had satisfied one of the items in her Individual Action Plan (IAP), which replaced the former Personal Development Plan (PDP) that had been discussed and agreed to between them. She said that in December 2013, after lodging her application for studies assistance, Mr Conlon told her he had recommended against approval of the application because of budgetary constraints within the ACCC.
On 23 December 2013 Ms Baker sought reconsideration by Mr Walkden of the initial decision to refuse her first application for studies assistance. She submitted to Mr Walkden that she had not previously been granted study support; a law degree was directly relevant to the ACCC; her enrolment would support diversity within the ACCC; studying law would broaden her opportunities within the ACCC and the broader Australia Public Service; and enrolment in a university course was specified in her approved IAP. On receipt of the request for reconsideration, Mr Walkden invited Ms Baker to clarify some of the points she had made, and she responded on the same day. She submitted to Mr Walkden that the course would assist her career development because her current role in the PMO was not permanent and she had no career path in her role in Melbourne; the maximum five hours’ study could be accommodated within her existing workload; the workload of the IMTS had declined, despite staff losses; study support was a long-term strategic investment in staff; and the ACCC had invested significant amounts of money in the promotion of improvement in wellbeing and quality of life of its staff. Ms Baker said that on 7 January 2014 Mr Walkden informed her that he taken her submissions into account but had decided to affirm his decision to refuse her application.

