Bryant and National Australia Bank Limited (Compensation)

Bryant and National Australia Bank Limited (Compensation) [2021] AATA 2769 (30 July 2021)
Division:GENERAL DIVISION
File Number: 2016/5538
Re:Craig Bryant
APPLICANT

AndNational Australia Bank Limited
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:30 July 2021
Place:Brisbane

I affirm the decision under review.
................[SGD]..................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for compensation for psychiatric disease under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – adjustment disorder with depressed and anxious mood – disease contributed to, to a significant degree, by employment – whether administrative action – whether reasonable administrative action – whether taken reasonably – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Arafura Seafood Products Pty Ltd v Landos (1988) 16 ALD 519; [1988] FCA 340
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; [2012] FCAFC 21
PDS Rural Products Ltd v Corthorn (1987) 19 IR 153
Repatriation Commission v Warren (2008) 167 FCR 511; [2008] FCAFC 64
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] 226 FCR 555
Thappa and Comcare [2013] AATA 629
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
30 July 2021
INTRODUCTION

Mr Bryant (“the applicant”) seeks compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for a mental health condition which arose out of, or in the course of, his employment with National Australia Bank Limited (“the respondent”). The respondent concedes that the condition of the applicant was contributed to, to a significant degree, by his employment. Later in these reasons I explain why I consider that this concession was properly made. I must therefore determine whether the condition was contributed to by “reasonable administrative action” in respect of the applicant’s employment, taken in a reasonable manner such that the applicant’s condition is not a compensable injury under the Act.[1]
PRIOR DETERMINATION
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1).
Original determination
On 3 December 2014, the applicant lodged a claim for compensation in relation to an adjustment disorder with depressed and anxious mood.[2] The claim form disclosed a date of injury of 26 August 2014.[3]
[2] Exhibit A, T-Documents, T14
[3] Exhibit A, T-Documents, T14, p. 54.
On 30 January 2015, a determination was made by the respondent which denied the claim for compensation on the basis that the injury of the applicant was excluded from compensation under section 5A of the Act. While the delegate was satisfied that there was a “causative relationship” between the applicant’s employment and the applicant’s injury, the delegate nevertheless determined that the respondent was not liable to pay compensation to the applicant because the injury resulted from reasonable administrative action taken in a reasonable manner.[4]
[4] Exhibit A, T-Documents, T18, p. 93.
On 1 April 2015, the applicant requested reconsideration of the determination made on 30 January 2015.[5]
[5] Exhibit A, T-Documents, T20.
On 18 August 2016, the respondent made a decision to affirm the determination dated 30 January 2015.[6]
[6] Exhibit A, T-Documents, T22.
Reviewable decision
The applicant has made an application to this Tribunal for the review of the decision of the respondent dated 18 August 2016 which affirmed the earlier determination to reject the claim of the applicant for compensation. This Tribunal has jurisdiction to review a “reviewable decision” pursuant to section 64(1) of the Act and section 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The phrase “reviewable decision” is defined under section 60(1) of the Act to include a decision made under section 62 of the Act. The Act provides that a decision made under section 62 of the Act in the reconsideration of a determination includes a decision affirming the determination.[7] The decision of the respondent dated 18 August 2016 which affirmed the earlier determination is a “reviewable decision” as defined under section 60(1) of the Act. The Tribunal can review the decision of the respondent dated 18 August 2016 as it affirmed the earlier determination.
[7] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62(5).
BACKGROUND
From 1 April 2003 to 23 December 2014, the applicant held the executive position of “Regional Executive Retail, Sunshine Coast” with the respondent. In that position he was responsible for the store managers of the respondent’s some 21 stores in the Sunshine Coast. Several employees under the applicant’s responsibility took issue with his conduct as a manager. Some of those employees raised their concerns about the applicant to the Financial Services Union (“FSU”).
On 10 July 2014, the FSU convened a meeting between the applicant’s line manager, Mr Dion Crowe, and four of the complainant employees. The complainant employees addressed their concerns about the applicant’s conduct to Mr Crowe. The applicant had been made aware of this meeting but had not been invited to attend the meeting.
On 18 July 2014, Mr Crowe attended the office where the applicant worked and had a meeting with him. In that meeting, Mr Crowe relayed to the applicant that allegations had been made against him on 10 July 2014, and Mr Crowe informed the applicant that a formal investigation would be undertaken in respect of those allegations.
Ms Alexandra Milliss was appointed as the lead investigator and Ms Lara Condorelli as the secondary investigator to investigate the complaints. Between 23 and 25 July 2014 the investigators travelled to Queensland to interview six employees who had complaints against the applicant. The investigators were unable to interview a seventh employee whose husband had recently passed away. Both investigators interviewed the applicant on 7 August 2014.
On 11 August 2014, the applicant was provided with a summary of the allegations, and he was invited to respond to these allegations. On 15 August 2014, the applicant provided his responses with supporting documentation.
On 26 August 2014, the applicant attended an “outcome meeting” with both investigators. The investigators gave the applicant a “show cause” letter which outlined the adverse findings of the investigation. Four adverse findings concerned allegations which had not previously been disclosed to the applicant. The “show cause” letter contained the statement that consideration was given to the termination of the applicant’s employment.
The applicant was asked to provide a response to the “show cause” letter by the close of business on 28 August 2014. The applicant applied for and was granted an extension of time to respond to the “show cause” letter. The applicant resigned from the respondent as from 23 December 2014 when the parties reached what the applicant referred to as a “mutually agreed outcome”
As a result of the meeting on 26 August 2014, the applicant suffered a mental health condition, namely an adjustment disorder with mixed anxiety and depressed mood.
ISSUES
The parties are agreed on the following issues:[8]
(a)That the respondent is a “licensee” under Part VIII of the Act;
(b)That the applicant was an “employee” for the purposes of the Act;
(c)That the applicant’s condition is an “ailment” within the meaning of section 4 of the Act;
(d)That the condition was contributed, to a significant degree, by the applicant’s employment by the respondent and, therefore, satisfies the definition of “disease” under section 5B of the Act;
[8] Respondent’s submissions – closing address, [6]; Submissions of the Applicant in Reply dated 16 January 2020, [8].
The issues to be determined in this matter are:
(a)Whether certain actions taken by the respondent regarding complaints made against the applicant in the course of his employment during the period June to August 2014 amounted to "reasonable administrative action" for the purposes of the Act and in particular section 5A;
(b)Whether such administrative action taken by the respondent was “in respect of the [applicant’s] employment”;
(c)Whether administrative action taken by the respondent in respect of the applicant’s employment was “taken in a reasonable manner”;
(d)Whether the respondent is liable to pay compensation in respect of the injury under section 14 of the Act.
LEGISLATION
Section 14(1) of the Act provides that the respondent is liable to pay compensation under the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A(1) of the Act provides that “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.
Section 5A(2) of the Act provides 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.
Section 5B(1) of the Act provides that “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.
Section 4 of the Act provides that an “ailment” means “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
Section 5B(2) of the Act provides that the following matters may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment:
(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.
The term “significant degree” is defined in section 5B(3) of the Act as meaning “a degree that is substantially more than material”.
EMPLOYEE
I find that the applicant was at relevant times an “employee” for the purposes of section 14 of the Act. The reconsideration decision of the respondent contains information which confirms that the applicant is an employee for the purposes of section 14 of the Act.
NOTICE OF INJURY
There is no issue that the applicant had provided appropriate notice of his injury under section 53 of the Act by the “Incident Report” which was lodged on 18 December 2014.[9]
[9] Exhibit A, T-Documents, T16.
CLAIMED DATE OF INJURY
In Repatriation Commission v Warren,[10] Logan J explained that the purpose of the statement of issues, facts and contentions is to fairly inform the issues to be considered at the hearing of the application.[11] In his statement of issues, facts and contentions, the applicant has nominated the injury as having occurred on the 26 August 2014;[12] that document was not later amended by the applicant and there is no contention that the applicant was injured on any earlier date. Later in these reasons, I explain why I consider that there is no cogent evidence that the injury of the applicant occurred prior to 26 August 2014.
[10] (2008) 167 FCR 511.
[11] (2008) 167 FCR 511, p. 532.
[12] Applicant’s Statement of Issues, Facts and Contentions, pp. 21, 25.
THE HEARING
The application was heard over a nine-day period.
The applicant’s oral evidence
The applicant gave oral evidence on 6 February 2019.
The applicant confirmed that he had given a written statement dated 8 December 2017 and that the contents of the statement are his testimony in these proceedings.[13]
[13] Exhibit B.
Under cross-examination, the applicant agreed that, being a senior manager with the respondent, he would have been “familiar … at all times with the code of conduct”. The applicant said that this was a requirement for of his work appraisal.[14]
[14] Transcript, p. 24, line 45 to p. 25 line 4.
The applicant was asked about the group meeting on 10 July 2014. It was put to the applicant, and the applicant accepted, that he called Mr Crowe on 10 July 2014 once he had learned from Mr Johnston that the group meeting was going to take place.[15] The applicant denied remembering that Mr Crowe had told him that he should not entertain conversations about who might be going to the group meeting.[16] The applicant gave evidence that he asked Mr Crowe what the group meeting was about and asked “should I be there as a chance to give my side of the story if people are complaining?”[17]
[15] Transcript, p. 27.
[16] Transcript, p. 28, lines 20-22.
[17] Transcript, p. 28, lines 27-28.
The applicant gave evidence that he was “taken back” when he learned of the group meeting because:
normally in that situation if there is something that needs to be - complaints, it would normally be handled in a process where people would formalise their complaint on a written basis so that it can be responded to that way. I’ve - I’d never known of a group meeting with group people together, especially without sometimes even having the person they’re talking about there to probably tell their side of the story.[18]
[18] Transcript, p. 29, lines 36-43.
The applicant gave evidence about a group of employees who were referred to as “the ring of fire”. The applicant stated, “that was a common name used through the Queensland leadership team” and that they had:
an area up around Bundaberg, Maryborough and Hervey Bay, a regional area that you had some very strong union delegates up there, and these people were always hard around any process changes, hard to deal with; they’d always complained about people doing the role, the person who did the role previous to me … they complained numerous times about her, and whenever we would have a half yearly performance review of all our managers, it constantly came up around these people being lower performers but always being very hard to deal with.[19]
The applicant gave evidence that he knew Mr Crowe to have himself used the term “ring of fire” in reference to that group of employees.[20]
[19] Transcript, p. 28, lines 30-41.
[20] Transcript, p. 28, line 3.
The applicant accepted under cross-examination that he had a telephone conversation with Mr Crowe in which he referred to certain employees who were in attendance at the group meeting by name and said words to the effect of, “that person’s just a whinger” or “an under performer”.[21] However, the applicant qualified this by stating that the conversation in which he said these things happened on 18 July 2014 when Mr Crowe met with him to tell him the outcome of the group meeting which took place on 10 July 2014.[22]
[21] Transcript, p. 29, lines 15-18.
[22] Transcript, p. 29, lines 17-24.
The applicant was asked under cross-examination whether, on 17 July 2014, Mr Crowe had contacted him by mobile phone at about 6:30 pm. The applicant gave evidence that at that time he was travelling home from a conference in Brisbane and that he didn’t pick up Mr Crowe’s call. The applicant gave evidence that he only became aware of the voicemail message left by Mr Crowe after his meeting with Mr Crowe on 18 July 2014.[23] The applicant asserted that he had no warning that Mr Crowe would be visiting the Carnaby Street office to meet with him on 18 July 2014.[24]
[23] Transcript, p. 30, lines 17-38.
[24] Transcript, p. 30, lines 45-47.
The applicant gave evidence that at the meeting at the Carnaby Street office on 18 July 2014, Mr Crowe informed him “that employees had made allegations of bullying and micromanagement and similar” against him. The applicant gave evidence that, while Mr Crowe had not specified which employees had made the complaints, Mr Crowe did tell him that the complaints came from employees in “the branches up north”.[25]
[25] Transcript, p. 31, lines 18-27.
The applicant gave evidence that, at the meeting on 18 July 2014, Mr Crowe had told him that he would get a chance to respond to the allegations that were made against him within the next couple of weeks.[26] The applicant gave evidence that Mr Crowe “didn’t get into a lot of detail” about the complaints and that “it was all explained that he had been to the meeting and the feedback was that some people had some complaints, and the next step would be you would have to get a formal process and involve workplace relations to interview.”[27]
[26] Transcript, p 31, lines 33-39; p. 32, lines 1-6.
[27] Transcript, p. 31, lines 15-19.
The applicant gave evidence that, after the meeting with Mr Crowe on 18 July 2014, he “had probably a rough idea” of how many employees had made complaints against him: “probably four. Three to four.” The applicant stated that he knew “not a lot of other detail” about the complaints. The applicant stated:
I just knew that some people that I had had dealings with before - Dion hadn’t been involved with some of these, over long-term complaints, of people that were even there before me.[28]
[28] Transcript, p. 32, lines 21-25.
The applicant gave evidence that he was “a bit concerned that [the complainants] had already had a meeting in a group with Dion”[29] but that he was “comforted that the investigators were coming to speak to me so I could come and tell my side of the story”.[30] The applicant spoke of “that anxiety and anxiousness it puts up that you don’t get a clear understanding of how long it is going to take and what is the next step.”[31]
[29] Transcript, p. 32, lines 35-36.
[30] Transcript, p. 32, lines 39-41.
[31] Transcript, p. 33, lines 16-18.
The applicant rejected the assertion that Mr Crowe had told him that, depending upon what allegations were substantiated, the investigation may result in the termination of his employment.[32] The applicant stated that:
No, that was never said to me at all. We never got into anything about outcomes, and Mr Crowe only simply set up the next stage, which was the interview with workplace relations.
[32] Transcript, p. 33, lines 43-47.
The applicant gave evidence that on the morning of the meeting with Mr Crowe at the Carnaby Street office on 18 July 2014, Mr Crowe offered him assistance through the “Employee Assistance Program” (“EAP”).[33] The applicant stated: “[Mr Crowe] gave me a business card for the EAP local contact.”[34] The applicant stated that the “EAP local contact” was Ms Lisa Trotter, psychologist.[35]
[33] Transcript, p. 34, line 12.
[34] Transcript, p. 34, line 13.
[35] Transcript, p. 34, lines 16-18.

