BRADLEY BEASLEY and COMCARE - [2012] AATA 411

[2012] AATA 411

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/4815

Re

BRADLEY BEASLEY

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal
Senior Member J L Redfern
Air Vice-Marshal (Dr) T K Austin AM, Member

Date 3 July 2012

Place Sydney
The decision under review is set aside and substituted with the decision that Comcare is liable to pay compensation to the Applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
..............[sgd]..........................................................
Ms J L Redfern, Senior Member
CATCHWORDS
COMPENSATION – liability for psychological injury – cause of injury - reasonable administrative action – undertaken in a reasonable manner – appraisal of performance - decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 7, 14
CASES
Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289

Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; [2012] FCAFC 21
Hart v Comcare (2005) 145 FCR 29
Re Carpenter and Comcare (2010) 116 ALD 190; [2010] AATA 62
Re Georges and Telstra Corporation Limited [2009] AATA 731
Re KRDV and National Australia Bank Ltd (2011) 125 ALD 311; [2011] AATA 210
Re Lynch and Comcare (2010) 114 ALD 394; [2010] AATA 38
Re Shardlow and Comcare [2012] AATA 10
Re Wilson and Comcare [2010] AATA 396

REASONS FOR DECISION
Senior Member J L Redfern
Air Vice-Marshal (Dr) T K Austin AM, Member
3 July 2012

Mr Bradley Beasley is a lawyer, who was employed by the Australian National University (ANU) from May 2004 in the Employment Strategies Branch of the Human Resources Division. He went off work on 31 August 2009 and did not return following a number of meetings with his supervisors in late August 2009. On 29 September 2009, Mr Beasley made a claim for compensation for anxiety and depression which was said to date back to 17 February 2006. Mr Beasley alleged that bullying and harassment by his supervisors caused his condition. He was admitted to Concord Hospital Mental Health Unit in November 2009 for a week. Mr Beasley was under the treatment of a psychiatrist from 28 or 29 September 2009 but refused to attend medical appointments arranged for him by the ANU on 31 March and 12 May 2010. He was given six months notice of termination of his employment on 1 June 2010 and on 30 November 2010, his employment ceased.
Comcare denied the claim on 29 January 2010 and on 9 September 2010, following a request for reconsideration, Comcare affirmed this decision. It was accepted that Mr Beasley suffered a psychological injury related to his employment but his injury was determined to be from 25 September 2009, being the date of a medical certificate provided by Mr Beasley’s treating doctor, and not February 2006 as claimed by Mr Beasley. Liability was declined on the basis that Mr Beasley’s injury was sustained as a result of “reasonable administrative action taken in a reasonable manner” in respect of his employment and was therefore not compensable. Mr Beasley refuted this claim and sought a review of the decision.
LEGISLATIVE FRAMEWORK
The relevant legislation that governs this review is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

4. Section 14 provides that compensation is payable “in respect of an injury suffered by an employee if the injury results in ... incapacity for work”. There were significant amendments to the Act effective from 13 April 2007 in which the definition of “injury” was moved into a new s 5A and the exclusions for compensable injury were clarified. There was also a change in the extent to which a person’s employment was required to have contributed to their injury in respect of a disease.