On 8 January 2014 Ms Baker wrote to Ms Schumann requesting a Review of Action (the review) as provided for in [334] to [343] of the relevant Enterprise Agreement. She said that she provided detailed reasons for requesting the review. She said that she was advised of the outcome of the review on 26 February 2014.
In respect of the review process, Ms Baker said that it was not impartial, and Mr Conlon had made comments that she interpreted as judgmental and were based on her age and not her ability or legitimate claims to studies assistance. She said that she was particularly upset because during discussions in connection with the 2012-13 PDP, she and Mr Conlon had agreed that her individual and learning goals would include seeking admission to a university to study law as a means of devising a strategy to assist her to find another position, as her position might be relocated to Canberra. She stated that she commenced the course but found the study commitments and full-time work to be exhausting.
Ms Baker said that when she requested a review of the decision to refuse her application for studies assistance, she was not told the name of the person who had been appointed to carry out the review, and was not given an opportunity to participate in the review process by having a discussion with the reviewer. She was only provided with an outcome at the conclusion of the review process. She said that the review by Mr Avis was not comprehensive and he had not read the Agency Agreement section concerning the PDP, which in her case included a desire to study law, which was always her aspiration and could be taken to be part of her PDP. Ms Baker said that, although the law course was not included in her most recent PDP, Mr Avis was incorrect to conclude that it was not part of her career development plan, and certainly not a reason for upholding the refusal of her application.
Ms Baker said that the reason given for the refusal of both financial assistance and study leave was the workload in her area due to budget cuts. She disputed this as a reasonable explanation because she said that her workload was in fact reduced because the majority of projects for which she provided support had been suspended, with only two major critical projects ongoing and their personnel retained. Thus she maintained that the budget cuts did not impact on her workload or duties, particularly as IT issues were beyond her level of expertise. With regard to financial support, Ms Baker stated that support for other ACCC staff continued during the relevant period. She said that the correct process was that the staff member’s manager would recommend studies assistance and a delegate in the corporate area would determine the outcome, subject to the availability of funds.
Under cross-examination Ms Baker agreed that the reasons given for refusal of her studies assistance application were budgetary constraints and relevance of study, and at no stage did Mr Conlon commit to supporting any application she made, although she said that she was shocked when he told her that he had not supported her application, because he had not hinted at any time that her wish to study law was inappropriate or would not be supported. She also agreed that a law degree was not necessary for her to perform her duties in her current role, and was of no direct relevance to the duties of her position. She told the Tribunal she was disappointed with Mr Walkden’s decision to confirm the original refusal of her application, although she knew that the Review of Action avenue was open to her. With respect to the review, Ms Baker agreed that there was nothing in the Enterprise Agreement that required input from the person seeking review during the process, although she expressed the opinion that there were strong reasons to make the process as collaborative as possible.
Ms Baker agreed further that Mr Avis was not involved in the original decision to refuse her application for studies assistance, but she claimed that he was not independent because he was in the Corporate area headed by Ms Schumann, so the perception of fairness would have been much stronger if Ms Schumann had appointed a person from outside the corporate area who was not answerable to her. Further, she said that although Mr Avis had everything before him that was available to Mr Walkden, there was a need to take the overall work environment into account, including conversations she had with Mr Conlon and Mr Walkden about finding another role for her within the ACCC, so she did not feel that the process was as holistic as it should have been, which goes to the fairness of the review decision. She stated that being refused studies assistance was not the problem, but the issue was being discriminated against on the basis of age in making the decision, resulting in the administrative action being taken in an unreasonable manner.
Mr Peter Conlon
Mr Conlon made a written statement dated 2 July 2015 in which he said that he was the Director of the PMO and had been the applicant’s supervisor since commencing with the ACCC in July 2011. He said that in July 2012 and July 2013 Ms Baker had raised the possibility of undertaking legal studies in the context of her IAP and he had agreed that having an understanding of legal concepts was useful, although he said that he told her that the ACCC was conducting a one-day Law for non-lawyers course to meet that need. He told the Tribunal that between July 2012 and November 2013 the ACCC and IMTS underwent significant change, with the PMO and the Governance team combining, resulting in an increased workload with fewer staff, and the organisation was also experiencing significant financial constraints. Mr Conlon noted that although he did not support the first application for studies assistance, he did not have the delegation to approve such applications, and he discussed the matter with his supervisor Mr Walkden, who advised Ms Baker on 16 December 2013 that she had been unsuccessful.