The applicant gave evidence that he did not ask to have a support person at the meeting on that morning because he “wasn’t given any prior notice” that Mr Crowe would be meeting him.[36] The applicant gave evidence that he arrived at work at about 9:00 am, that he received a phone call from Mr Crowe, and that the phone conversation was as follows:
Mr Crowe had said, “Badger, where are you?” I said, “I’m at my office, I’m at my desk, D”, he said, “I’m downstairs waiting.” I said, “I didn’t know we had a meeting.” “Well, can you come down and see me. Don’t say anything, just come down.” And so I went down to see him.[37]
[36] Transcript, p. 34, lines 23-25; 36-37.
[37] Transcript, p. 34, lines 27-32.
The applicant denied that during that meeting Mr Crowe had said to him that he and Mr Wesley Travers were available to give consultation and support to him.[38] The applicant insisted that, while he could not say that Mr Crowe was not supportive, the conversation between them was simply about, “This is what has happened. We’ve heard some allegations and now we’re going to get workplace relations to handle it.”[39]
[38] Transcript, p. 34, lines 39-41.
[39] Transcript, p. 35, lines 2-3.
The applicant gave evidence that he remained in his role with the respondent when the respondent commenced the investigation in to the complaints against him.[40] It was put to the applicant that had he been suspended from his role, or been sent on special leave at the time, it might have damaged his reputation within the respondent’s organisation. The applicant did not accept that it would have damaged his reputation. He went on to explain:
And I say that because already, with what was happening, there was - the rumour mill had started that people had been complaining. Already the language was there had been a town meeting. The voice was out there around this process. So I don’t think it could have damaged it any further by being suspended. If anything I feel it would have been really helpful to prepare my response without having the pressure and the angst of still having to do my job.[41]
[40] Transcript, p. 35, lines 20-22.
[41] Transcript, p. 35, lines 31-37.
The applicant gave evidence that other people in the organisation were aware of the investigation into the complaints made against him.[42]
[42] Transcript, p. 35, lines 39-42.
The applicant had agreed that Mr Crowe had asked him to keep confidential the conversation between them at the Carnaby Street office on 18 July 2014.[43] The applicant conceded that he later told Mr Michael Johnston, Ms Colleen Clark and Mr Peter Black that he was being investigated by the respondent.[44]
[43] Transcript, p. 34, line 1.
[44] Transcript, p. 36, lines 21-32.
The applicant gave evidence that it was his view that had the respondent suspended his role, the respondent would have been:
trying to make sure that my role and my reputation was not adversely affected by having to stay in the role and also that it was treating it seriously as far as the investigation, you know, because most previous times people have moved out while it's done.[45]
[45] Transcript, p. 37, lines 7-11.
The applicant gave evidence that Mr Crowe wanted him to continue in his role, but that Mr Crowe said to him, “I don't want you going out to those branches,” those branches being Bundaberg, Hervey Bay and Maryborough. The applicant gave evidence that he also asserted that Mr Crowe wanted him to “try and limit any decisions [he] made on those branches as well.”[46]
[46] Transcript, p. 37, lines 19-24.
The applicant held to his assertion that he had raised concerns about continuing in his role at the Carnaby Street office through-out the investigation.[47] The applicant held to this assertion despite conceding that none of the employees who had made complaints worked at the Carnaby Street office.[48] The applicant gave evidence that he stressed to Mr Crowe twice that it was not normal practice for him to continue in the role while under investigation.[49]
[47] Transcript, p. 37, lines 33-34.
[48] Transcript, p. 37, lines 36-44.
[49] Transcript, p. 37, lines 46-47 to p. 38, lines 1-5.
The applicant gave evidence that he did not tell Workplace Relations that he wanted to be suspended from his role and that:
I didn't have any dealings with [Workplace Relations] around it and again, from - to put some context, you've got your boss that's in charge of your career, they're talking to you and directing you to stay at work because in his words - exact words were - "You're my best performing market in Queensland and you know the state is doing it tough and I need your numbers."[50]
[50] Transcript, p. 38, lines 10-14.
The applicant gave evidence that, at a later date, he had a conversation with Mr Crowe about:
the trouble and angst I was having trying to manage and deal with these people on a daily basis that had made these complaints and I just felt it was a terrible situation he had put us into.[51]
The applicant gave evidence that he did not put his concerns about not being suspended from his role into an email to Mr Crowe because he did not think that his concern would be entertained.[52]
[51] Transcript, p. 38, lines 22-25.
[52] Transcript, p. 38, lines 27-30.
The applicant gave evidence that he had received training in how to deal with complaints about staff, and that he was instructed that where a complaint is made against a member of staff, "You'd need to take the person out of the problem so that the problem can be identified correctly."[53]
[53] Transcript, p. 45, lines 35-36.
The applicant gave evidence as to why he accessed the assistance offered under the EAP only once:
I went and saw Lisa Trotter, I think it was 22 July and that was just for a half hour first session but that was a very poor experience around confidentiality in that I came back to the office and a few days later I had Michael Johnston advise me that he had also been referred to Lisa Trotter and went and saw her - sorry, he rang her to book his appointment and she said to him, "Oh, so you're up for the same bullying and harassment that Craig Bryant is up for?" So that just gave me warning bells. I thought it was very unprofessional for her as a psychologist to be telling Michael when it's supposed to be a confidential case about that. So I was planned for my next meeting with her was booked for 6 August and I immediately cancelled it because I just had no trust in the EAP system with using her.[54]
[54] Transcript, p. 46, lines 43-47 to p. 47, lines 1-7.
The applicant gave accepted that he knew that “if someone had been bullied or harassed, you know, treated employees other than with dignity, fairness or respect that they could be disciplined for it” and that “such discipline could include dismissal from employment”.[55]
[55] Transcript, p. 50, lines 4-11.
The applicant was referred to the Code of Conduct[56] which applied to him at all times during his employment with the respondent.[57] The applicant accepted that the range or disciplinary action for a breach of the Code of Conduct included the termination of an employee’s employment.[58] It was put to the applicant that if the allegations against him were substantiated, then he could be dismissed. The applicant answered: “Possibly but I wasn't ever given any advice around the severity of that until my outcome conversation on the 26th of the 8th.”[59]
[56] Agreed Bundle, volume E, tab 3.
[57] Transcript, p. 50, lines 21-22.
[58] Transcript, p. 50, lines 33-39.
[59] Transcript, p. 51, lines 10-13.
The applicant was also taken to the confidentiality term of the Conduct of Interview Protocol.[60] The applicant accepted that if he breached the confidentiality of the investigation that that could lead to his dismissal.[61] The applicant gave evidence that he and Mr Black met with his wife and told her that he was under investigation, but that he didn’t tell his wife all the details of the investigation. The applicant gave evidence that when he spoke to his wife about the investigation he was emotional and in tears about it.[62]
[60] Agreed Bundle, volume F, tab 24.
[61] Transcript, p. 51, lines 4-8.
[62] Transcript, p. 51, lines 20-27.
The applicant was taken to an email he sent to Ms Milliss on 6 August 2014.[63] The applicant accepted that at time that he sent the email on 6 August 2014, he had received the letter from Ms Milliss dated 30 July 2014 which sets out a summary of allegations against him.[64] The applicant accepted that in his email of 6 August 2014, he did not ask Ms Milliss to provide further particularity about the allegations stated in her letter of 30 July 2014.[65] The applicant further gave evidence that in that email he did not ask for any time off work to prepare his response to the allegations or to prepare for the interview.[66] The applicant asserted that:
I wouldn't have in my response because we hadn't had the interview but I didn't ask her about the interview because I didn't know anything or what was coming up and it was the next day too, I think, so.[67]
[63] Agreed Bundle, volume F, tab 33.
[64] Agreed Bundle, volume F, tab 28.
[65] Transcript, p. 52, lines 22-24.
[66] Transcript, p. 52, lines 30-31.
[67] Transcript, p. 52, lines 31-34.
The applicant gave evidence that at the at time he understood the nature of the allegations against him,[68] although he stated that:
I also during the interview asked for more detail but was never given any notes. [Ms Millis], when she'd ask the questions, would ask in reference to email or we've got this, but I was provided no supporting information to read over.[69]
[68] Transcript, p. 52, lines 40-42.
[69] Transcript, p. 52, lines 44 to p. 53, lines 1-2.
The applicant stated that he wasn’t aware of what questions would be asked of him at the interview on 7 August 2014 and that he “expected that at the interview [he would] be provided with things and answering around emails or things [he had] done.”[70]
[70] Transcript, p. 53, lines 6-8.
The applicant gave evidence that he could not recall being told that:
depending on the findings [of the investigation], the consequences [of his conduct] could range from no action against [the applicant] through to termination of [the applicant’s] employment.
He stated:
I can't remember that being covered. I remember [Ms Milliss] talking about she would then present her findings to Dion Crowe as my people leader and then work through an outcome.[71]
[71] Transcript, p. 53, lines 29-33.
The applicant gave evidence that he did not, at any stage in the course of the interview on 7 August 2014, suggest to Ms Milliss that he “did not want to go ahead further with the interview”.[72]
[72] Transcript, p. 54, lines 16-18.
The applicant gave evidence that, during the interview on 7 August 2014, he did not request any breaks because, “I really just wanted to get through it.”[73] The applicant said, with regard to how he felt during the interview:
It wasn't the greatest thing to go through. It was challenging to try and recount things from seven years ago but also to be on the spot to answer specifics. I felt I did really well to be able to answer with names and a lot of specific information and to questions from a variety of - a variety of areas, four or five people, and without any supporting evidence to read through and us what it was coming from but it was just good to get it done.[74]
The applicant stated:
I was feeling some definite anxiety and anguish about the whole process of these people talking behind my back and being happily able to discuss what was planned. That was upsetting to me.[75]
He further gave evidence that during the interview he was not teary or trembling, but that he was nervous and anxious.[76]
[73] Transcript, p. 55, lines 25-26.
[74] Transcript, p. 56, lines 1-6.
[75] Transcript, p. 56, lines 9-11.
[76] Transcript, p. 56, lines 38-41.
The applicant agreed that at the time of the interview on 7 August 2014 he had not been diagnosed with any psychological injury.[77]
[77] Transcript, p. 56, lines 8, 13-17.
The applicant gave evidence that at the conclusion of the interview on 7 August 2014 he was told that he would be given the investigators’ notes of the interview and that he would have an opportunity to make any changes to the notes that he thought necessary, and also that he could “supply any supporting documents, like emails or things that add - for [the investigators] to consider”. The applicant asserted that at the conclusion of the interview he was not reminded of the EAP[78] but that he was reminded of the need for confidentiality about the investigations.[79]
[78] Transcript, p. 57, lines 13-15.
[79] Transcript, p. 57, lines 31-32.
The applicant gave evidence that at the end of the interview on 7 August 2014 he had “significant verbal detail” of the allegations that were made against him, but that he “had nothing in writing”.[80]
[80] Transcript, p. 58, line 19.
The applicant rejected the suggestion that, on 7 August 2014, Mr Crowe had phoned him following the interview to check on his wellbeing.[81]
[81] Transcript, p. 74, lines 12-13.
The applicant gave evidence that, in response to the investigators’ request on 11 August 2014 that he provide any comments on or amendments to the record of the interview on 7 August 2014, he requested an extension of time to provide his comments or amendments.[82] The applicant agreed that the investigators quickly granted the extension of time.[83] The applicant understood that, having been granted an extension of time to provide his response, it was open to him to request a further extension of time.[84]
[82] Agreed Bundle, volume F, tab 34.
[83] Transcript, p. 60, lines 39-40.
[84] Transcript, p. 61, lines 5-13.
The applicant gave evidence that on 15 August 2014 (being one day after the due date) he gave his response to the record of the interview, and that he deleted (using “tracked changes”) some parts of the record and added to the text of the record.[85]
[85] Transcript, p. 61, lines 25-33.
The applicant gave evidence about the email he sent to the investigators on 15 August 2014 in which he attached his response to the record of the interview on 7 August 2014.[86] In that email, the applicant listed several grievances about the process of the respondent investigating the allegations against him. The applicant agreed that his reference to “the noise by a few here fuelled as they continue to talk with others” meant rumours or speculation.[87] The applicant agreed that among the grievances expressed in his email of 15 August 2014 there was no mention of having insufficient time to respond to the allegations.[88] The applicant accepted that, although he had requested from the investigators documentary evidence concerning the allegations, he did not make such a request in his email of 15 August 2014.[89]
[86] Agreed Bundle, volume F, tab 1.
[87] Transcript, p. 62, line 4.
[88] Transcript, p. 62, lines 15-19.
[89] Transcript, p. 62, lines 32-42.
The applicant gave evidence about a conversation he had with Mr Crowe on 15 August 2014 at a “target setting meeting” in Brisbane. The applicant gave evidence that he instigated a conversation with Mr Crowe in which he told him “I just want to express that this is really affecting me. I need to know what's going on?"[90] The applicant said, “I just felt like I wasn't getting answered or listened to in my conversation with [Mr Crowe].”[91] The applicant gave evidence that during that conversation he became tearful and emotionally upset.[92]
[90] Transcript, p. 78, lines 43-44.
[91] Transcript, p. 78, lines 39-40.
[92] Transcript, p. 81, lines 4-5.
The applicant was asked whether, at that time, prior to receiving the letter from the investigators on 26 August 2014, he felt that he had received a fair hearing and had a fair go at defending himself. The applicant answered: “Probably … but still … yes, probably.”[93]
[93] Transcript, p. 63, line 46.
The applicant gave evidence about the “outcome meeting” on 26 August 2014. He stated that when additional allegations were presented to him at that meeting, “it was a shock. I knew nothing about the allegations,” and that “as we read though the letter … it all became a fair bit too much.”[94]
[94] Transcript, p. 67, lines 8-11.
In the letter, the investigators gave the applicant two days to provide “any other information you believe is relevant.”[95] The applicant requested, and was granted, an extension until 12 September 2014 to respond to the allegations in the letter. The applicant gave evidence as to the reasons for requesting that extension of time:
I was quite distressed at the end of the meeting. When I left the room, I went to see my GP and then my solicitor, and was given some advice from them around this, and requested an extension to take time to really consider my response, considering this was the first I’d really heard about the severity of this. … I think my solicitor had requested me to ask for that because I had been unwell and I had to provide a doctor’s certificate to [Ms Milliss].[96]
[95] Agreed Bundle, volume F, tab 39.
[96] Transcript, p. 68, lines 12-20
Under cross-examination, the applicant accepted that he understood the extension of time to be an opportunity to provide any further information that he thought was relevant to the new allegations. He stated: “I took that the time, the extra time, was really to look at also answering these new alleged allegations that I hadn’t been aware of.”[97]
[97] Transcript, p. 68, lines 26-33.
The applicant gave evidence that in December of 2014, while on holidays with his family at Hastings Point, he met with Mr Marcus Geeraerts and Mr Wayne Tawse for lunch at Kingscliff. The applicant gave evidence that he was in tears and became emotional and Mr Tawse may have been “a little bit teary” when the three of them spoke about the conduct of the investigation.[98]
Witnesses called by the applicant
[98] Transcript, p. 87, lines 13-33.
Mr Peter Black
Mr Peter Black was called by the applicant to give evidence before the Tribunal on 7 February 2019.
Mr Black confirmed that he had given a written statement dated 6 December 2017 and that the contents of the statement are true and accurate to the best of his belief.[99]
[99] Transcript, p. 113, lines 44-45; Exhibit F.
Mr Black stated that he was a senior credit manager with the respondent.[100]
[100] Transcript, p. 112, line 45.
Mr Black agreed under cross-examination that his relationship with the applicant is a personal relationship and that he is still friends with the applicant.[101] Mr Black gave evidence that he contacts the applicant “on a regular basis to make sure he’s okay” and that he and the applicant have had “had some pretty dark times” together.[102]
[101] Transcript, p. 114, lines 30-34.
[102] Transcript, p. 122, lines 4-6.
Mr Black was present on 7 August 2014 when the investigators, Ms Milliss and Ms Condorelli, interviewed the applicant. Mr Black attended the interview to support the applicant.[103]
[103] Exhibit F, p. 4, [32].
Mr Black gave evidence that he "strongly disagreed" with the suggestion that, at the interview on 7 August 2014, one of the investigators mentioned the possibility of there being disciplinary action against the applicant.[104] Mr Black disagreed with the suggestion that Ms Milliss said in the interview that the investigation may lead to the possible termination of the applicant’s employment.[105]
[104] Transcript, p. 117, lines 22-31.
[105] Transcript, p. 118, lines 5-8.
Mr Black’s evidence was that during the interview Ms Condorelli said to the applicant words to the effect of, “there is a constant theme here” and, “regardless of the outcome, there will be learnings in this for you.”[106]
[106] Transcript, p. 120, lines 6-12; Exhibit F, p. 5, [40].
Mr Black was taken[107] to his written statement where he stated, at paragraph 41:
as the questioning progressed, Ms Milliss stopped prefacing the matters the subject of the allegations with the words "it is alleged that" and instead began making assertions with the implicit overtone that [the applicant] had taken certain actions or engaged in certain conduct.[108]
Mr Black gave evidence that he took this to mean that Ms Milliss had prejudged the applicant with respect to the allegations.[109]
[107] Transcript, p. 120, line 25.
[108] Exhibit F, p. 5, [41].
[109] Transcript, p. 120, line 37.