Mr Beasley alleges his injury was sustained before 13 April 2007. There is dispute about this but there is common ground that the provisions of the Act, as they were both before and after these amendments, are relevant.
Prior to 13 April 2007, “injury” was defined to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Under the pre-13 April 2007 injury provisions, “disease” was defined in s 4(1) to mean:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment...[emphasis added]
After the amendments to the Act, the definition of “injury” is now set out in s 5A(1) and 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”.
The definition of “disease” was moved to a new s 5B and is defined to mean:
(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 ... [emphasis added]
Relevantly s 5B(3) provides that “significant degree means a degree that is substantially more than material”.
Under s 4(1) an “ailment” means “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.This definition was unaffected by the amendments.
Section 5A(2) states that “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.
In summary, the threshold for when an injury (if it is a disease) will be compensable is lower under the pre-13 April 2007 injury legislation and the new definition of “injury” clarifies and arguably expands the exclusions.
CONTENTIONS OF THE PARTIES AND ISSUES FOR DETERMINATION
Mr Beasley contended that he was subjected to behaviour by his supervisors from the beginning of 2006 which caused him to feel “bullied, harassed, unappreciated, and belittled”. He developed psychological symptoms “outside the range of normal human functioning” which he accepts were contributed to by relationship issues but alleges they were also contributed to, in a material degree, by his employment. He continued to suffer from psychological symptoms over the following three years, exacerbated by the conduct of his supervisors, and the injury he suffered before 13 April 2007 remained an operative cause of his incapacity or need for treatment on or after 31 August 2009.
Mr Beasley also contended that the conduct of his supervisors was not “reasonable disciplinary action” and his psychological injury was not as a result of his “failure to obtain a promotion, transfer or benefit in connection with his employment”. As such, his injury is compensable. To the extent that his injury is said to have arisen or been aggravated after 13 April 2007, the exclusionary provision does not apply. The events leading to meetings in August 2009 did not constitute “administrative action” as these meetings related to the results of a survey completed by “clients” of the Human Resources Division – this applied to all staff in the Division and was not particular to Mr Beasley. However, even if these events could be categorised as administrative action, they were not “reasonable” and were not taken in a “reasonable manner”. The decision of Comcare should be set aside and substituted with a decision that Comcare is liable to pay compensation to Mr Beasley under s 14 of the Act.
It is not disputed by Comcare that Mr Beasley suffered from a psychological condition that was contributed, to a significant degree, by Mr Beasley’s employment with the ANU. However, Comcare’s key contention is that there is no evidence Mr Beasley suffered from such a condition prior to 13 April 2007 and any injury, which is said to have arisen after 13 April 2007, was a result of “reasonable administrative action taken in a reasonable manner”. In particular, Comcare noted that Mr Beasley went off work on 31 August 2009, following meetings with supervisors from 20 August 2009. Comcare contended that these meetings were part of a performance appraisal process, which was clearly “administrative action” within the meaning of the Act. The meetings and process were “reasonable” and were taken in a “reasonable manner”. While there is evidence Mr Beasley sought treatment for depression in 2006, the treatment related to personal not work issues. Mr Beasley’s injury is therefore not compensable and the decision of Comcare should be affirmed.
Given the contentions of the parties, the issues for determination are as follows:
(a)Did Mr Beasley suffer a work related injury prior to 13 April 2007 and if so, did that injury remain an effective or operative cause of any incapacity or need for treatment on or after 31 August 2009, when Mr Beasley went off work?
(b)If the answer to (a) is yes, is liability to pay compensation affected by the exclusionary provisions in operation before 13 April 2007?
(c)If the answer to (a) is no, did Mr Beasley suffer a work related injury or any aggravation after 13 April 2007 and was it “as a result of reasonable administrative action taken in a reasonable manner in respect of [his] employment”?
BACKGROUND FACTS AND EVIDENCE
Mr Beasley commenced his working life as a painter and decorator and became a union official in 1988. He commenced work as a Senior Industrial Relations Officer at Sydney University in 1995 and in 2000 completed his Bachelor of Laws at the University of Technology, Sydney (UTS). He was admitted as a solicitor of the Supreme Court of New South Wales in June 2000 and worked as a solicitor from October 2000 until December 2001, when he commenced as a legal officer with the Association of Professional Engineers, Scientists and Managers Australia. Mr Beasley completed his Master of Laws in 2003. According to Mr Beasley, he gave advice on employment contracts and industrial disputes and appeared as an advocate on industrial relations matters.
In February 2004, Mr Beasley made an application to the ANU as a Senior Employment Strategies Advisor. He contacted Ms Andrea Hope, Deputy Director, Human Resources Division, and negotiated with her about benefits and the scope of the role. Mr Beasley gave evidence, which was not disputed, that it was important to him for the role to have a legal focus to further his career as a lawyer and obtain an unrestricted practising certificate. His long term goals were to finish his Doctorate of Juridical Science at UTS; practice as a principal of his own law firm then go to the Bar and possibly enter politics. It was also important for Mr Beasley that his role should have status as a legal role and that he be recognised as such within the ANU. This was reflected in the chain of email correspondence between him and Ms Hope from 18 to 24 March 2004.
In summary, Mr Beasley negotiated increased salary and financial entitlements, a change in his title to “Senior Employment Strategies Advisor – Legal”, an agreement that his classification would be reviewed within six months, two weeks’ additional paid leave to pursue legal employment, lecturing or studies, payment up to $2,000 for his legal registration and supervision by the University Counsel, Mr Ken Grime, on legal matters to assist him in obtaining an unrestricted practising certificate. Notwithstanding this, it is important to note that in the email correspondence Ms Hope stated “I don’t want to change the role description as the role is as described to you”.
Mr Beasley was offered the role of “Senior Employment Strategies Advisor – Legal” by letter dated 14 May 2004. The offer noted “The University understands that you wish to maintain your legal status and to assist you to do this it has been agreed that…”, thereafter there was a list of the additional matters negotiated by Mr Beasley for his legal practicing certificate and study.
Mr Beasley’s contract was in a generic form and incorporated the provisions of the Australian National University Enterprise Agreement 2003 - 2006. His role was stated to be as described in the “attached Role Statement”. There was no provision in the contract for the additional matters referred to above but it was accepted that these nonetheless formed part of Mr Beasley’s terms and conditions of employment. The contract also provided as follows:
... the University reserves the right to transfer the employee to suitable positions elsewhere during the term of this contract that are compatible with the skills and abilities of the employee.
The contract was signed by Ms Hope on 14 May 2004 and by Mr Beasley on 19 May 2004. At the time the contract was sent to Mr Beasley, it appears he was also sent an amended Role Statement which included the word ‘Legal’ in Mr Beasley’s title. Mr Beasley disputed receiving this document. This Role Statement noted that Mr Beasley was to “Provide strategic HR advice and support to the executive and senior managers across the University on a range of employment matters” but otherwise did not refer to legal advice.
Mr Beasley gave evidence that this Role Statement was incorrect and should have included the “provision of legal advice”. It was not disputed that Mr Beasley gave advice from time to time that could be described as ‘legal’ because of the nature of his role as a senior advisor in human resources and frequent advocate in industrial relations litigation. An issue in dispute, which was ongoing between Mr Beasley and his supervisors from about September 2006, was the extent to which this role was necessarily legal. It is common ground that there was a ‘Legal Office’ that conducted legal matters on behalf of the ANU. In fact it was accepted that Mr Beasley would undertake certain legal work under the supervision of Mr Grime. However, Mr Beasley’s supervisors maintained that the provision of legal services by Mr Beasley was largely limited to his role as an advocate and adviser in respect of employment matters and this role could be undertaken by a person without legal qualifications, although it was accepted such qualifications were useful.
Mr Beasley commenced employment with ANU on 24 May 2004 and was classified as an ANU officer Grade 8. On 15 June 2005, he was reclassified as an ANU officer Grade 9/10 effective from 31 May 2005, as a result of which his salary was increased and he became part of the “senior management team”. Mr Beasley said Ms Hope had originally sought to “reneg” on the reclassification, but when he pressed the issue and threatened legal action, she proceeded to recommend his reclassification.
From December 2005 until early 2006, Mr Beasley faced a series of personal tragedies. In December 2005, his grandson died five days after birth and in January 2006 his nephew died in a motorcycle accident in South Australia.
Ms Linda Cooke joined the Employment Strategies Branch in early 2006 and became Mr Beasley’s supervisor from February 2006. According to Mr Beasley, she was not supportive and when he applied for his leave to be reconciled to take into account personal leave arising from the recent family tragedies, there was a dispute about his entitlement. Mr Beasley stated that he “felt shock/horror, anger, anxiety, betrayed” and started having sleepless nights. This was said to have affected his ability to complete his doctorate. He consulted a psychologist, Mr David Jones, for counselling on 5 April 2006. On Mr Beasley’s account, there were about nine sessions with Mr Jones between April 2006 and February 2007 and these sessions were “work related”. There are no details about the first counselling session, other than an invoice for a session on 5 April 2006, but it appears that Mr Beasley did not consult Mr Jones again until September 2006. Mr Beasley said he enrolled in the ‘Thrive at Work’ program in August 2006 because he was experiencing symptoms of “anxiety and depression”.
According to Mr Beasley’s statement, he sought counselling in 2006 concerning issues that were “work related” but when he gave evidence, Mr Beasley attributed these concerns to a combination of work and personal issues. Under cross-examination, Mr Beasley agreed he originally consulted with Mr Jones about his “relationship issues” and the notes produced by Mr Jones from September 2006 to February 2007 confirm this.
In mid 2006, Mr Ron Watts commenced as the Director of the Human Resources Division. Mr Beasley stated that when he first met Mr Watts, Mr Watts refused to shake his hand and said “I don’t need someone like you in my team”. Mr Watts denies this. Mr Watts said he wanted the Human Resources Division to focus on the resolution of disputes rather than legal issues and an adversarial process. He did not believe it was necessary to have a Human Resources Consultant with specialist legal knowledge as it was common for industrial relations litigation to be run by Human Resources specialists that were not lawyers. If specialist legal advice was required it would be sought from the Legal Office, headed by Mr Grime. This was Mr Watts’s view at the time but he cannot recall if he discussed this with Mr Beasley when he first met him. He agreed this was discussed with Mr Beasley by at least 2008 or 2009 when the operation of Human Resources Division was being reviewed.
Mr Beasley said he did not agree with this view. According to Mr Beasley, Mr Watts sent an email to him on or about 7 September 2006 to the effect that he was not employed as a legal practitioner but rather as an HR advisor with a legal background. This email was not produced but it is clear that this was discussed in September 2006 as Mr Beasley sent a memorandum to Mr Watts dated 5 September 2006 enclosing a revised Role Statement that was said to reflect “the duties I actually undertake including the manner of dealing with issues”. The Role Statement was more detailed than the previous Role Statement and included the following:
Provide high level strategic Human Resources and legal advice and support to the executive and senior managers across the Division and the University on a range of employment matters…
Mr Watts responded by memorandum dated 19 September 2006 to the following effect:
Thank you for your memo dated 5 September 2006 regarding your role statement.
It is my intention that as part of the implementation of the new Divisional structure that all role statements will be reviewed. As part of this review I propose to have fairly generic position descriptions where possible for all staff, especially senior staff.
I am not comfortable with the revised role statement that you have proposed. While I am [sic] accept that you undertake some limited legal work under supervision from the Legal Office, this is incidental to your main role as a senior employment adviser or an IR advisor in the old jargon.
Your new manager will need to reflect on the role required of your position in the context of the broader review of the Division. In light of this your “current” role statement will remain, noting of course your classification is now an ANU 9/10.
When I review all senior staff statements consideration will be given to your views on the degree to which your role statement might reasonably vary from the generic statement for other senior staff.