Mr Conlon stated that in January 2014 he was advised that Mr Avis was undertaking a review of Mr Walkden’s decision. On 27 February 2014 Ms Schumann advised him that Mr Walkden’s decision was reasonable and would be upheld. He said that he discussed the outcome with Ms Baker, who indicated that she intended to escalate the matter to Fair Work Australia, and he asked her to reflect on whether such a course of action could lead to a perception that she might be seen as an agitator, but he had no intention of deterring any action that she might take.
In a further written statement dated 18 September 2014 Mr Conlon said that the merging of the PMO with the Governance team resulted from staff departures, and the work of the team expanded to include responsibility for IT policy and governance, information management, IT security, and business management. He acknowledged that there was a reduction in the work of the PMO as it once was, but there was an overall increase in the workload of the team.
Under cross-examination Mr Conlon said that Ms Baker did not require IT skills to perform her role within IMTS. He explained that inclusion of legal studies in Ms Baker’s IAP did not represent a commitment by the ACCC to approve any subsequent application for studies assistance in that field. He reiterated that the factors given to him for the refusal of the first studies assistance application were the relevance of the course; Ms Baker’s workload; and the financial implications for the ACCC.
Mr Adrian Walkden
Mr Walkden made a written statement dated 23 June 2014 in which he said that he is the Chief Information Officer for the ACCC, classified as General Manager, IMTS. He explained that on 1 July 2013, IMTS had an establishment of 26 staff but over the next six months seven staff left and could not be replaced due to financial constraints. He noted that on 7 November 2013 he received from Mr Conlon, Ms Bakers’ notice of intention to apply for studies assistance. He said that when the application was received he sought clarification of the criteria for SAS, the funding mechanism and other aspects of the proposed studies. He said that during December 2013, following a financial review, IMTS had to cease certain projects or return funds representing 10 per cent of the annual branch budget. Mr Walkden stated that on 16 December 2013 he made his decision not to approve the first application for studies assistance because of the impact of lost productivity due to staff departures and the cost to the ACCC, and he informed Ms Baker and provided information on the review process.
Mr Walkden said that Ms Baker wrote to him on 23 December 2013 seeking reconsideration of his decision and he responded on the same day to each point that she had addressed to him, and indicated to her, his aim of completing his reconsideration quickly. He emphasised that he discussed the matter further with HR representatives on interpretation of the SAS policy, and informed Ms Baker on 7 January 2014 of his decision to confirm the refusal of the application. He said that in late February 2014 she was informed by Ms Schumann that, after consideration of Mr Avis’ report, the original decision had been upheld.
Under cross-examination Mr Walkden agreed that, in relation to some of the subjects in Baker’s proposed law studies, a greater awareness of legal matters and principles would help in an IT role and perhaps other roles, but he only considered the studies assistance application in its entirety. He stated that Ms Baker’s age was not a factor in any decision relating to her application for studies assistance.
The Studies Assistance (SAS) Policy & Procedure dated September 2013 states as its purpose:
This policy supports the Australian Competition and Consumer Commission Enterprise Agreement 2011-2014 (the Enterprise Agreement) and relates to the provision of studies assistance. The ACCC’s Studies Assistance Scheme (SAS) provides opportunities for employees to develop their knowledge and skills and to achieve their full potential. It does this by supporting tertiary study that leads to a recognised qualification and furthers the objectives of the ACCC and the Australian Public service (APS).
The Authority contained in the SAS states:
The Enterprise Agreement (paragraph 77) provides that where a manager and an employee agree that formal study through an accredited institution is appropriate, an eligible employee may apply for assistance under the ACCC’s SAS.
The Policy Overview contained in the SAS states:
Study assistance is not an automatic entitlement. Approval is at the discretion of the manager and delegate and subject to assessment against the approval criteria outlined in this policy.
The Approval criteria contained in the SAS states:
…
In assessing an application for approval, the delegate will consider the following factors:
Organisational factors
othe relevance of the proposed course of study to employment in the ACCC
othe relevance of the proposed course of study to the strategic and operational needs and priorities of the ACCC – for example, any workforce planning objectives or diversity requirements
othe capabilities and skills required for current and future jobs in the ACCC
oin relation to distance education, whether there is a satisfactory local alternative option which would be more cost or time effective
othe funding available for studies for the budgetary year
oany other factor considered relevant.
Employee factors
othe career and personal development needs of Ms Baker as reflected in their IAP
othe employee’s performance and contribution in the workplace
othe likelihood of the employee successfully completing and making productive use of the acquired learning in the ACCC or APS
othe individual’s study history and what assistance has been provided to them in the past (if any) and
oany other factor considered relevant.
The document Some things you should know when making employment decisions: Good management practice, delegations, principles of natural justice, reviews of actions and a protocol for addressing employee issues which is part of the ACCC Managers’ Toolbox Guidance Series (the Toolbox Guide) states at page 4:
…A good manager will make the tough decisions when necessary. But they will also be prepared to: listen carefully and consider the issue first, take relevant factors into account in making the decision, consult others when necessary and explain the reasons for the decision clearly so that staff understand why the decision needed to be made…