Mr Black gave evidence that the applicant had not been offered EAP.[110] (Later in these reasons I state why I am satisfied that the applicant was provided with adequate EAP support when he was interviewed on 7 August 2014.)
[110] Transcript, p. 122, line 45.
Mr Black gave evidence that “the biggest thing" he remembered of the interview on 7 August 2014 was that “it was quite clear” to him that the investigators “didn’t even know what [the applicant] did for a living.” Mr Black made much of this point:
Counsel for the applicant:
What aspects of [the question and answer process] that you were observing gave you the impression that [the investigators] didn’t understand what [the applicant] did for a living?
Mr Black:
Because we – at [the respondent] we use acronyms all the time. So [the applicant] was saying, like, my BA or my PA or whatever and they would always say, ‘What is that? What does that person do? How does that person work?’ Another example is that when they were talking about the employee at Maryborough and part of the line of questioning was that he took offence to the fact that [the applicant] and Michael on the way to Bundaberg just dropped into Maryborough branch. So they didn’t understand that as area manager, [the applicant] is entitled to actually drop into any branch because he’s the boss and he was responsible for that store. So again, I didn’t understand why they wouldn’t realise that that was the case.[111]
[111] Transcript, p. 124.
Mr Black gave evidence that he had received training in “equal opportunity employment” and that, “as part of that training there was how to identify what bullying is and then also what possible actions you’d take and also possible consequences.”[112] Mr Black gave evidence that a part of that training was “the idea of the alleged bully being removed from the workplace” and that, “it wasn’t only to protect the person who made the allegations, it’s also to protect the alleged bully.”[113]
[112] Transcript, p. 125, lines 17-25.
[113] Transcript, p. 125, lines 27-30.
Ms Colleen Clark
Ms Colleen Clark was called by the applicant to give evidence on 7 February 2019.
Ms Clark confirmed that she had given a written statement dated 5 December 2018 and that the contents of the statement are true and accurate to the best of her belief.[114]
[114] Transcript, pp. 129-130; Exhibit G.
Ms Clark gave evidence that her job title is “regional executive support” and that she worked as the applicant’s regional executive support for several years.[115] In her statement, Ms Clark states that she also worked closely with Mr Michael Johnston.[116]
[115] Transcript, p. 129, lines 9-17.
[116] Exhibit G, [18].
Ms Clark gave evidence that when investigator Ms Condorelli contacted her to arrange an interview with her, she raised the question of having a support person accompany her to the interview, and that Ms Condorelli said that a support person would be unnecessary and tried to dissuade her from bringing a support person to the interview.[117] Ms Clark gave evidence that she thought there was no one with whom she could raise her concern about what Ms Condorelli had said to her. She said that in the end she brought a support person with her and “went with the process.”[118]
[117] Transcript, p. 132, lines 23-45.
[118] Transcript, p. 133, lines 16-22.
Ms Clark gave evidence that when the investigators interviewed her, “they were very aggressive in their manner and tone towards me as if I was on trial for doing something”.[119]
[119] Transcript, p. 140, lines 46-47.
Ms Clark gave evidence that Mr Crowe did not tell her about the availability of assistance for her under the EAP.[120] However, under cross-examination, she was taken to annexure B of her statement, which is a revised summary of her interview with the investigators, where she speaks of Mr Crowe advising her that she could call someone for assistance under the EAP.[121] Under cross-examination Ms Clark was also asked to comment on the inconsistency of her inconsistent statements. She responded:
I can't comment about that. I don't know. Look, at the time he may have said it and I've written it in there. I can't remember that now, so. … To be honest, when I completed this statement in red I was sitting at my desk, still working, and had two days in which to prepare it, to get back to them. And at the same time Craig Bryant 40 and Michael Johnston were sitting beside me. So at no time was I, you know, given time to step away and do this. It was like it needed to be done, and every keystroke that you did was checked on their computer. So in hindsight maybe I wrote that incorrectly. I can't comment on that four years ago.[122]
[120] Transcript, p. 132, line 7.
[121] Transcript, p. 133, lines 24-35.
[122] Transcript, p. 134, lines 33-44.
Ms Rayeleene Elston
Ms Rayeleene Elston was called by the applicant to give evidence on 8 February 2019.
Ms Elston confirmed that she had given a written statement dated 19 September 2018 and that the contents of the statement are true and accurate to the best of her belief.[123]
[123] Transcript, p. 161, lines 24-25; Exhibit H.
Ms Elston gave evidence that she was a regional business executive who worked as part of the Queensland State Leadership Team of the respondent’s business banking division, having worked for the respondent for some 30 years.[124]
[124] Transcript, p. 159.
Ms Elston gave evidence that typically when a People Leader with the respondent is being investigated for bullying or harassment, the People Leader would be asked “to take some time away so that they can concentrate and look after what they need to in order to prepare a response”.[125] However, Ms Elston stated that she is not sure that the online training modules in 2014 would have covered the circumstances where a People Leader would be suspended from employment.[126]
[125] Transcript, p. 163, lines 43-46.
[126] Transcript, p. 163, lines 24-25.
The respondent in its submissions put emphasis on Ms Elston’s regard for the expertise of the Workplace Relations section of the respondent. Ms Elston gave evidence that in her role in managing workplace investigations she took advice from Workplace Relations: “There was a point in time where I would be on the phone to them quite often. I found them to be very, very helpful.”[127] She further stated: “I was a huge advocate for getting on the front foot and engaging with workplace relations.”[128]
[127] Transcript, p. 162, lines 23-24.
[128] Transcript, p. 162, lines 28-29.
Ms Elston further gave evidence that in cases of complaints of bullying, harassment or sexual harassment she, being “an overly cautious leader,” would immediately notify the Workplace Relations team in order for a case manager to be assigned.[129] She further stated: “We’re not experts and we need support”.[130]
[129] Transcript, p. 165, lines 5-10.
[130] Transcript, p. 164, line 14.
Ms Elston gave an example of an investigation conducted by Workplace Relations in which the investigators provided a written report and a decision as to whether allegations were substantiated. Ms Elston gave evidence that in that case she recommended that the employee be dismissed.[131]
[131] Transcript, p. 166, lines 21-37.
Ms Elston gave evidence that her view was that Ms Milliss, as an investigator, was not neutral or objective in investigating the allegations against the applicant.[132]
[132] Transcript, p. 168, lines 32-33.
Ms Elston gave evidence that had called Mr Crowe and conveyed to him that Mr Johnston had told her that he understood that the applicant might have been experiencing suicidal thoughts.[133] In giving evidence. Ms Elston recounted her conversation with Mr Johnston:
I actually said to him, ‘Have you spoken with Craig?’ He said, ‘Yes, I have.’ And I said, ‘How is he?’ He said, ‘He’s not good. He’s been having some dark thoughts.’ And I said, ‘What do you mean by that, Michael?’ He said, ‘I think he’s suicidal.’ And I said, ‘Okay. Let’s really just be – let’s be assured that Craig will be well-supported. Let’s get all your things sorted and let’s get you under control.’[134]
[133] Transcript, p. 171, lines 24-30.
[134] Transcript, p. 173, lines 15-21.
In her statement, Ms Elston opined, in reference to the “show cause” letter of 26 August 2014, that:
Under no circumstances would I consider that it was fair or reasonable or compliant with NAB policy and practice for any 'additional allegations' to simply be 'rolled' into an outcome notification process.[135]
Under re-examination by counsel for the applicant, Ms Elston was asked whether it would be the correct process in these circumstances for the investigator go back to the employee with the further allegations first before delivering a notice to “show cause”. Ms Elston answered:
If there’s an allegation of this and I’ve replied to that, and then there’s another one with an outcome, I don’t see that that’s fair, I would suggest that you would want time to go and prepare a response to an additional allegation.[136]
[135] Exhibit H, [34].
[136] Transcript, p. 174, lines 23-25.
The respondent has submitted that the above answer given by Ms Elston was the product of the applicant’s counsel leading the applicant’s own witness, and that it thereby attracts less weight.[137]
[137] Respondent's submissions – closing address dated 13 November 2019, [225].
Ms Elston gave evidence that in serious matters involving bullying that it is standard practice that the accused person would be handed a comprehensive letter outlining the complaint.[138] Ms Elston agreed under re-examination by counsel for the applicant that the comprehensive letter outlining the complaint would give times, dates and places of the allegations under investigation.[139] She agreed that an employee under investigation would be given “actual evidence of their alleged egregious behaviour” and would be told “the actual policies that they had breached”.[140]
[138] Transcript, p. 165, lines 11-14.
[139] Transcript, p. 175, line 13.
[140] Transcript, p. 175, lines 24-28.
Ms Elston gave evidence gave evidence about the documentation she would make in a case where a complainant was too distraught or upset to put a complaint in writing:
Up until recently I had every single file note that I ever prepared in any of those matters, and to the extent where I would do my handwriting, and I’m messy when I’m writing, and then I would go and type it into a proper file note, and I would actually attach my rough notes to the file note.[141]