Mr Beasley said he complained about this to Mr Watts in October 2006. He also complained that Ms Linda Cooke and Ms Andrea Hope were harassing him. Mr Watts reportedly told him there would be a new Associate Director starting in the Human Resources Division shortly. It is unclear whether there was any further action in relation to this complaint but it is common ground that Mr Beasley did not raise a formal grievance against either Ms Cooke or Ms Hope.
Mr Beasley discontinued his doctorate in November 2006. He attributed this to the conduct and lack of support of Mr Watts, Ms Hope and Ms Cooke.
On 10 October 2006, Mr Paul Stewart commenced as the Associate Director of the Human Resources Division and Mr Beasley reported to him until the appointment of Dr Nadine White in August 2008 as Manager, HR Advisory and Change Services. Mr Beasley stated that Mr Stewart came into his office in around June 2008 and told him that a new advisory services branch had been established which would be headed by Dr White. He said that Mr Beasley would be reporting to her “and if you don’t accept this and you want to go through the formal change management process you may find you don’t have a job”. Mr Stewart agreed he would have told Mr Beasley about the new reporting arrangements but denied that he said words the effect that “you may find you don’t have a job”.
According to Mr Beasley, after the appointment of Dr White his duties became narrower. Employment litigation was being referred to the Legal Office and he was no longer given the opportunity to run seminars for senior managers on grievance management and the operation of employment legislation. Issues were raised about his attendance at external meetings on behalf of the ANU and he was told by Dr White that his role on the Industrial Relations Society and the Law Society of the ACT were not recognised for work purposes and should be attended in his own time. He believed Dr White was attempting to “suffocate” his profile. There were numerous emails between Dr White and Mr Beasley in December 2008 and January 2009 about reporting, leave and the need for Mr Beasley to advise Dr White when he was leaving the campus. The emails were formal, in some cases critical but not aggressive in tone.
Mr Beasley also raised concerns about difficulties in obtaining his unrestricted practising certificate in May 2007 and the failure of Mr Ken Grime to support his application.
Mr Grime gave evidence that he headed the Legal Office at ANU. As far as he was concerned, Mr Beasley had been employed as an industrial officer. He had a legal background but in his view was he was not acting as a lawyer within ANU except insofar as he was being supervised by Mr Grime. Mr Grime was not consulted about his employment but he was asked to provide supervision for a period of two years so Mr Beasley could be eligible to obtain his unrestricted practising certificate, to which he agreed. He allocated legal matters to Mr Beasley from time to time to fulfil this supervision. Mr Grime stated that he disagreed with Mr Beasley’s statement that he was “the go-to person within the University on any legal matters that arose within the context of employment and industrial relations”. According to Mr Grime this was an overstatement which may have reflected Mr Beasley lack of knowledge about the legal advice given by the Legal Office in these matters. He did not consider Mr Beasley needed to be a legal practitioner to operate within the Human Resources Division or to have a practising certificate. There was some disadvantage in being a legal practitioner in the industrial relations area as practising lawyers needed leave to appear in the industrial tribunals, although there was a benefit in having legal training because of the nature of industrial awards. Mr Grime assumed Mr Beasley wanted to carry on business as a principal and discussed this issue with him from time to time. If Mr Beasley had wanted to work as a lawyer at ANU, he would have had to apply to be transferred to the Legal Office. He did all that he was asked to supervise Mr Beasley but could not recall whether he had signed any certificates about supervision.
Mr Beasley complained about a memorandum received by him in or around July 2007 to the effect that his new title was ‘Senior Consultant – Policy and Workplace Development’. The memorandum was not produced but there is no dispute about its existence. The proposed change in title was subsequently confirmed in an email from Mr Stewart to him dated 2 July 2007. According to Mr Beasley this caused him anxiety as he believed the ANU was attempting to wrongfully vary his role and responsibilities. He refused to change his title and refused to follow Mr Stewart’s direction because he disputed the validity of the request. Mr Watts and Mr Stewart said that they decided not to argue the point with Mr Beasley at that stage and he was allowed to continue to use this title.
On 3 March 2009 Mr Stewart sent a “confidential” email to Dr White (copied in to Mr Watts) about Mr Beasley, which included the following:
I met with Bradley today and went through my own SOE with him so that he understood the cascading nature of expectations. I have expressly asked him to take the lead on some items - as you and I discussed - specifically the Fair Work Australia compliance and subsequent training issues for ANU HR practitioners; minimising adverse outcomes for ANU in relation to any breaches of the industrial and policy framework of ANU and ensuring no significant breaches are recorded for matters within the control of HRD...
I have asked Brad to think about moving into more of an HR space rather than the strong IR technical space, including developing relationships beyond his current strong connections...
Obviously Brad is chaffing about the requirement to advise of his whereabouts but I asked that he think about it and have a professional conversation about that directly with you. My approach was to reinforce your role, without being provocative.
Happy to discuss - otherwise I will leave it for you and Brad to finalise and sign in the next day or so.
On 6 March 2009 Dr White and Mr Beasley signed a Statement of Expectations (SOE) document. The document was signed by Mr Stewart on 10 March 2009. These documents were prepared and agreed by all staff and were intended to form the basis of the employment arrangements for the staff member over the following 12 months. There was a mid-year and final review at the end of the 12 month period. The purpose of the final review was to “conduct a formal annual discussion to review achievements against the established expectations” and “evaluate [the] outcome of [the] career development plan” set out in the SOE. The final review was to be documented and the supervisor was to “determine [an] overall rating”. According to Dr White, the SOE was prepared by Mr Beasley. The SOE recorded Mr Beasley’s title as “Senior Employment Strategies Advisor - Legal” and noted a number of legal services to be provided to the ANU. Dr White said there was some “disconnect” between Mr Beasley’s duties as she understood them and the SOE but Mr Beasley would not have signed the document if she did not agree to these matters so she did not seek to push the issue at that stage. She said that Mr Beasley was difficult to deal with – he was combative. She could agree to the SOE in the form drafted by Mr Beasley as it contained the key duties of a senior HR consultant. If she placed less weight on the legal aspects referred to in the document, it was not inconsistent with her view of Mr Beasley’s role.
The SOE contained four sections: Section 1 being “Position expectations”; Section 2A being “Career development plan core capability review”; Section 2B being “Career development plan” and Section 3 being “Review against expectations”. In Section 1 there were 21 projects or tasks listed and six of them had a ‘legal’ emphasis (that is, providing relevant technical and legal advice, representing the ANU at tribunals and courts, briefing and instructing counsel as required and providing professional services as a ‘retainer’ to a subsidiary of ANU on a fee for service basis, which may or may not have involved the provision of legal advice). In Section 2B, Mr Beasley’s continued participation with professional associations, conferences and seminar programs, was listed as actions to support Mr Beasley’s development needs for “career advancement and direction”. This included “promoting the profile of the ANU” at the ACT Law Society, the Industrial Relations Society of the ACT and the Australian Corporate Lawyers Association.
Mr Beasley stated that he started seeing a psychologist on or about 18 May 2009 because of anxiety at work. He was not sleeping and starting to “self medicate”.
In late May and during June 2009, Mr Beasley worked on a matter in relation to an alleged misconduct case within the ANU. He worked on the matter under the supervision of Mr Watts, which involved providing advice to Ms Anne Kealley, College General Manager, in relation to a staff member. Mr Beasley provided advice to Ms Kealley and a draft letter for her consideration. When he did not hear from her about the draft, he emailed Mr Steven Dover, who was acting in the role of Director, Human Resources Division, in the absence of Mr Watts, who was overseas at the time. Mr Dover decided to leave the matter to Mr Watts for his return but in the meantime, Dr White emailed Mr Dover, Mr Stewart and Mr Watts, raising concerns about Mr Beasley’s conduct of the matter. She complained that Mr Beasley “only takes instructions” from Ron Watts. She also advised Ms Kealley was “dissatisfied with the draft correspondence and … wants a less legalistic approach” and complained about inaccurate file notes prepared by Mr Beasley.
There is no evidence about whether these issues were raised directly with Mr Beasley at the time but it appears they were not as Mr Beasley does not refer to them.
At about this time the Human Resources Division sent “Consulting Service Evaluation” forms to certain senior managers in respect of the services provided by members of the Division. The evaluation form identified a service category on the left-hand side and a rating in respect of that service from 1 to 4, being “very dissatisfied” to “very satisfied”. Mr Watts said these surveys were intended to assess client feedback about the service provided by the Human Resources Division and whether improvements could be made. The clients of five staff members in the Human Resources Division were chosen. Mr Beasley was chosen because he had worked on a complex project for Ms Kealley, who headed a high profit area for the ANU.