The Enterprise Agreement sets out at [334] to [343] the process for Review of actions.
…
[339] In those exceptional circumstances where the matter remains unresolved after discussions with the appropriate level of management, an employee may refer the matter to the Delegate who may, where they consider it necessary or appropriate, appoint an independent person from within or outside the ACCC to assist in resolving the matter and/or to investigate the matter and make recommendations to the Delegate.
[340] The final internal adjudicator will be the delegate, who will advise the employee and the manager in writing of their decision in respect of the matter and the reasons for the decision, including (but subject to appropriate privacy safeguards) the outcome of any investigation of the matter.
…
Ms Baker and Comcare provided further written submissions after the hearing which have been taken into account in these Reasons for Decision.
TRIBUNAL’S CONSIDERATIONS
Was the condition suffered as a result of the administrative action?
In Comcare v Martin (2016) 153 ALD 167 the High Court of Australia stated at [47]:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.
In Lim v Comcare [2017] FCAFC 64 the Full Federal Court referred to Comcare v Martin and identified a deficiency in the Tribunal’s decision-making process. The Court stated:
[40] When regard is had to Comcare v Martin, a deficiency in the Tribunal’s decision-making in Dr Lim’s case becomes apparent. What the Tribunal failed to do was address the entirety of the question to which the application of the exclusion in s 5A(1), when read with s 5B, gave rise.
[41] As noted earlier, in Dr Lim’s case, there was no dispute that the relevant adjustment disorder (being an ailment as defined in s 5B(1)(a)) was contributed to, to a significant degree, by Dr Lim’s employment by ACMA. Put another way, as in Ms Martin’s case, only employment-related factors were identified as contributing to Dr Lim’s ailment. In this circumstance, applying Comcare v Martin, to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken.
Applying Martin and Lim the Tribunal takes into account Ms Baker’s evidence that she consulted her general practitioner on 14 May 2014 after suffering what she believed to be an anxiety attack, and was given two weeks off work and commenced counselling with a psychologist. This is supported by the medical evidence, including a history given to Dr Walton and Dr Capitanio that the studies assistance event contributed to the condition. The Tribunal finds that Ms Baker would not have suffered the major depressive disorder, single episode if the studies assistance event had not taken place.
Did the studies assistance event constitute reasonable administrative action?
In Drenth v Comcare [2012] FCAFC 86 the Full Federal Court stated at [26]:
Whether something is reasonable or not is ordinarily a question of fact. A decision-maker does not make an error of law simply in making a wrong finding of fact…
Ms Baker lodged an application for studies assistance on 20 November 2013 and the process for considering the application commenced on that date. The process consisted of a recommendation by Mr Conlon to Mr Walkden, who was the delegate for decision-making in respect of applications for studies assistance; a decision by Mr Walkden refusing the application; a request by Ms Baker for reconsideration; the submission of further material by Ms Baker to Mr Walkden; the decision by Mr Walkden to affirm his original decision; a request by Ms Baker for review of the decision; a review carried out by Mr Avis; the recommendation by Mr Avis to affirm the decision, and the decision by Ms Schumann to affirm the original decision. The effect of the decision was that Ms Baker did not receive any studies assistance under the SAS for the law course. In the circumstances the Tribunal finds that the carrying out of the process in respect of the studies assistance event constitutes anything reasonably done in connection with Ms Baker’s …failure to obtain a…benefit…in connection with…her employment, so the studies assistance event constitutes reasonable administrative action as defined in s 5A(2)(f) of the SRC Act.
Was the reasonable administrative action taken in a reasonable manner?
In Comcare v Martinez (No 2) (2013) FCR 272 the Federal Court considered the circumstances in which an administrative action is taken in a reasonable manner for the purposes of s 5A of the SRC Act. Robertson J said:
[82]…I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.
[83] I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42; at 47-48 where his Honour said, in a context much closer to the present legislation:
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 Tribunal takes into account the SAS Policy and Procedure, including the purpose of studies assistance within the ACCC, the Authority, the Policy Overview, the Approval criteria contained in the document, together with the Toolbox Guide and the relevant sections of the Enterprise Agreement. These documents confirm that studies assistance is not available to employees of the ACCC as of right. It is a benefit for which employees may apply, and decisions are then made according to the relevant policies and the circumstances of each application as they apply to the criteria for studies assistance at the time of the application, according to the process that is specified in the documents.
The Tribunal accepts that Ms Baker and Mr Conlon discussed Ms Baker’s career goals, including her interest in studying law, and that her desire to undertake a law degree was included in her PDP or IAP. However, although every employee is entitled to express a personal career aspiration, there is no provision in any ACCC document that the employer is bound to grant an application for studies assistance merely because there is an aspirational goal in a PDP or IAP that refers to a particular course of study. The Tribunal does not accept the contention by Ms Baker that the inclusion of her interest in a law course committed the ACCC to approve her application.