[141] Transcript, p. 176, lines 11-15.
Mr Marcus Geeraerts
Mr Marcus Geeraerts was called by the applicant to give evidence on 8 February 2019.
Mr Geeraerts confirmed that he had given a written statement dated 20 September 2017 and that the contents of the statement are true and accurate to the best of his belief.[142]
[142] Transcript, p. 180, lines 22-23; Exhibit I.
Mr Geeraerts gave evidence that he was a regional executive retail with the Brisbane CBD until June 2015.[143] Mr Geeraerts stated that he knew the applicant since “about 2007”.[144]
[143] Transcript, p. 178, lines 43-44.
[144] Transcript, p. 179, line 22.
Mr Geeraerts was asked whether, based on his knowledge of the respondent’s complaints procedure, a formal complaint of bullying or harassment could be investigated if the complaint was only made orally. Mr Geeraerts answered:
The usual practice that we had in our retail banking division was if there was a complaint made against an alleged person the usual case was, particularly if it was a people leader to staff member directly, we would normally try and remove the person who was alleged to avert a confrontation (indistinct) was a people leader people person to actually investigate the alleged - and normally in those cases we’d put them aside, whether it was just on paid leave for a period of time, and then what we’d do is look through the allegations there were, and give everyone an opportunity to, you know, review all the evidence we have, and if there was a case to be, it would be followed through, and if there wasn’t the person would be reinstated.
Mr Geeraerts agreed under cross-examination that whether an employee who was under investigation would be stood down was case dependent and that some employees have been stepped aside or suspended.[145]
[145] Transcript, p. 181, lines 16-17.
Mr Geeraerts agreed under cross-examination that he had not “undertaken any training within Workplace Relations by their NAB in-house lawyer or someone similar”.[146]
[146] Transcript, p. 181, lines 24-26.
Mr Geeraerts confirmed under re-examination by counsel for the applicant that whether an employee who was under investigation would be stood down depends on the seriousness of the allegations, and that “the more serious the allegations the higher the likelihood that the person would be put on paid leave”.[147]
[147] Transcript, p. 181, lines 34-42.
Mr Daniel Smith
Mr Daniel Smith was called by the applicant to give evidence on 8 February 2019.
Mr Smith confirmed that he had given a written statement dated 30 November 2017 and that the contents of the statement are true and accurate to the best of his belief.[148]
[148] Transcript, p. 185, lines 5-11; Exhibit J.
Mr Smith gave evidence about the “broad array of different roles” he held with the respondent up until 2011.[149] Among the roles he held, Mr Smith was a “regional executive retail in Victoria”.
[149] Transcript, p. 183, line 24, lines 30-36.
Under cross-examination Mr Smith was asked about the position of “human resource advisor” he held in 2000. Mr Smith confirmed that in that position he would, among other things, “manage human resource files or complaints”.[150]
[150] Transcript, p. 186, lines 15-26.
Mr Smith gave evidence that the question of whether an employee under investigation would be removed from the workplace is done on a case by case basis, but that: “if they are serious issues such as bullying, harassment and the like, the typical course of action in my experience is that the person would be removed.”[151]
[151] Transcript, p. 188, lines 20-22.
Under re-examination by counsel for the applicant, Mr Smith was shown the email of Ms Milliss sent to the applicant on 30 July 2014.[152] That email provided a summary of allegations against the applicant. Mr Smith was asked:
If the evidence in this case is that the only particulars of the allegations given to the [the applicant] before the record of interview is what is contained in those bullet points [the summary of allegations], to your mind, is that sufficient particulars for him to be able to go into the meeting knowing what he is likely to confront? [153]
Mr Smith answered: “No, it’s not.”[154]
[152] Agreed Bundle, volume F, tab 28.
[153] Transcript, p. 190, lines 1-4.
[154] Transcript, p. 190, line 5.
Mr Smith also agreed under re-examination by counsel for the applicant that the relevant People Leader is involved in the question of what penalty or punishment would be an appropriate to the employee’s misconduct. It was put to Mr Smith in the following terms:
Counsel for the applicant:
it’s important, is it not, the people leader must be satisfied that the proposed punishment fits the crime?
Mr Smith:
Absolutely.
Counsel for the applicant:
In order to do that, the people leader must descend into the detail of the investigation and must be satisfied that the evidence gathered fits the recommendation for the outcome?
Mr Smith:
Yes, that’s right.[155]
[155]Transcript, p. 190, lines 15-20.
Mr Wayne Tawse
Mr Wayne Tawse was called by the applicant to give evidence on 11 February 2019.
Mr Tawse confirmed that he had given a written statement dated 28 November 2018 and signed on 5 December 2018, and that the views and opinions expressed in the statement are accurate and true to the best of his knowledge and belief.[156]
[156] Transcript, p. 195, lines 38-39; Exhibit L.
Mr Tawse gave evidence that he was a “regional executive retail” and that he began working for the respondent 31 years ago.[157] He agreed in evidence that he counts the applicant as a friend.[158]
[157] Transcript, p. 193, lines 23-26.
[158] Transcript, p. 194, line 31.
Under cross-examination Mr Tawse agreed that the respondent does not provide in its training that it is an automatic requirement that an employee who is under investigation be removed from the workplace. He stated: “Yes, the training doesn’t specifically say that.”[159] He further agreed that the decision is “a matter for a combination of the person’s people leader and Workplace Relations, subject to what facts were involved”.[160]
[159] Transcript, p. 197, lines 42-43.
[160] Transcript, p. 197, lines 45-46.
Mr Tawse gave evidence in his statement that the decision of Mr Crowe to convene the group meeting on 10 July 2014 was: “not consistent with my understanding of any of the advice, training or guidance that I have received at [the respondent] and is certainly not consistent with my understanding of [the respondent’s] policy or practice.“[161] Under cross-examination Mr Tawse qualified his statement:
Mr Crowe at the time gave me no information about the case because it was confidential, but then when you live and work with that market obviously the feedback comes from the piers and the managers and the people in that particular local area market, and that’s when I had feedback that Mr Crowe and Mr Travers had organised a meeting to get further feedback from individual employees in that local area market.[162]
[161] Exhibit L, [20].
[162] Transcript, p. 198, lines 37-42.
Mr Tawse gave evidence that it is “the normal course of action or best practice” to have an employee who is under investigation stood down or suspended. He agreed under cross-examination that the decision to stand down an employee would depend on the circumstances, “determined on the circumstances and the complexity of the case, and, yes, a lot of factors are considered into that.”[163]
[163] Transcript, p. 199, lines 20-24.
Mr Tawse gave evidence that, under the respondent’s complaints procedure, complaints “can be orally or in writing”,[164] and he agreed that “A formal complaint under that policy can be formalised with the assistance of the people leader or someone from Workplace Relations”.[165]
[164] Transcript, p. 199, line 41.
[165] Transcript, p. 200, lines 1-3.
Mr Tawse gave evidence that whether breaches of the respondent’s policies are serious enough for an employee to be given a “show cause” letter as to why his employment should not be terminated is “up to the discretion of the people leader and the Workplace Relations consultant.”[166]
[166] Transcript, p. 201, lines 1-2.
Under re-examination by counsel for the applicant, Mr Tawse agreed that where a serious complaint has been made against an employee, then the People Advisory Centre (“PAC”) should be contacted, and that the “ultimate decision maker”, in this case Mr Crowe, would “keep himself a little bit insulated from the [investigation] process so that his objectivity is preserved”.[167]
[167] Transcript, p. 203.
Mr Michael Johnston
Mr Michael Johnston was called by the applicant to give evidence on 10 June 2019.
Mr Johnston confirmed that he gave a statement dated 17 January 2019.[168]
[168] Exhibit AA.
Mr Johnston worked for the respondent until his employment was terminated in respect of the allegations made against him and the applicant.[169]
[169] Transcript, p. 562, lines 46-47.
Mr Johnston gave evidence about the file note of a meeting he and the applicant had with an employee. Mr Johnston gave evidence that he had subsequently made changes to that file note. The change to the note was “Craig and Michael visited Maryborough store to discuss [the employee]’s health, as he had been off and we wanted to ensure he was okay. [The employee] also wanted to discuss his progress.”[170] In respect of when he was questioned about this by investigators Ms Milliss and Ms Condorelli, he stated that:
What I actually said in the interviews is that they were just contemporaneous notes that I made at the time with limited detail and they would need to be contextualised in order to be able to make sense.[171]
Mr Johnston accepted under cross-examination that the amendment to the file note was a major change to the context of the meeting – that it changed the context from going to the Maryborough store to talk to the employee about his performance to going to the Maryborough store to talk to him about his health.[172] Mr Johnston accepted that the unamended file note is consistent with that employee’s allegation that he and the applicant attended the Maryborough store unannounced to talk to the employee about his lack of progress.[173]
[170] Agreed Bundle, volume C1, tab 13, [17].
[171] Transcript, p. 554, lines 1-4.
[172] Transcript, p. 557, lines 6-19.
[173] Transcript, p. 557, lines 45-47.