An evaluation form was sent to Ms Kealley. She completed the form and out of 12 categories of services, she rated the service provided by Mr Beasley as “3” in relation to seven categories, “2” in relation to three categories and “N/A” in relation to two categories. Ms Kealley commented as follows:
At the time, had only had 1 interaction with Bradley. Initial draft of letter was more complex than required. Appeared to be a miscommunication or misunderstanding as to what had been requested.
The three categories in respect of which Ms Kealley expressed dissatisfaction were “responded in a timely manner”, “communicated with clarity and relevance” and “produced a high quality product or advice”. On the other hand, Ms Kealley was satisfied that the advice was helpful, Mr Beasley was accessible and understood her operations, gave advice with options that appropriately addressed the risks and opportunities, worked toward a positive resolution of the issues raised, displayed proficient understanding of human resources policy and practice and demonstrated a high standard of ethics, integrity and professionalism.
On 20 August 2009, Dr White and Mr Stewart met with Mr Beasley to discuss Mr Beasley’s mid-year review. According to the explanatory notes about the SOE (which was agreed on 6 March 2009), expectations can be adapted at the mid-year review if priorities change. As a number of the witnesses from the Human Resources Division who gave evidence noted, the mid-year review was intended to be both forward and backward looking. Dr White said that the purpose of the meeting was to give Mr Beasley’s feedback on his performance over the past 6 months but also to discuss the directions for the Division over the next 12 months and any changes that needed to be made to the SOE in light of those proposed directions. After initial discussions about the proposed objectives of the Division, Dr White tabled a document setting out those matters. She then raised Mr Beasley’s mid-year review. She advised that Mr Watts had surveyed selected senior leaders within the ANU to obtain input about the service provided by senior staff within the Human Resources Division. Mr Beasley was provided with a copy of the evaluation of Ms Kealley during this discussion. According to the Dr White, Mr Beasley was asked to provide his “initial reflection” on the SOE for the mid-year review. Mr Beasley was also asked to provide feedback on the directions document and on the evaluation form from Ms Kealley. A further meeting was scheduled for 27 August 2009.
It was clear from the evidence that there are very different views about this meeting. Mr Stewart said that the evaluation form was not prepared for the purpose of performance appraisal and was part of the “operational requirements” for the Division and to obtain client feedback on the provision of services. Mr Stewart said that he did not realise Mr Beasley had not seen the evaluation before the meeting but did not consider the document, read as a whole, to be negative. It was just one of the issues he wanted to discuss with Mr Beasley as part of the SOE and mid-year review. An email from Dr White to Mr Stewart providing a summary of the meeting did not indicate there were any issues raised by Mr Beasley and she recorded the following:
Paul asked if Brad has any questions so far and was happy with the initial meeting and Brad advised that he was happy with the process.
On the other hand, Mr Beasley gave evidence he felt “depleted, angry, defeated and helpless”. On his account, the evaluation form was “a load of rubbish”, “none of the information provided was true or accurate” and he was being “targeted” as part of a bigger plan devised by Dr White and Ms Kealley to try and bully him into resigning.
Following this meeting, Mr Beasley prepared a detailed response in relation to each of the categories in respect of which Ms Kealley had expressed dissatisfaction with his service. His response was 4 and a half pages, with attachments, being copies of his advice and relevant correspondence. At the end of his document, under the heading “Resolution”, he requested an explanation as to why Ms Kealley was the only person approached to respond to the survey, statutory declarations from both Ms Kealley and Dr White stating that they had not colluded prior to the evaluation, an undertaking that the evaluation be removed from his file and an undertaking that Dr White would “cease acting in a bullying and harassing manner towards [him]”.
At 2:20 pm on 27 August 2009, an hour and 40 minutes before the scheduled meeting with Mr Stewart and Dr White, Mr Beasley sent an email to both of them. He stated that the evaluation form and other issues as referred to in a document prepared by him needed to be addressed at the meeting and the second document provided by Dr White at the meeting of 20 August 2009 was not relevant to his mid-year review and “as such I do not accept that it be part of my mid term review”. There was no response from Dr White but Mr Stewart responded at 3:58 pm that he would be happy to discuss but confirmed that the directions document provided by Dr White was relevant because the mid-year review is intended to “look forward as much as backward”.
The meeting proceeded at 4 pm on that day and was heated. Mr Stewart asked Mr Beasley for the reflection document and Mr Beasley said he had not prepared it because he was concerned with responding to the Kealley evaluation. According to Mr Beasley, Mr Stewart became angry that the other document had not been prepared. Mr Stewart agreed he “forcefully” expressed his concerns that Mr Beasley had not prepared the other documents requested. Dr White prepared an email (to which Mr Stewart made some amendments) recording her account of the meeting, also noting that Mr Stewart expressed dissatisfaction. Relevantly, Dr White also recorded the following:
Nadine outlined, as she had done the week before, that the evaluation document had been provided with the intention of discussing service improvements for the Unit and that the workload document was to be used in terms of planning for the remainder of the year...
At the end of the meeting Mr Stewart advised that Mr Beasley’s response to the evaluation form and complaints about Dr White should be treated as a separate process and would proceed the following week. In his response, Mr Beasley raised a concern that Dr White was “bullying and harassing him”. Mr Stewart apparently discuss this with Mr Watts after the meeting on 27 August 2009 and on 28 August 2009, Mr Beasley met with Mr Stewart and Mr Watts to discuss his response and request for resolution. Mr Beasley recounted the meeting in his statement, which he said was prepared on the basis of notes from his diary. Mr Watts and Mr Stewart both said they could not recall all of the matters discussed but they did not refute any of the statements said to have been made.
On 28 August 2009, Mr Beasley sent an email to Mr Watts, with a copy to Paul Stewart, summarising the points discussed and the outcomes of the meeting as follows:
1.That it was you who sent the Feedback form out in consultation with the Associate Directors.
2.That you will not facilitate Anne Kealley or Nadine White undertaking statutory declarations as requested as it is not necessary and you have the highest regard for Nadine White.
3.That Anne Kealley’s document will not be placed on a University file related to me.
4.That Anne Kealley’s document will not be destroyed.
5.That Anne Kealley’s document will have my reply keep with it.
6.That client feedback forms are related to service delivery.
7.That client feedback forms have nothing to do with staff performance.
8.That client feedback forms are not used in any respect when making decisions about staff performance.
9.That client feedback is not necessarily accepted.
10.That when you sign a document you consider it to be suitable for its use. For example my documents drafted in the … matter.
11.You did not necessarily see examples of the Nadine White’s conduct towards me as bullying or harassing. We were not of like minds on this point.
12.You would consider my suggestion that Deborah May be invited to facilitate harmonious relations between Nadine White and I.
13.That I am free to escalate this matter if I wish.
14.That we may discuss further matters relating to this next week.
Mr Watts responded on 1 September 2009 that he agreed “in general” with the outcome summary but noted as follows:
Items 7 and 8 are expressed a little too generally - the discussion went something like the purpose of the survey was to test service delivery and not evaluate staff performance as such, although there may be issues that might warrant follow up with services or how we deliver them. In the … case there was an issue about the complexity of letters which we will follow up for future letters.
He also noted additional matters to the following effect:
(a)positive client feedback could be recorded in monthly reports as this was relevant to service delivery;
(b)it was reasonable for Nadine White to ask Mr Beasley to account for his whereabouts during work hours but not during lunch breaks;
(c)Mr Beasley had not raised any complaint about the conduct of Nadine White prior to the meeting and he should have followed the grievance policy procedure, which he would have understood given his role within the Human Resources Division;
(d)while Dr White acknowledged Mr Beasley’s concern about the evaluation report, it was “overkill” to provide such a lengthy document and then fail to provide the one page reflection document Paul Stewart had requested;
(e)notwithstanding the tension between Mr Beasley and Dr White, discussions about the mid-year review and changes in the focus of services to clients and change management within the Division should continue, with the involvement of Paul Stewart;
(f)Mr Beasley should raise issues with Dr White first as part of the grievance procedure and if issues could not be resolved, Mr Watts would consider external facilitation.