Ms Baker claimed in her evidence that one reason for the refusal of her studies assistance application was age discrimination, which (among other matters) she attributed to alleged actions by Mr Conlon in not denying such claims by her when he told her he was not supporting her application. The Tribunal can find no basis for this claim and accepts the evidence from Mr Conlon and Mr Walkden that the only matters that were taken into account were those that were prescribed in relevant policy documents. The Tribunal finds that Ms Baker’s age had no relevance to the decision.
With respect to the process, the Tribunal has considered the documentary evidence and the oral evidence from Ms Baker, Mr Conlon and Mr Walkden. Following Mr Walkden’s original decision to refuse the application Ms Baker requested a reconsideration and provided Mr Walkden with a comprehensive written submission in support of her application, which he took into account when he reconsidered his decision. The Tribunal takes into account that under the procedure for conducting a Review of Action there is no requirement for the person conducting the review to consult the person seeking the review or for the name of the reviewer to be communicated to the applicant before the review is completed.
When Mr Avis carried out his review he considered all relevant matters including the additional material that Ms Baker provided to Mr Walkden, and made a recommendation that was accepted by the delegate. In these circumstances the Tribunal considers that Ms Baker had been given all reasonable opportunity to place relevant material before the reviewer, who assessed the material and made a recommendation to Ms Schumann, so there was no necessity for Mr Avis to consult Ms Baker during the review process. Mr Avis, as Director, Recruitment and Payroll Management, is an officer experienced in HR matters. Although his position reported to Ms Schumann, he had no supervisory or other direct connection with Ms Baker, and the Tribunal is satisfied that Mr Avis was an independent person from within or outside the ACCC ([339] of the Enterprise Agreement) and was an appropriate person to conduct the review. Based on the available evidence, the Tribunal is satisfied that Mr Avis was impartial.
The Tribunal is satisfied that at every step of the process connected with the studies assistance event, ACCC officers acted appropriately according to established procedures and in fairness to Ms Baker, and that the outcome was determined on the basis of the criteria set out in the SAS. In all the circumstances the Tribunal does not accept Ms Baker’s contention that the process of review was flawed, unfair, unreasonable or breached the principles of natural justice.
For these reasons the Tribunal finds, in relation to the studies assistance event, the reasonable administrative action was taken in a reasonable manner in respect of Ms Baker’s employment under s 5A of the SRC Act.
CONCLUSION
In view of its findings the Tribunal is satisfied that, in respect of the studies assistance event, the condition suffered by Ms Baker resulted from reasonable administrative action taken in a reasonable manner in respect of her employment, so it does not come within the definition of injury in the SRC Act.
In Hart v Comcare (2005) 145 FCR 29 the Federal Court of Australia held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in s 4(1) of the SRC Act, that disease is not an injury (as defined in s 4(1) and later applied to s 5A of the SRC Act), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. In other words, in order for the proviso to apply, it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances. In view of the Tribunal’s findings regarding reasonable administrative action in respect of the studies assistance event, Ms Baker is not entitled to compensation under the SRC Act, and there is no need to consider whether the administrative action in respect of the HR event, the Voluntary Redundancy event or the second studies assistance event satisfy the criteria for excluding the condition from the definition of injury.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member
..................................[sgd]....................................
Associate
Dated: 4 July 2017

Dates of hearing:
6 and 7 June 2016

Date of final submission
Applicant:

9 June 2017

In person

Counsel for the Respondent:

Ms C Dowsett

Solicitors for the Respondent: Australian Government Solicitor

[2017] AATA 1050

4 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Remedies

Dates of hearing:	6 and 7 June 2016
Date of final submission Applicant:	9 June 2017 In person
Counsel for the Respondent:	Ms C Dowsett
Solicitors for the Respondent:	Australian Government Solicitor