Mr Johnston gave evidence that he did not have discussions with the applicant about the contents of the interview he had with the investigators, because, “we were told not to.”[174] He agreed under re-examination by counsel for the applicant that he did not discuss with the applicant the amendment of the file note and that he had not been given a direction by the applicant to amend the file note.[175]
Witnesses called by the respondent
[174] Transcript, p. 557, lines 13-14.
[175] Transcript, p. 563, lines 40-44.
Ms Alexandra Milliss
Ms Alexandra Milliss was called by the respondent to give evidence on 11 February 2021. Her evidence continued on 12 and 14 February 2021.
Ms Milliss gave three statements in these proceedings.[176]
[176] Exhibit M, dated 23 February 2017; Exhibit N dated 10 September 2018; Exhibit O, dated 25 January 2019.
Ms Milliss was asked questions in cross-examination about the process of investigating …
Ms Milliss agreed under cross-examination that when an allegation of bullying, harassment or discrimination is made, it is important to provide the employee who is responding to the allegation particulars of the allegation, including “who said what to whom and when, what date, what time, in what context, in the presence of what witnesses”.[177] Ms Milliss gave evidence that where an investigator can’t provide that employee with full particulars, then: “I think the [employee] has to do their best to respond to the allegation that is put to them, as particularised as that may be.”[178] She further stated: “I think if the complainant has those particulars, then they have to be included in the allegations that are put to the [employee], so that the [employee] can fully respond.”[179]
[177] Transcript, p. 224, lines 7-14.
[178] Transcript, p. 224, lines 28-29.
[179] Transcript, p. 224, lines 36-39.
Ms Milliss was taken through her Investigation Report dated 22 August 2014.[180] She was taken to page 3 of the Investigation Report where she states: “A number of emails were found between [Mr Johnston] and [the applicant] between January 2013 and August 2014 with negative and inappropriate commentary about employee leave requests”. Ms Milliss could not recall if those “number of emails” were provided to the applicant in his interview on 7 August 2014.[181]
[180] Exhibit A, T4.
[181] Transcript, p. 268, lines 15-16, 31-32.
Ms Milliss agreed under cross-examination that she believed the complainants’ version of events with respect to the allegations over the applicant or Mr Johnston. Ms Milliss gave evidence that she “preferred the version of events as provided to us by the complainant”, and that that preference was not based on the demeanour of the complainants.[182] She explained further:
when we took into account all of the evidence that was provided to us by the complainants, and the manner in which they gave us that evidence, and also considered then the evidence that was provided to us by [the applicant], and the manner in which he provided that evidence, and then took into account the emails, and the - any other evidence, and looked at that as a whole, that is when we decided, we were satisfied that [the applicant] micro-managed [the complainants], and it was reasonable that they felt disempowered as a result.[183]
[182] Transcript, p. 281, lines 39-45.
[183] Transcript, p. 282, lines 3-10.
Ms Milliss agreed under cross-examination that when she speaks of the “manner” in which the complainants gave evidence that did involve elements of demeanour.[184] Ms Milliss conceded that she did not detail whether she “believed the complainants were being truthful” in the matrix document which was provided to Mr Crowe on 25 August 2014.[185]
[184] Transcript, p. 282, line 25.
[185] Transcript, p. 282, lines 34-36.
In respect of one allegation, Ms Milliss gave evidence that she preferred the complainant’s version of events:
Because we were satisfied that in - in relation to [the applicant]’s responses to us on other allegations, he had been untruthful to us in his responses. We had no reason to believe that [the complainant] had been untruthful in making these allegations to us, so when we had to consider [the complainant]’s versions of events over [the applicant]’s version of events, we preferred [the complainant] version of events.
Ms Milliss agreed under cross-examination that, in conducting an investigating allegations such as those made against the applicant:
the balance of probabilities test is one that has to be understood in the context of the test in Briginshaw … and the level of comfortable satisfaction in order to discharge the balance of probabilities has to be assessed in light of Briginshaw.[186]
She further agreed that “level of comfortable satisfaction, in order to substantiate the allegation, must increase before the balance of probabilities has been satisfied”.[187] Later in these reasons I discuss the application of the Briginshaw standard.
[186] Transcript, p. 309, lines 39-47.
[187] Transcript, p. 460, lines 10-12.
Ms Milliss rejected the suggestion that she “took a very biased view” of the applicant in conducting her investigation.[188]
[188] Transcript, p. 478, lines 15-22.
Mr Dion Crowe
Mr Dion Crowe was called by the respondent to give evidence on 13 February 2014.
Mr Crowe confirmed that he gave three statement dated 7 July 2017, 13 September 2018 and 25 January 2019, and that the statements are true and correct to the best of his belief and knowledge.[189]
[189] Transcript, p. 374, lines 1-2, 20-21, 37-38; Exhibit R; Exhibit S; Exhibit T.
Mr Crowe gave evidence that he was the “retail general manager for Queensland,” and that he was responsible for some 1,500 people employed by the respondent, and that the applicant was among the people under his responsibility.[190]
[190] Transcript, p. 386, lines 25-28.
Mr Crowe gave evidence that when “employee complaints or issues” arose he would:
always reference Workplace Relations in their role in the organisation to be the experts on complaints process, procedures, investigations, and those types of things, to seek guidance and advice, and that is their role.[191]
[191] Transcript, p. 386, lines 29-32.
Mr Crowe agreed that, at the time of undertaking training in relation to the employee complaints procedure, he would have been familiar with that procedure.[192]
[192] Transcript, p. 388, lines 8-9.
Mr Crowe gave evidence that when an investigation would commence:
I would say absolutely I would be a key decision maker in the process. … what would occur is that workplace relations obviously would undertake a thorough investigation. They would make recommendations to the people leader. In this case, myself. At that point in time I would also have during the investigation and at the end of it, ongoing conversations with my own people leader as well as the head of people … and [the executive general manager].[193]
[193] Transcript, p. 389, lines 10-17.
Mr Crowe gave evidence, however, that he did not defer to the Workplace Relations investigators in deciding that the allegations against the applicant were substantiated.[194] Mr Crowe gave evidence that he received the matrix document from Ms Milliss on the afternoon before the “outcome meeting” on 26 August 2014 and that he spent “a significant amount of time” dwelling on that document[195] and that he “did drill into the matrices”.[196] He stated:
I received the matrices document … and also what I want to reiterate is that I took the - the necessary time, given - given the significance of this matter, given again you’re dealing with a person here who has 30 years’ career; I took the necessary time to read through all of the documentation, satisfy myself with the veracity of the - the allegations and also the substantiation of those, and I agreed with the recommendations that a show cause was appropriate. Had I not agreed I would not have proceeded with those meetings.[197]
[194] Transcript, p. 436, lines 24-28.
[195] Transcript, p. 435, lines 39-40.
[196] Transcript, p. 436, line 30.
[197] Transcript, p. 435, lines 10-17.
Mr Crowe gave evidence that given “the investigators were looking at a number of allegations … the consolidation of all of those [allegations] was sufficient, in their view as well as mine, to provide [the applicant] with a show cause notice.”[198]
[198] Transcript, p. 440, lines 17-20.
Ms Lara Condorelli
Ms Lara Condorelli was called by the respondent to give evidence on 14 February 2019 and 11 June 2019.
Ms Condorelli confirmed that she gave two statements dated 7 September 2018 and 25 January 2019.[199]
[199] Transcript, p. 505; Exhibit Y; Exhibit Z.
Ms Condorelli gave evidence that she had not heard of the Brigginshaw test.[200] However, under cross-examination Ms Condorelli demonstrated that she understood what is required of a workplace investigator in assessing the evidence of complaints:
[200] Transcript, p. 538, line 18.
Counsel for the applicant:
Now, assessing the evidence, that’s a process where you’ve got to look at what the complainant says, you’ve got to look at what the respondent says, you’ve got to look at what the other witnesses say, you’ve got to have a look at what the documents infer or suggest, and you’ve got to make a determination about what is to be believed and what is to be rejected, don’t you?
Ms Condorelli:
Yes, on balance of probability.
Counsel for the applicant:
Yes?
Ms Condorelli:
What do we believe occurred.
Counsel for the applicant:
Yes. And that is an exercise that requires objectivity and a good deal of experience in terms of assessing and weighing evidence, and attributing weight to it in terms of its believability or credibility?
Ms Condorelli:
To a degree, yes. I mean it’s not a criminal matter, it’s a workplace matter. So, you know, where we have clear defined evidence to be able to say, you know, “This occurred and it was inappropriate and, well, we’ve been able to substantiate this allegation and it’s inappropriate”, versus perhaps a lack of evidence, then there may need to be some subjectivity in reaching that finding because, as I said, it’s not a criminal matter, it’s a workplace matter, and we need to, you know, determine what was reasonable under the circumstances, given what occurred, given who was impacted, given a number of different circumstances, and was there a pattern of behaviour that, you know, could point us to this being most likely true and having had occurred. So yes, to some degree there is absolutely the need for objectivity where there is sufficient evidence, but it’s not always like that. As you’re probably aware, there’s times where there is grey, and there’s times where we need to make that determination, and there may be some subjectivity that needs to come into that.
Counsel for the applicant:
Well, there’s always going to be instances where it’s just not clear cut?
Ms Condorelli:
Yes.
Counsel for the applicant:
And you’ve got to use your judgment and experience to cut through the grey?
Ms Condorelli:
Correct.
Counsel for the applicant:
And reach a conclusion?
Ms Condorelli:
Yes. And there may be times where we are unable to substantiate an allegation and we are in a position where we can’t favour either the complainant’s or the respondent’s version of events, and we’re satisfied that we just cannot substantiate it.[201]
[201] Transcript, p. 535, lines 7-44.
It was put to Ms Condorelli in cross-examination that the investigation into the applicant was flawed from the outset.[202] Ms Condorelli stated that she did not disagree with the proposition,[203] but she explained that much of the was conducted by Ms Milliss and that she was not privy to all of the conversations had in the course of the investigation. She further stated that she had little involvement in the investigation once the investigation report was handed down.[204]
[202] Transcript, p, 657, lines 35-36.
[203] Transcript, p, 658, line 14.
[204] Transcript, p, 658, lines 6-8.
Mr Wesley Travers
Mr Wesley Travers was called by the respondent to give evidence on 10 June 2019.
Mr Travers confirmed that he has given a statement dated 28 February 2015 and that the statement contains facts and matters which are true to the best of his knowledge and belief.[205]
[205] Transcript, p. 566, lines 14-15; Exhibit BB.
Mr Travers gave evidence that he has worked for the respondent for some 20 years and that he was a “HR business advisor to both the retail general manager in Queensland”.[206] Mr Travers, however, confirmed that he has not had experience in conducting formal investigations.[207]
[206] Transcript, p. 566, lines 32-34.
[207] Transcript, p. 568, lines13-14.
Mr Travers was asked in cross-examination why he would not have involved Workplace Relations as soon as the relevant employees had raised complaints against he applicant. Mr Travers explained that he met with a representative of the FSU on a regular basis. He spoke of meeting with the representative when “she raised that there were multiple employees who had concerns with some of the actions of” the applicant. He stated that “at that point she was unwilling to share the names of those employees” because of the employees’ fear of retribution.[208] Mr Travers further explained that in his experience working with the FSU representative, “she would generally try and resolve employee concerns directly with the leaders involved and she would only ever escalate more serious concerns.”[209]
[208] Transcript, p. 571, lines 1-10.
[209] Transcript, p. 571, lines 41-45.
Mr Travers confirmed that the respondent’s complaints procedure required that complaints be referred to Workplace Relations, but that prior to the group meeting on 10 July 2014, “the only information we had was that we had multiple employees who had some - and serious concerns around [the applicant]’s conduct. We did not know the specific nature of those concerns.”[210]
[210] Transcript, p. 572, lines 15-18.
Mr Travers confirmed that most of the employees who had raised concerns at the group meeting on 10 July 2014 had “ongoing performance or disciplinary issues on their own record”.[211]
[211] Transcript, p. 593, lines 1-2.
Ms Jenny Matthews
Ms Jenny Matthews was called by the respondent to give evidence on 11 June 2019.
Ms Matthews confirmed that she gave four statements in these proceedings dated 23 February 2017, 7 September 2018, 24 January 2019, and 30 January 2019.[212]
[212] Exhibit DD.
Ms Matthews told the Tribunal she is a “senior manager in Employee Relations Team” with the respondent,[213] having worked for the respondent since 1995.[214]
[213] Transcript, p. 663, lines 43-44.
[214] Transcript, p. 665, line 42.
Ms Matthews gave evidence that she was the manager of the investigators who conducted the investigation into allegations against the applicant.
Ms Matthews gave evidence that it is not the practice of the respondent to set terms of reference for a workplace investigation, and that in respect of the investigation into the applicant, she “would have said to [Ms Milliss], we have these concerns, can you pick this up and run with it basically.”[215] Ms Matthews agreed under cross-examination that at the commencement of the investigation the only evidence “would have been the notes of Mr Travers” and that “that is why [the investigators] were going to meet with these individuals, to make sure that they understood - you know, that they had a good hold of what the issues were.”[216]
[215] Transcript, p. 673, lines 27-30.
[216] Transcript, p. 674, lines 9-13.
Ms Matthews stated in respect of that her role in the investigation was:
So in terms of conducting the investigation itself I don’t recall specifically [what my role was] but I would have expected [Ms Milliss] would have ran with it. When I’ve reviewed emails and the material post - obviously I reviewed the matrix and the report and expect I would have had numerous discussions with [Ms Milliss] about that.[217]
[217] Transcript, p. 674, lines 24-30.
Ms Matthews gave evidence that, once she received the matrix document from Ms Milliss, she “I made a number of changes” to the matrix document and discussed it with Ms Milliss and then sent it to Mr Crowe.[218] Ms Matthews gave evidence that she endorsed the conclusions of the investigation report based on what she had read in the matrix document.[219] Ms Matthews stated that if she had any major concerns with the investigation report she would have spoken to Ms Milliss about it.[220]
[218] Transcript, p. 675, lines 13-16.
[219] Transcript, p. 675, lines 43-44.
[220] Transcript, p. 676, lines 34-35.
Ms Matthews agreed under cross-examination with the suggestion “that anything [in the investigation report] that for example that you felt might leave the NAB open to an assertion about lack of procedural fairness or whatever, you would have picked up on that”.[221]
[221] Transcript, p. 677, lines 1-3.
Ms Matthews gave evidence that at the time of the investigation into the applicant it was not the practice of the respondent to go back to a complainant who had made allegations against another employee and put the salient parts of the allegations back to the complainant in order to test the allegations.[222] However, Ms Matthews did give evidence that that practice would:
It would certainly have been considered so whenever somebody responds to concerns or provides other evidence, absolutely that would be considered by the investigator. Okay, I accept it was not given to others, it’s not what we did at the time but it absolutely would have been considered by the investigators.[223]
HISTORY
[222] Transcript, p. 679, lines 1-14, p. 687, line 37.
[223] Transcript, p. 691, lines 16-20.
Applicant
The applicant was an employee of the respondent from 5 December 1983 until he resigned on 23 December 2014[224] in a process which the applicant has described as a “mutually agreed outcome”.[225] From 1 April 2003 until the date of his resignation, the applicant held the executive position of “Regional Executive Retail, Sunshine Coast”.[226] In this position, the applicant had the responsibility of overseeing the management of all branches of the respondent in the market area of the Sunshine Coast region which extended south to Caloundra, north to Bundaberg, and west to Kingaroy and Gayndah. The applicant was the “People Leader” of each of the store managers of the respondent in the Sunshine Coast region. The Tribunal was informed that the respondent had 21 stores and more than 200 employees in the region.
[224] Exhibit B, [4].
[225] Submissions of the Applicant dated 5 September 2019, [30].
[226] Exhibit B, [5].
The applicant worked from the regional office of the respondent at Carnaby Street, Maroochydore. Mr Michael Johnston, the Regional Operations Manager, was also based at the Carnaby Street office with Ms Colleen Clark who provided support at the regional office. The Tribunal was informed that the applicant, Mr Johnston and Ms Clark all shared an open-plan office.
The “People Leader” of the applicant was Mr Dion Crowe who was the Retail General Manager for Queensland. In giving evidence, the applicant confirmed that Mr Crowe was his “manager or boss”[227] and there is no issue that Mr Crowe was the supervisor of the applicant. Mr Crowe had responsibility for all of the retail regions in the State of Queensland. Mr Crowe worked from the Queensland Head Office of the respondent in Creek Street, Brisbane. Mr Wesley Travers worked with Mr Crowe. Mr Travers was the “Manager: People (Retail)” with responsibility for employee relations In Queensland.
[227] Transcript, p. 25.
The group meeting on 10 July 2014
On the evening of 10 July 2014 there was a group meeting at Maryborough which was attended by several employees of the respondent from the Sunshine Coast region. The applicant, who learned that the meeting would be held, was not present at that meeting.[228] Both Mr Crowe and Mr Travers attended that meeting. In giving his evidence, Mr Crowe confirmed that the meeting was convened after a senior representative of the FSU had raised with him some concerns about the conduct of the applicant toward employees from the Sunshine Coast region who were members of the FSU. Mr Crowe denied that any of the employees who attended the group meeting had lodged complaints with the respondent about the applicant before the meeting. The policy documents of the respondent allowed an employee to lodge a complaint with his or her People Leader or with the Workplace Relations section of the respondent. Certainly, there is no evidence before the Tribunal that any of the employees present had lodged a complaint with the respondent before the group meeting.
[228] Exhibit B, [18]-[28].
The meeting at the Carnaby Street office on 18 July 2014