It was common ground that the mid-year review was not finalised and the grievance process did not proceed as Mr Beasley went off work on 31 August 2009 and did not return.
Mr Beasley presented medical certificates dated 1 September 2009 to 13 November 2009 from his treating doctor, Dr Carlo Penna, stating that he was unfit for work due to “anxiety and depression”. The date of injury recorded on the certificates was said to be “2006”.
Mr Beasley made a claim for compensation on 29 September 2009, citing “anxiety and depression” as his injury. He was referred to Dr Hampshire, forensic psychiatrist, by Dr Penna and saw Dr Hampshire on 28 or 29 September 2009.
On 24 November 2009, Mr Beasley contacted Dr Penna after feeling he could not cope and Dr Penna, in consultation with Dr Hampshire, arranged for him to be admitted to the psychiatric ward of the Concord Hospital the following day, where he stayed until 2 December 2009. According to the discharge summary from Concord Hospital, Mr Beasley had been drinking heavily prior to his admission. He had suicide ideation, depressed mood and extreme anxiety. There is no dispute that Mr Beasley was very ill at this time.
Mr Beasley’s claim for compensation was denied on 29 January 2010 on the basis that the performance review of 20 August 2009 was the significant cause of his condition and liability for his injury was therefore excluded under s 5A(1) of the Act.
On 3 February 2010, Mr Beasley was notified an appointment had been made for Dr Kathryn Lovric, psychiatrist, for an assessment scheduled for 31 March 2010. By this stage, Mr Beasley retained lawyers, Firths Lawyers, and they responded by letter dated 29 March 2010 that medical examination was premature until the ANU had complied with the terms of the relevant industrial instrument. A second appointment was scheduled for 12 May 2010 but Firths notified the ANU that Mr Beasley would not be attending.
On 1 June 2010, ANU gave 6 months’ notice to Mr Beasley of the termination of his employment for refusal to undergo the medical examination. The termination was given on the basis that it was reasonable to conclude Mr Beasley was unable to perform his duties and would be unlikely to resume them within 12 months.
On 30 July 2010, Mr Beasley applied to Fair Work Australia to deal with the dispute, being an allegation that the ANU had not lawfully terminated his employment. Fair Work Australia dismissed the application for want of jurisdiction on 30 September 2010 on the basis that Mr Beasley’s employment had not yet been terminated. A further claim was made on 20 January 2011 after Mr Beasley’s termination took effect. There was no evidence about whether this claim has been finalised.
Mr Beasley was reviewed by a number of medical practitioners after and at around the time he made his claim. The medical evidence and evidence relating to the cause of Mr Beasley’s injury is in dispute and is referred to below.
CAUSATION – EVIDENCE ABOUT MR BEASLEY’S INJURY
There is dispute about when Mr Beasley’s “injury” first arose and the cause for his psychological injury. Counsel for Mr Beasley submitted that his injury first arose in 2006 when he was treated by Mr Jones. In the alternative, it was submitted that Mr Beasley’s injury was part of a gradual process that started in 2006 and that the events of late August 2009 were the “final straw”.
Counsel for Comcare submitted that Mr Jones treated him for depression in relation to personal issues. Mr Beasley did not take any time off for work related anxiety prior to 31 August 2009. He was robust and well able to deal with disputes in the workplace and had in fact threatened taking legal action on more than one occasion – he was not bullied or harassed by his supervisors. There is no evidence that he suffered from a psychological condition, that is, a condition “outside the boundaries of normal mental functioning and behaviour” (Comcare v Mooi (1996) 69 FCR 439) prior to 25 September 2009, when he first sought treatment.
According to a report from Dr Penna dated 1 January 2010, Mr Beasley’s symptoms were “typical of severe anxiety & depression illnesses”. Mr Beasley had told him he had “suffered several years of harassment at work but his symptoms had only become intolerable in the last few months”.
Dr Hampshire provided reports dated 10 December 2009 and 9 August 2010. Both reports were in similar terms but the second report provided some updated information. Dr Hampshire also gave oral evidence. According to Dr Hampshire, Mr Beasley had a “Major Affective Disorder of marked severity”. Mr Beasley reported harassment over a period of three years and told Dr Hampshire he had seen two psychologists in relation to the harassment in this period. Dr Hampshire reported that Mr Beasley told him that issues had arisen during August 2009 that were being driven by Mr Watts, Mr Stewart, Dr White and Ms Kealley. He felt they were acting in a covert manner to damage his career. The “relentless persecution and bullying and harassment” had been going on for three years but this incident “tipped” him over the edge. Dr Hampshire was of the view Mr Beasley had Post Traumatic Stress Disorder (PTSD) as a result of the work related incidents described to him by Mr Beasley. It was not his impression that Mr Beasley’s breakdown was the result of personal relationship issues or alcohol abuse. Mr Beasley was very organised, structured and obsessive and could be vulnerable to mental illness in certain circumstances. He had assessed Mr Beasley two weeks before the hearing and was impressed with his progress. Mr Beasley was “not far off being fully recovered”.
Dr John Champion, psychiatrist, provided a report dated 6 May 2011 in respect of an assessment undertaken of Mr Beasley on 27 April 2011. Dr Champion also gave oral evidence. According to Dr Champion, Mr Beasley had experienced an episode of depressive illness, most likely an Adjustment Disorder with depressed mood, with onset during August 2009. Mr Beasley may have had some subclinical depression prior to this but Dr Champion reported that Mr Beasley was adamant that his work had not suffered and it was the events in August 2009 that precipitated his seeking medical assistance and ceasing work. Dr Champion was of the opinion that Mr Beasley may have some predisposition towards overreaction on the basis of his strongly obsessional personality structure. The severity of his depressive episode may also have been contributed to by the heavy alcohol consumption reported at the time of his hospitalisation. According to Dr Champion, even though Mr Beasley reported he had been stressed by the work situation from 2005, it was not until 2009 that his condition developed to the point of a diagnosable depressive disorder. Dr Champion did not agree that Mr Beasley had PTSD but accepted he had a major depressive disorder. He also accepted there was no evidence that the alcohol intake recorded in his admission notes demonstrated a history of alcohol abuse. Mr Beasley himself conceded he had turned to alcohol in times of stress but was otherwise a “social drinker”.
Mr Beasley said that he consulted Ms Rachael Dumbleton, a counsellor at Relationships Australia, on or about 18 May 2009 because he was conducting himself in an erratic manner, was not sleeping and ruminating. According to Mr Beasley, after dealing with Dr White at a fortnightly meeting at that time he “realised” that these feelings were “stemming from the bullying and harassment by Ron Watts, Paul Stewart and Nadine White”. Ms Dumbleton produced her notes to the Tribunal but did not give evidence. The notes record that the primary reason for the initial consultations was for counselling about Mr Beasley’s personal life and relationship issues. However, there was a reference to “work pressure (3 years)” in the notes of 7 July 2009. According to the notes, Mr Beasley saw Ms Dumbleton about six times between 18 May 2009 and 28 October 2009. It appears that Mr Beasley did not see Ms Dumbleton from 7 July until after he left work. The notes of his discussions with Ms Dumbleton in September and October 2009 suggest work issues dominated the discussion.
There was no evidence that Mr Beasley was being treated by any other psychologists or doctors from 2006 in relation to work related matters.
CAUSATION - FINDINGS
It is common ground that Mr Beasley’s psychological injury was a “disease” within the meaning of the Act. Section 7(4) of the Act provides that an employee shall be taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when the employee first sought medical treatment for the disease, or aggravation, or when the disease or aggravation first resulted in the incapacity for work or impairment of the employee, whichever happens first. While s 7(4) is a deeming provision as to when the date of an injury occurred, it is not determinative of issues relating to causation of an injury, as noted by Heerey J in Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289 at 293 as follows:
In my opinion, s 7(4) is to read as applying to any employee who has otherwise established a right to compensation in respect of incapacity from an “injury” in the nature of a disease. Such a right is determined elsewhere in the Act, namely by s 14.
As the AAT pointed out, s 7(4) can have useful work to do by providing a certain starting point in the case of diseases, some of which may be of gradual development, to enable the calculation of such matters as entitlements to benefits, or the commencement date from which a statutory period for making an election or lodging a claim should run.
It is therefore still necessary to review the evidence to form a view about whether there is a causal connection between an injury and work-related incidents to establish whether the injury is compensable under s 14. It is also relevant to consider the causal connection in the context of determining whether an injury falls within the exclusory provision and, in particular, whether the injury was “as a result of” reasonable administrative action, or reasonable disciplinary action in the case pre-13 April 2007 injuries.
There is evidence that from about 2006 Mr Beasley disagreed with his supervisors about his role and his title and was not happy about reporting to Dr White. He stated that he was stressed and had sleepless nights from at least September 2006. Mr Beasley conceded he had personal issues at this time but attributed much of his anxiety to what he referred to as “bullying and harassment” by Dr White and others at ANU. Notwithstanding this, the evidence is that he hardly raised work related issues with Mr Jones during his consultations and there is no evidence he sought medication for depression before 2009. He did not take any time off work for depression, did not lodge any formal grievance against Dr White until August 2009 and told Dr Champion that he was still able to function. There is no evidence that his performance was affected. Moreover, Mr Beasley told Dr Penna that his symptoms had only “become intolerable” in the last few months prior to him leaving work. He told Dr Hampshire that it was the events of August 2009 that tipped him over the edge.
Section 14 provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury “results in death, incapacity for work, or impairment”. If an employee does not seek treatment or cease work, a psychological injury may still be compensable under s 14 if the injury had an effect on the employee’s capacity to work. According to Drummond J in Comcare v Mooi (at 443-444):
It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
While there is evidence of workplace conflict during 2006 and 2007, there is no evidence that this conflict was affecting Mr Beasley’s capacity to work or that his condition was “outside the boundaries of normal mental functioning and behaviour”. He was stressed but was continuing to function. As such, the answer to Issue (a) is “no” and issue (b) is therefore not relevant.
It was conceded by Comcare that Mr Beasley suffered a work related psychological injury but the key issue for determination was whether or not this injury was “as a result of reasonable administrative action taken in a reasonable manner”.
An injury will result from an excluded cause if that cause was one of several that lead to the development or aggravation of the injury (Hart v Comcare (2005) 145 FCR 29). In Hart the Full Federal Court referred to an “operative” cause of the injury as engaging the exclusion. The Tribunal had found that the excluded cause “materially contributed” to the applicant’s injury and it was accepted that this was one of the operative causes. It should be noted that this case involved construction of the pre-13 April 2007 injury provisions. According to the decisions of this Tribunal in Re Lynch and Comcare (2010) 114 ALD 394; [2010] AATA 38 and Re KRDV and National Australia Bank Ltd (2011) 125 ALD 311; [2011] AATA 210, which both related to injuries found to have been sustained after 13 April 2007, a cause will be “as a result of” if the cause materially contributed to the injury.
However, Counsel for Mr Beasley contended that the relevant exclusory factor should contribute to the same degree as required in order to prove the compensability of the condition, namely that for injuries after 13 April 2007 the cause must be “significant” rather than “material”. He relied on the reasoning in the decision of Deputy President Jarvis in Re Carpenter and Comcare (2010) 116 ALD 190; [2010] AATA 62 at [99] – [105], and more particularly at [103] – [105] as follows:
[103] Recent decisions of the High Court of Australia make it clear that legislation must be interpreted to give effect to the intention of parliament, and while the best guide to that intention is to look at the words of the Act in question, those words must be construed in their context and so that the Act is consistent internally.
[104] If the interpretation of “disease” and the exception to the definition of “injury” is approached in this way, I think that a requirement of a “material contribution” should be implied into the exceptions to the definition of “injury”, since otherwise the exceptions to the definition would be wider than the primary requirements of the definition of “disease”, which is a subset of “injury”. This would be incongruous, and would not, I think, accord with parliament’s intention. I accordingly conclude that on the proper interpretation of the definition of “injury” the exceptions to that definition only arise where the excepted events contribute in a material way to the disease in respect of which compensation is claimed. I do not, with respect, agree with the contrary view expressed by the tribunal in Layton (supra), and I note that in any event, the tribunal’s views were obiter, because it had found that the excepted event in question in that case had made a material contribution to the applicant’s disease.
[105] I think my above conclusion is also supported by the consideration that the SRC Act is remedial legislation, and where two constructions are possible, that which is favourable to the worker should be preferred: Whittaker v Comcare (1998) 86 FCR 532 at 544. Issues of causation have long caused difficulties in many areas of the law, and various tests of causation have been formulated, taking into account the context in which the issue has arisen, considerations of policy and value judgments, and ultimately the need to arrive at a just and reasonable outcome in particular cases. The expression “as a result of” in the exception to the definition of “injury” does not have a precise meaning, just as the concept of causation in the law is flexible. The expression “as a result of” is capable of denoting various degrees of relationship between the injury in question and the excepted events. I consider that it should be construed in a way that is beneficial to the injured employees.
The parties did not refer to any other authorities on this issue but we accept this formulation but nonetheless note that a lower threshold would have no effect on our findings on the cause of the injury in any event. We are satisfied on the evidence that the events of August 2009 significantly contributed to Mr Beasley’s major depressive disorder and our reasons on this aspect follow.
There is evidence that Mr Beasley had a number of ongoing personal and relationship issues from at least 2006 for which he was receiving counselling in 2006, early 2007 and May 2009. Added to this, he was in conflict with his supervisors about his role. His legal status was important to him and in 2004 he negotiated additional entitlements around this. Mr Beasley was employed as a senior officer in the Human Resources Division and his role was to provide strategic HR advice and support to senior managers on a range of employment matters. He insisted that this also involved providing “legal advice”. Mr Beasley’s supervisors were prepared to concede that, because of the nature of employment matters, it may be construed that this was part of his role but as Mr Watts put it, Mr Beasley was employed as a senior human resources consultant with a legal background, not as a “legal practitioner”. This, and Mr Beasley’s perception he was being undermined, drove much of the conflict from 2006.
The second issue that caused conflict was that Mr Beasley resented being supervised by Dr White, they did not communicate well and what was considered to be his legalistic adversarial style was being criticised. Mr Watts was attempting to change the culture of the Human Resources Division as a service provider to senior managers at the ANU and Mr Beasley was reluctant to engage with this, as evidenced by his comments to Paul Stewart about the directions document provided to him on 20 August 2009.
Dr White’s appointment in August 2008 intensified, at least in Mr Beasley’s mind, the conflict which had commenced three years earlier. Dr White’s role included “Change Services” and this must have been confronting for Mr Beasley, particularly given his personality. The negotiation of the SOE in March 2009 was an opportunity for these issues to be discussed. Mr Beasley included services that had a legal focus. While Dr White did not agree these should be included or given emphasis, she did not argue because in her mind, when read as a whole, Mr Beasley’s SOE was not inconsistent with her view of his role. Mr Beasley was allowed to retain his title, as recorded in the SOE, but Dr White, Mr Watts and Mr Stewart did not agree this was a concession that he was a legal officer rather than a human resources consultant.
These conflicts and Mr Beasley’s personal issues were clearly having some impact on Mr Beasley but it was not until July 2009 that he focussed on work related issues as a concern during counselling. This is consistent with the information Mr Beasley is reported to have told Dr Penna. Dr Penna was Mr Beasley’s treating doctor of many years and the first time he sought treatment from Dr Penna in relation to these issues was on 1 September 2009.
Based on information provided to him by Mr Beasley, Dr Hampshire noted that Mr Beasley complained of symptoms of PTSD “which enveloped him sometime after 2006 but well into 2007 and 2008”. Dr Hampshire noted that Mr Beasley told him he had seen two psychologists in the preceding three years “once when the harassment began and one more just prior to his cessation of work”. However, it is relevant to note that Mr Beasley did not tell Dr Hampshire he had sought counselling because of relationship rather than work issues in 2006, was still seeking counselling for those issues in May 2009, had not taken any time off work for employment related stress and did not seek treatment for this until he raised it with Ms Dumbleton in July 2009 and visited Dr Penna on 1 September 2009.