One issue for me to consider is the provision of assistance to the applicant under the Employee Assistance Program (EAP).
I have earlier mentioned that Mr Crowe had made arrangements for Ms Lisa Trotter to be physically present at the Carnaby Street office on the day of the meeting on 18 July 2014.[430] On 17 July 2014, Ms Matthews had advised Mr Crowe that Ms Trotter, psychologist, would “provide support on-site” for the applicant on 18 July 2014.[431] The applicant has himself confirmed that Mr Crowe had advised him on 18 July 2014 that Ms Trotter was “on call” and would be available to him over the next few weeks.[432] The applicant remarked that he had saw her “a few weeks later”.[433] In giving evidence the applicant confirmed that Mr Crowe gave him the business card for the local EAP contact and that he still had her business card on him. The applicant stated that he saw her once. Mr Crowe confirmed that he had a face-to-face meeting with the EAP psychologist prior to him meeting the applicant.
[430] Transcript, p. 415.
[431] Agreed Bundle, volume F, tab 27.
[432] Exhibit A, T-Documents, T20, p. 119.
[433] See also Exhibit N, [25].
Under cross-examination, Mr Crowe explained why he had arranged to have EAP to be at Carnaby Street on 18 July 2018:
the reason why EAP was arranged is because I knew that it was going to be a difficult and upsetting conversation … for a person that I knew well and had worked with for many years, and it would have been reasonable in the circumstances to have EAP on site, on every occasion like this.
I find that the applicant was offered support from EAP at the meeting that the applicant had with Mr Crowe and Mr Travers on 18 July 2018. I also consider that Mr Crowe fulfilled his responsibilities as a People Leader to ensure that EAP was available to the applicant on 18 July 2018.
I am satisfied that when the investigators interviewed the applicant on 7 August 2014 adequate EAP support was available to the applicant. On 30 July 2014 Ms Milliss sent an email to the applicant to confirm arrangements for the interview on 7 August 2014. The applicant was advised: “You are welcome to bring a support person to the meeting”. An attachment to the email was the “Conduct of Interview Protocol”, which incorporated a confidentiality agreement, that was provided to the applicant to review and sign before the interview. The agreed evidence includes the “Conduct of Interview Protocol” that was signed by Mr Black on 7 August 2014.[434] That document includes the following statement: “You are reminded of your ability to access NAB’s Employee Assistance Program on [telephone number supplied]”. The existence of this document which was provided to the applicant by Ms Milliss shows that the assertion by Mr Black that the investigators did not offer EAP to the applicant on 7 August 2014 has no basis. The fact that the document was signed by the applicant indicates that he was aware that he could have EAP on the day of the interview.
[434] Agreed Bundle, volume C.1, tab 86.
Mr Crowe in his statement states that he contacted the applicant following his interview by Ms Condorelli and Ms Milliss to check on his wellbeing and to reiterate the availability of EAP services. The applicant denies that he was contacted by Mr Crowe between 18 July 2014 and the outcome meeting, other than when Mr Crowe approached the applicant at the state target setting meeting in Brisbane. This assertion by the applicant was strongly denied by Mr Crowe. I consider that Mr Crowe as a People Leader did fulfil his responsibilities by not only checking on the wellbeing of the applicant, but also to reiterate the availability of EAP services to the applicant because such conduct would have been consistent with his previous actions in ensuring that EAP services were available to the applicant.
After the interview the applicant contacted Ms Milliss to advise her of a local restaurant, this indicates that the applicant was not then distressed even though in his statement he claims that he “felt exhausted and drained of energy” after the interview. In his statement he also states that after the interview “I do not recall Ms Milliss or Ms Condorelli inquiring about my health or wellbeing about my health or wellbeing at the time on Thursday, 7 August 2014.”[435] A person reading the statement would have the clear impression that the applicant did not speak to the Ms Milliss or Ms Condorelli after the interview. However, under cross-examination the applicant admitted that he did contact Ms Milliss to advise her of a local restaurant.
[435] Exhibit B, p. 18, [149].
Mr Black has asserted that it was “indelibly etched” in his memory that the applicant was not offered assistance under the EAP by the investigators in the manner that would be expected in the context of the interview on 7 August 2014. Mr Black did not explain the basis of his criticism. As I have previously explained, I do not accept that Mr Black is a credible witness. I have also previously referred to cogent evidence that adequate EAP was offered to the applicant on 7 August 2014.
Assistance under the EAP was also made available to the applicant when he attended the meeting on 18 August 2014. On 17 August 2014, Ms Matthews had arranged for an EAP counsellor to be present at the Carnaby Street office at 9am on 18 August 2014. Mr Crowe made arrangements to meet the EAP counsellor at 9am on that day.
I consider that the provision of assistance under the EAP during the period of reasonable administrative action was both adequate and reasonable. I have referred to instances when Mr Crowe, as the People Leader of the applicant, ensured that assistance under the EAP was available to the applicant. The only real assertion that the assistance under the EAP was not adequate was made by Mr Black who complained about assistance that was provided on 7 August 2014, and I have found that there was no basis to his criticism.
The applicant has complained that he was not offered assistance under the EAP when Mr Crowe advised him that he was to attend the group meeting at Maroochydore on 10 July 2014. As I have previously indicated, the group meeting was not held at a time when there was reasonable administrative action. Accordingly, what occurred at the time of the group meeting is not relevant to my enquiry as to whether the reasonable administrative action was taken in a reasonable manner. However, as I have previously indicated, there is no cogent evidence that the applicant had any mental health concerns at the time of the group meeting. I have previously pointed out that Dr Nothling in his third medical report dated 29 November 2017, which outlined the stressors sustained by the applicant, gave his opinion that the earliest stressor experienced by the applicant was on 18 July 2014, this was well before the date of the group meeting. There was no cogent evidence that assistance under the EAP was required at the time of the group meeting.
WHETHER THE REASONABLE ADMINISTRATIVE ACTION WAS TAKEN IN A REASONABLE MANNER
I must next determine whether the administrative action of the respondent, that were taken in respect of the applicant’s employment, were reasonable actions in the circumstances. The applicant contends that in order to be a “reasonable investigation”, or “reasonable findings”, the investigation needed to be an instance of reasonable administrative action “conducted reasonably”, and the findings needed to be the product of a reasonably conducted investigation.[436] The actions that are of concern are the respondent’s manner of conducting the formal investigation of the complaints made against the applicant. In considering whether the formal investigation was conducted in a reasonable manner, it is necessary to consider the seriousness of the complaints against the applicant. This will inform as to whether the actions taken were proportionate and appropriate in the circumstances.
[436] Submissions of the Applicant, in Reply dated 16 January 2021, [3](c).
The respondent made the following submissions as to the seriousness of the complaints:[437]
[437] Respondent’s submissions – closing address.
34. The Applicant’s conduct was found by investigators (with a level of review also from the manager of Workplace Relations and the State General Manager NAB Retail) to have engaged in conduct which breached NAB codes of conduct, policies and values. The Applicant had “broken the trust placed in” him “in terms of his management responsibility for employees”. He was a 30-year employee of the bank and a senior manager, well trained on the policies and, simply put he should have known better. His behaviour was unacceptable to the bank, as it would have been to any reasonable employer.
35. The allegations from different complainants were individual, but there was a common theme that the Applicant did not properly respond to leave requests; did not provide empathetic responses/assistance to employees with very significant health issues (personally or their spouses); made suggestions to persons who were ill or had ill spouses that was inappropriate and which showed that the needs, as he saw it, of his retail banking area came before his staff. The allegations were many and the complainants many – 6 complainants in all; 3 of which were bank managers and one an assistant bank manager – i.e. senior employees of the bank.
36. After a comprehensive investigation, tasked to two very experienced workplace relations consultants and investigators, the following is a brief summary (taken from the show cause letter) of the findings:
1. On 5 March 2014, you and Michael Johnston attended at Maryborough Branch for the purposes of having a discussion with [employee A] about his performance. You provided no notification of the meeting or that you and Michael would both be in attendance.
2. In the meeting with [employee A] on 5 March you and Michael questioned [employee A] as to why he had not disclosed his wife’s illness during his initial interview for the store manager role. Further, you asked [employee A] how he planned to manage the “business impact” of any absences he would need to take as a result of his wife’s illness.
3. You took an unreasonable period of time in assessing [employee B]’s application for prolonged sick leave. This leave was only approved following intervention by the FSU and Workplace Relations.
4. You acted inappropriately and without empathy toward employees who were experiencing significant events in their personal life and required, or may require, extended leave. This included [employee C] who required a hysterectomy, [employee B] who was diagnosed with Breast Cancer, [employee D] who was hospitalised whilst pregnant and [employee A] whose wife had suffered heart failure.
5. You advertised both [employee E] and [employee B]’s roles on a permanent basis without their knowledge and despite advice provided by Workplace Relations to the contrary. This was particularly concerning for [employee B] who felt you and Michael were implying her illness was terminal.
6. You placed unreasonable pressure on [employee D], [employee B] and [employee F] to move to a lower graded role under the guise of offering them support.
7. You have micromanaged Store Managers who felt as though they could not leave the store without prior approval from you. Further, you were controlling of recruitment decisions and simple store purchases.
(references omitted)
The applicant has submitted that “the investigation was flawed and cannot meet that descriptor.” I do not accept this submission. I have already outlined why I consider that the process of reasonable administrative action was taken in a reasonable in terms of providing procedural fairness to the applicant and in providing support to the applicant under the EAP. I will also outline other reasons why I consider that the reasonable administrative action was taken in a reasonable manner.
From the commencement of reasonable administrative action which commenced on 18 July 2014, Mr Crowe was at pains to ensure that assistance under the EAP was available to the applicant. I have mentioned how before his meeting with the applicant on 18 July 2014 he made an appointment with an EAP representative to ensure the applicant would have assistance. The applicant called Ms Clark as a witness in an attempt to say that Mr Crowe was somehow derelict in his duty in providing EAP assistance to her and inferentially to the applicant. However, under cross-examination she was taken to annexure B in her own statement in which she acknowledged that EAP support was provided to her.
The applicant has submitted that he did not appreciate that the process of administrative action may result in a recommendation that his employment be terminated. I do not accept that this is plausible because the applicant gave evidence that he had regularly undergone training in the Code of Conduct. The Code of Conduct expressly provided:
If these investigations reveal breaches, appropriate disciplinary and remedial action will be taken. This may range from providing training, coaching and counselling, through to formal warnings or termination of employment.[438]
I find it incomprehensible that the applicant as a senior executive did not appreciate the possible consequences of breaching the Code of Conduct.
[438] Agreed Bundle, volume E, tab 3.
I also accept the evidence of Ms Milliss in her statement of 10 September 2018 where she stated that at the interview on 7 August 2014 she explained to the applicant, in the presence of Mr Black, that “the consequences could range from no action against the Applicant through to termination of his employment”.[439] In giving evidence, Ms Milliss stated that she was aware that both the applicant and Mr Black had provided statements in which they stated that the potential of the termination of employment of the applicant was not raised.[440] Under cross-examination Ms Milliss stated that she adhered to her evidence. She remarked: “I absolutely explained what the consequences are and what the range was.”[441] It was quite properly not put to her that her evidence was not correct. I accordingly find that at the interview on 7 August 2014 Ms Milliss explained to the applicant in the presence of Mr Black that one possible consequence was the termination of the employment of the applicant. I accordingly do not accept the assertion of the applicant that he was first informed of the possibility of termination at the meeting on 26 August 2014. In informing the applicant of the possible consequences of a breach of the Code of Conduct Ms Milliss took action in a reasonable manner so that the applicant would appreciate the possible consequences of the workplace investigation.
[439] Exhibit N, [29].
[440] Exhibit B, statement of Craig Bryant, 8 December 2017, [197]; Exhibit F, statement of Peter Black, 6 December 2017, [54].
[441] Transcript, p. 250, lines 40-41.
Ms Milliss confirmed when giving her evidence that the applicant at the outset of the interview raised concerns about the breaches of confidentiality. The applicant did complain that the complainants had not maintained confidentiality and Ms Milliss stated that she did raise the issue of confidentiality with the FSU and one complainant. The applicant has agreed that on 18 July 2014 he was directed by Mr Crowe, his People Leader, that he had to keep their conversation on that date confidential. However, the applicant admitted in cross-examination that he had told Mr Johnston, Ms Clark, and Mr Black that he was being investigated by the respondent.[442] In these circumstances when it clearly behoved the applicant to keep the workplace investigation confidential, the applicant cannot complain about any breach of confidentiality when he himself has admitted to breaching the confidentiality of the workplace investigation. I consider that Mr Crowe was taking action in a reasonable manner in insisting on the confidentiality of the workplace investigation because this protected the reputation of both the applicant and respondent.
[442] Transcript, p. 36, lines 21-32.
The applicant asserted that Mr Crowe could not have spent “proper time” in examining the findings in the Investigation Report and the matrix document before the outcomes meeting on 26 August 2014. Under cross-examination Mr Crowe demonstrated his familiarity with the documents. He stated that the report summarises the investigation and the matrix document then went into more detail about the allegations. Mr Crowe stated that he remembered reading both the report and the matrix document prior to meeting with the applicant on the date scheduled for the outcomes meeting on 26 August 2014.
It was put to Mr Crowe that he received the matrix document in a vehicle when travelling to the Carnaby Street office on the morning of the meeting on 26 August 2014. That was emphatically rejected by Mr Crowe. At the time when Mr Crowe gave his evidence the relevant email which transmitted the report to him was not identified from the reams of material that had been disclosed to the applicant. It is now clear that Ms Milliss sent the Investigation Report to Mr Crowe by an email that was sent on 25 August 2014 at 2.58 pm.[443] That email stated that the matrix document would be provided later that day. At 7.10pm on 25 August 2014 both the Investigation Report and the matrix document was sent to Mr Crowe.[444]
[443] Exhibit X.
[444] Exhibit EE.
Having inspected this contemporaneous documentation, there is accordingly no basis in the suggestion that the matrix document was given to Mr Crowe on the morning of the meeting on 26 August 2014. I accept the evidence of Mr Crowe and Ms Matthews that they satisfied themselves of the appropriateness of the allegations in the “show cause” letter before it was provided to the applicant on 26 August 2014. It should be borne in mind that Mr Crowe had to satisfy himself that a “show cause” letter was appropriate. I accept that Mr Crowe did fulfil his responsibilities as a People Leader and that this process was conducted in a reasonable manner.
It should be emphasised that Mr Crowe in authorising the issue of a “show cause” letter gave the applicant the opportunity to contest matters in the “show cause” letter as well as in the matrix document. The provision of the matrix document as well as in the “show cause” letter showed that the investigators were acting in a transparent manner. It is true that the applicant complained about the inference which was made by the investigators who read the emails of the applicant. It was certainly open to the applicant to challenge there inferences as well as any other findings of the investigators. The action of the investigators in providing the documentation to the applicant was taken in a reasonable manner. It should be borne in mind that at the time when the “show cause” letter and the matrix document as served on the applicant no decision had yet been made to terminate the employment of the applicant. The applicant could have provided a response which would have prevented such action.
I do not accept the assertion of the applicant that he wished to not continue his duties after being informed of the workplace investigation on 18 July 2014. Ms Matthews in her statement of 9 February 2014 has stated that she had a conversation with the applicant who confirmed that he wished to remain in his role. This account of Ms Matthews was not challenged. It was reasonable for the respondent to allow the applicant to continue his role after the commencement of the workplace investigation.
One issue that was raised at the hearing was whether there were breaks given to the applicant at the interview on 7 August 2014. Both the applicant[445] and Mr Black[446] in their statements say that the only breaks were to allow Ms Condorelli to record the response of the applicant. The applicant states: “I do not recall being given any opportunity to take a break during the interview.” Mr Black similarly states: “I recall that the interview ran for approximately three (3) hours. I recall that neither Ms Milliss nor Ms Condorelli offered [the applicant] any opportunity to take a break during the interview.” Ms Millis states:
During the course of the interview with the Applicant there were multiple breaks to allow Ms Condorelli to complete her typing of what was being said and in addition there was at least one longer break, where the Applicant and his support person Mr Black left the room being used for the interview and Ms Condorelli and I stayed in the room. I do not recall the Applicant or Mr Black requesting a break in the interview and certainly if a break/further break was requested I would have agreed.
It was put to Ms Millis as follows: “I put to you that you didn’t have any breaks, other than breaks for Lara Condorelli to catch up with her typing”. Ms Milliss denied this question and answered that “there were definitely breaks for Lara to catch up with her typing, but there was at least one break where [Mr Black] and [the applicant] left the room.”[447] I consider that there was certainly an interval when the applicant and Mr Black left the questioning process. The applicant states that they just walked to the back of the room while Ms Condorelli was catching up, only a very small room, stretched and then came and sat back down but never left the room. The recollection of Ms Milliss was different; she states that the applicant and Mr Black left the room. It is a peripheral issue whether applicant and Mr Black actually left the room, but it is clear that the only breaks in the interview were not for Ms Condorelli to record the response of the applicant. Ms Milliss stated that the applicant did not request any break. Her recollection accords with the recollection of the applicant who was asked in cross‑examination whether he was asked whether he requested any breaks; the applicant answered “No, I really just wanted to get through it. There seemed to be a fair bit”. This was not a situation where the applicant was denied breaks during the interview.
[445] Exhibit B, p. 16 [132], p 37 [20].
[446] Exhibit F [49].
[447] Transcript, p. 243, lines 37-39.