Dr Champion was of the opinion that Mr Beasley may have had “subclinical” depression up until the events in August 2009. In contrast, Dr Hampshire was of the opinion Mr Beasley “was in the grip of a very savage depression” by August 2009. This is a critical issue in respect of the impact of the meetings in August 2009.
We accept that by August 2009, Mr Beasley was likely to have been depressed as a result of the build up of work conflict and his underlying relationship issues. He was sensitive to what he perceived as attacks on him and his professional status but he was also vulnerable because of his obsessional personality. However, we are not satisfied that he was on a precipice and was simply pushed over the edge by the events of August 2009. He was still functioning in a high level role and had been for several months, despite the concerns he raised in July 2009. While his reaction to the Kealley evaluation was arguably disproportionate, his response was focussed and well reasoned.
Mr Beasley’s evidence was that from early 2006, he was unable to sleep, had difficulty in concentrating and was having nightmares. He recounted similar evidence after his meetings with Mr Watts in July and October 2006, meetings with Mr Stewart in mid 2008 and after fortnightly meetings with Dr White in May 2009. Yet he did not seek treatment for these symptoms until September 2009 and made few references to work stresses in his dealings with counsellors and psychologists until July 2009, when he saw Ms Dumbleton. Mr Beasley denied he was exaggerating his symptoms but the evidence, including information he provided to Dr Penna and Dr Champion, suggests otherwise.
When Mr Beasley was presented with the Kealley evaluation during his mid-year review meeting on 20 August 2009, he did not say much to Dr White and Mr Stewart but we accept that this had a significant impact on him. The evaluation was critical of issues that Mr Beasley would have regarded as most important – the clarity, timeliness and especially the quality of his advice. In his view the information provided by Ms Kealley was inaccurate. He took no account of the positive statements and rather than accept the feedback as an inaccurate perception by a client about aspects of his service that should be considered and discussed, Mr Beasley took offence.
Mr Beasley was properly given time (five days but he took seven) to respond to the evaluation. His response was detailed and he refused to focus on the other issues raised at the meeting of 20 August 2009. This frustrated Mr Stewart, who attempted to downplay the criticisms. Both Dr White and Mr Stewart said they did not consider the evaluation was negative and they wanted to discuss the directions for the Human Resources Division over the next 12 months as part of a discussion about whether there should be any changes to Mr Beasley’s SOE. Neither recognised the importance of the Kealley evaluation to Mr Beasley and his response was described as “overkill”.
The concerns Mr Beasley had raised in the meeting of 27 August 2009 were escalated to Mr Watts but the discussion with Mr Watts and Mr Stewart the following day did not resolve any issues for Mr Beasley. If anything, it confirmed in Mr Beasley’s mind that his supervisors were acting, as he expressed to Dr Hampshire on 29 September 2009, in a “covert” manner against him. In his statement, Mr Beasley stated, when referring to the meeting of 28 August 2009, as follows:
I left the meeting feeling as if all the pieces of the jigsaw puzzle had come together. It was my opinion that Nadine was working with Anne to undermine me and I believe Ron had been trying to attack me and undermine my position since he commenced at the University. I believe Ron was responsible for directing the consulting services evaluation form to certain managers for comment on me. I felt like I really did not have any hope of standing up for myself.
Mr Beasley worked one day after this meeting but did not return to work after this and immediately consulted Dr Penna and later Dr Hampshire. He was on antidepressants and suffered acute symptoms by 25 November 2009, when he was admitted to hospital. The proximity of events in late August 2009 to Mr Beasley’s incapacity, acute symptoms and treatment, together with his own evidence about his feelings after the meeting of 28 August 2009, lead us to the conclusion that those events in August 2009 were a significant cause of Mr Beasley’s major depressive disorder. In other words, Mr Beasley’s disorder was “as a result of” the events in late August 2009.
The question therefore arises as to whether these events fall within the exclusion of “reasonable administrative action taken in a reasonable manner”.
REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER?
Section 5A(2) provides a non-exhaustive list of what is meant by the expression “administrative action”. It includes appraisal of performance, counselling, disciplinary action, and anything done in connection with such actions, or anything done in connection with a failure to obtain a promotion, reclassification, transfer or benefit or to retain a benefit in connection with employment. As observed by Professor Creyke, Senior Member, in Re Shardlow and Comcare [2012] AATA 10, despite not being exhaustive, s 5A(2) is “not at large”.
Counsel for Mr Beasley contended that the provision of the evaluation to Mr Beasley was not “administrative action”. The evaluation was for the purposes of the Human Resources Division more generally in assessing client satisfaction and was not part of an appraisal of Mr Beasley’s performance. This submission was based on decision of the Full Federal Court in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; [2012] FCAFC 21, which was handed down not long before closing submissions. There are some similarities between the facts in Reeve and this case because in both cases managers employed a survey to assess “customer” satisfaction.
In Reeve the applicant was the manager of a branch in Perth. He was required to participate in teleconferences three times a week with his supervisor and other branch managers to report on and explain the results of the branch lending activities and customer experience surveys for the previous week. The customer surveys were conducted by a research agency which contacted customers who had attended the branch and asked the customer to rate the service of the branch on a scale from 1 to 10. The Bank would award a score of 100% for ratings of 9 or 10 but zero for any rating less than 9. Branch managers were advised of the results each Friday and their bonuses were linked to the results. Mr Reeve said that he felt upset and humiliated by what he understood to be criticism of him by his supervisor during these teleconferences. Mr Reeve suffered a major depressive disorder and attempted to commit suicide. In the appeal the Bank contended that the weekly teleconferences, the customer surveys and their use of them was “reasonable administrative action” within the meaning of s 5A(1) and also one or more of ss 5A(2)(a), (e) or (f).
Rares and Tracey JJ held that the qualification in the final phrase of the exclusion in s 5A(1) was important in that it requires that the action be taken “in respect of the employee’s employment”. The teleconferences, customer surveys and their uses “were not administrative action taken in respect of [Mr Reeve’s] employment –they were part and parcel of his employment”. Moreover, the teleconferences and use of the customer surveys were not within the exclusionary provisions of s 5A(2) as they were not being done in connection with any appraisal of the employee’s performance - “they were done as part of the ordinary course of Mr Reeve’s employment and in appraising the performance of his branch”.
Counsel for Mr Beasley argued that the same could be said of the evaluation survey. There was support for this in the evidence of Mr Beasley’s supervisors, who all gave evidence that the evaluation was not collected for the purposes of a performance appraisal of Mr Beasley. Counsel made no submissions about whether the meetings in late August 2009 involved the appraisal of Mr Beasley’s performance or whether they were done “in connection” with an appraisal based on Reeve but this was understandable given neither party had the opportunity to consider the implications of the decision of the Full Federal Court on the facts of this case. The primary submission was to the effect that the action, if administrative in nature, was not reasonable and was not taken in a reasonable manner given the history of the matter and the fact the evaluation was critical but was presented to Mr Beasley during the mid-year review without notice.
Counsel for Comcare contended that the meetings of late August 2009 related to Mr Beasley’s mid-year review, which was an employee appraisal process within the meaning of s 5A(2)(a) and (e) of the Act. The evaluation was provided to Mr Beasley “in connection” with the appraisal because appropriate service delivery to clients was a key expectation of staff in the Human Resources Division, including Mr Beasley. This case can be distinguished from the facts in the case decided by the Full Federal Court in Reeve.
Notwithstanding the contention of Counsel for Comcare, the evidence of Dr White, Mr Watts or Mr Stewart was to the effect that the evaluation was not provided to Mr Beasley “in connection with” any appraisal of his performance.
According to Dr White, the evaluation was provided to Mr Beasley to assist him on how to “initiate better service delivery”. Mr Stewart said the evaluation was not sought for the purpose of Mr Beasley’s performance appraisal, although it was given to him as part of the review meeting as it was relevant to service delivery. Notwithstanding this, the fact that Mr Stewart did not expect the meeting of 27 August 2009 to focus on Mr Beasley’s response to the evaluation is consistent with his view about the purpose of the mid-year review. Mr Stewart said that a mid-year review would generally take one and a half hours: comprising 30 minutes discussing the past, 30 minutes discussing the future and 30 minutes discussing career development. According to the explanatory document published by the Human Resources Division in relation to the SOE, the mid-year review was not mandatory but was recommended to “provide formal feedback and ensure [the] relevance of [the] agreement”. There was no review of achievements against expectations or a performance rating. This was done at the final review at the end of the SOE.
It is relevant that both Dr White and Mr Stewart said they did not consider it necessary to give Mr Beasley a copy of the evaluation in advance of the meeting of 20 August 2009. They were experienced human resources executives and if the evaluation was going to be used to appraise Mr Beasley’s performance one would have thought they would ensure he was provided with a copy of the evaluation prior to the meeting. While the evaluation was positive it was also critical on material aspects. It was not unreasonable for Mr Beasley to address the criticisms. His written response included a chronology of the events to address the criticism of delay, he provided copies of the advice and noted that the letters were sent, in many cases with no or minor amendments by Ms Kealley and Mr Watts. The case involved allegations of serious misconduct and he disputed the criticism that the documents were too complex given the seriousness of the matter.
Mr Stewart was not expecting to discuss the evaluation in any detail at the meeting of 20 August 2009. He said he did not want a detailed response nor did he want to discuss the issues at length at the second meeting. He was more interested in a “one page reflection” and wanted to discuss the directions of the Human Resources Division over the next 6 to 12 months. This suggests the evaluation was not provided “in connection with” an appraisal of Mr Beasley’s performance and that this was not the purpose of the meeting of 20 August 2009. This is consistent with the explanatory document published by the Human Resources Division in respect of SOEs. According to the explanatory document, the mid-year review was not mandatory but if undertaken would involve the following:
·Conduct a short dialogue on progress halfway through the review cycle to ensure feedback and changes to expectations can be made if required
·Review progress on career development plan
·Adapt expectations if priorities change
This is to be contrasted to the final review, which was a formal documented review process where the employee’s achievements were measured against the agreed expectations. The employee was given a rating and presumably bonuses or pay reviews were based on these ratings.
Mr Watts was not involved in the meetings on 20 and 27 August 2009 but in his email of 1 September 2009, he stated that the purpose of the survey was not to “evaluate staff performance as such” and noted it may be used to follow up with how services would be delivered. This was consistent with the concept of providing “feedback” and making any changes to the expectations for the balance of the period.
Mr Beasley was clearly anxious about this and there is evidence that he approached his response to the evaluation and the meetings of 20 and 27 August 2009 as if they were performance appraisal meetings. His response to Mr Stewart that he did not consider the directions document to be relevant to his mid-year review demonstrates his view of the meeting was at odds with the views of Dr White and Mr Stewart. This is not surprising as there is evidence of a divergence in views on a number of key matters between Mr Beasley and his supervisors, some of which can be attributed to imprecise verbal and written communications. However, Mr Beasley’s view of the evaluation and meetings is not determinative of the issue. The nature of the meetings, including the use of the evaluation during the meetings, and whether these matters were “administrative action” within the meaning of ss 5A(1) and (2), is a question of fact.
According to the Macquarie Dictionary “appraisal” means “the act of assessing the worth, quality, or condition or anything” or “an assessment or statement of worth, quality, or condition”. Based on the evidence of Mr Beasley’s supervisors, including their email correspondence, the SOE and the SOE explanatory document, we find that the mid-year review meeting of 20 August 2009 and the subsequent meetings were not meetings held in connection with an appraisal of Mr Beasley’s performance. The mid-year review involved feedback but was not an “appraisal” of Mr Beasley’s performance – this was the role of the final review. The use of the evaluation form was not for the purposes of any appraisal of Mr Beasley and the last meeting of 28 August 2009 was primarily to discuss Mr Beasley’s grievance against Dr White and his proposed resolution.
It was not contended that any of the other exclusions applied. The meetings were not disciplinary or counselling in nature and there was no suspension involved. There may be an argument, although this was not raised, that Mr Beasley’s psychological injury was as a result of his failure to “retain a benefit” in connection with his employment, being the challenge to his title and role. We reject this ground in any event. Mr Beasley in fact retained his title and his entitlements in relation to his practicing certificate. There was no significant change in his role or seniority. It was his perception that he was being undermined. Mr Beasley’s supervisors were attempting to engage Mr Beasley in a different method of delivery of the human resources function to the ANU that was less adversarial and more client focussed. The email of Mr Stewart of 3 March 2009 reflects that he spoke to Mr Beasley about leading some projects. This email did not suggest a lesser role.
The difficulty was that the change was not consistent with Mr Beasley’s view of what he wanted his role to be. His inclination was towards the more adversarial approach because his experience was primarily in the industrial relations dispute resolution area. Mr Beasley’s supervisors raised this with him but when Mr Beasley disputed this they did not proceed and the issues were not resolved - they were avoided. This meant that there was a little meaningful communication between Mr Beasley and his supervisors about the new objectives of the Human Resources Division and how Mr Beasley could contribute. The meeting to discuss Mr Beasley’s SOE for 2009/2010 would have been the perfect opportunity to discuss these issues but they were not discussed. The conflict continued from March 2009 and this apparently reinforced Mr Beasley’s view he was being undermined by Dr White.
In summary, there was no “failure to retain a benefit”, only a perception by Mr Beasley that this was the case but, more particularly, a view by Mr Beasley by August 2009 that his supervisors did not support him and wanted him to leave.
As we have concluded Mr Beasley’s injury was not as a result of administrative action, it is unnecessary to determine the question of whether this action was reasonable and conducted in a reasonable manner.
If we are incorrect on this aspect, we are nevertheless of the view that the decision of Comcare should be set aside because the meetings in August 2009 were not conducted in a reasonable manner.
What is “reasonable” will depend on the circumstances of each case but must be assessed objectively. Dr Campbell, Member, encapsulated the concept of reasonableness well in Re Georges and Telstra Corporation Limited [2009] AATA 731, when he noted at [22]:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound 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.
Having regard to this formulation and the circumstances of this case, we are of the view that the conduct of the meetings in late August 2009 and the use of the evaluation by Ms Kealley in connection with the meetings were not taken in a reasonable manner.
The Kealley evaluation should not have been presented to Mr Beasley during the meeting in the manner it was. It was critical of Mr Beasley and if Mr Stewart and Dr White wanted to discuss Mr Beasley’s approach to delivery of service, they should have approached it in a less confronting way. Dr White was very critical of Mr Beasley’s approach on the Kealley project but she did not raise those criticisms with him at the time, although she did raise it with others. Mr Beasley formed the view there was collaboration between Ms Kealley and Dr White about the evaluation survey. We found no evidence of this but given the history of conflict and the nature of Ms Kealley’s criticisms of Mr Beasley, a more transparent and direct process should have been utilised to raise issues of concern with Mr Beasley on this matter. Any criticism about his approach to the Kealley project would have been more appropriately managed as a separate process, not as a casual reference during his mid-year review. Mr Beasley was criticised for preparing a detailed response, in our view unfairly, and the issue had to be escalated to Mr Watts to ensure the evaluation would not remain on his file.
There is evidence Mr Beasley was resistive of change, was in conflict with Dr White (and indeed most of his supervisors from 2006) and did not accept Dr White’s authority. Mr Beasley could have been counselled in relation to a number of these matters but his supervisors chose not to do so. They sought to avoid confrontation but issues were repeatedly raised with him on an ad hoc basis over many months. This led to further conflict and increasing suspicion on Mr Beasley’s part. When matters came to a head on 27 August 2009, Mr Watts met with Mr Beasley on 28 August 2009 but there was no resolution and Mr Beasley was referred to the formal grievance procedure. By this stage, it was too late and a facilitated resolution, as suggested by Mr Beasley, may have been more appropriate given the circumstances. We accept that reasonable action does not have to be perfect but, as observed by Professor Creyke, in Re Wilson and Comcare [2010] AATA 396, it has to be “tolerable and fair”. In this case it was not.
CONCLUSION