There was in my opinion no cogent evidence which would enable me to conclude that any of the investigators were biased in any way against the applicant. It was certainly strongly put to the investigators that there was bias against the applicant, but there was no evidence of bias in the evidence before the tribunal. In my opinion the investigators took an objective approach in not upholding all of the complaints made against the applicant.
The respondent has observed that the applicant had access to the statements of other witnesses. There is no evidence that the applicant took advantage of such access.
CONCLUSION
The reasonable administrative action of the respondent was the sole cause of the disease of the applicant. I accept the submission of the parties that that the administrative action was reasonable. I have also concluded that the reasonable administrative action was taken in a reasonable manner in respect of the employment of the applicant. In my opinion, the applicant would have been entitled to succeed in his claim for compensation were it not for of section 5A(1) of the Act. Under that provision a claim for compensation cannot succeed if comes within the exclusionary provision of s 5A(1) of the Act.
In Comcare v Martin (2016) 258 CLR 467 at 479-480, the High Court of Australia remarked in respect of the exclusionary phrase of section 5A(1) of the Act:
When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease "as a result of" administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.
That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to "ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers' compensation" and as including, in particular, to prevent claims "being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of" such action.[448] The taking of administrative action in respect of an employee's employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee's reaction.
[448] Australia, House of Representatives, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, Explanatory Memorandum, pp iv, v.
It is not difficult to feel sympathy for the plight of the applicant who had been employed by the respondent since he left school. Having regard to the length of the hearing of this application and the extensive documentation, I am conscious of the expense of this application. However, my duty in following the decision of the High Court of Australia in Comcare v Martin (2016) 258 CLR 467 requires that I affirm the decision under review.
DECISION
I affirm the decision under review.