In summary, we find that Mr Beasley did not suffer a psychological injury until after 31 August 2009, when he went off work and sought treatment, at which time he suffered a major depressive disorder. This disorder was work related. The meetings in late August 2009, including the presentation of the Kealley evaluation to Mr Beasley during the meeting of 20 August, contributed to a significant degree to Mr Beasley’s psychological injury. These matters were not “administrative action” and therefore the cause of Mr Beasley’s injury was not an excluded cause under ss 5A(1) or (2). As such, Mr Beasley is entitled to compensation under s 14 of the Act.
Having regard to these findings, the decision of Comcare should be set aside and substituted with the decision that Comcare is liable to pay compensation to Mr Beasley for major depressive disorder under s 14 of the Act.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern and Air Vice-Marshal (Dr) T K Austin AM, Member.

..........[sgd]..............................................................
Associate
Dated 3 July 2012

Dates of hearing 7 – 9 March 2012

Counsel for the Applicant Mr L T Grey

Solicitors for the Applicant Firths

Counsel for the Respondent Miss R M Henderson

Solicitors for the Respondent Sparke Helmore

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/4815
Re	BRADLEY BEASLEY
APPLICANT
And	COMCARE
RESPONDENT

Tribunal	Senior Member J L Redfern Air Vice-Marshal (Dr) T K Austin AM, Member
Date	3 July 2012
Place	Sydney

Dates of hearing	7 – 9 March 2012
Counsel for the Applicant	Mr L T Grey
Solicitors for the Applicant	Firths
Counsel for the Respondent	Miss R M Henderson
Solicitors for the Respondent	Sparke Helmore