I certify that the preceding three-hundred and thirty-seven (337) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

…………[SGD]………………………..
Associate
Dated: 30 July 2021

Dates of Hearing:
6 February 2019
7 February 2019
8 February 2019
11 February 2019
12 February 2019
13 February 2019
14 February 2019
10 June 2019
11 June 2019

Final Submissions Received: 16 January 2020

Solicitor for the Applicant:
Mr John-Anthony Hodgens,
Macpherson Kelley

Counsel for the Applicant:
Mr Andrew McLean-Williams (February 2019)
Mr John Dwyer (June 2019)

Solicitor for the Respondent:
Ms Mary MacLeod,
MinterEllison

Counsel for the Respondent: Mr Andrew Kitchin

[2021] AATA 2769

30 July 2021

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Procedural Fairness

Natural Justice

Judicial Review

Jurisdiction

Appeal

Dates of Hearing:	6 February 2019 7 February 2019 8 February 2019 11 February 2019 12 February 2019 13 February 2019 14 February 2019 10 June 2019 11 June 2019
Final Submissions Received:	16 January 2020
Solicitor for the Applicant:	Mr John-Anthony Hodgens, Macpherson Kelley
Counsel for the Applicant:	Mr Andrew McLean-Williams (February 2019) Mr John Dwyer (June 2019)
Solicitor for the Respondent:	Ms Mary MacLeod, MinterEllison
Counsel for the Respondent:	Mr Andrew Kitchin