Bui and Australian Postal Corporation
[2009] AATA 803
•20 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 803
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos. V 200600693
) 2007/1852
GENERAL ADMINISTRATIVE DIVISION ) Re NINA QUYNHNGA BUI Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal G.D. Friedman, Senior Member Date20 October 2009
PlaceMelbourne
Decision The Tribunal affirms the decisions under review.
....................[signed].....................
Senior Member
COMPENSATION – Postal Shop manager - depressive disorder - whether counselling by employer constituted reasonable disciplinary action - claim for permanent impairment
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 24
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Hart v Comcare (2005) 145 FCR 29
Re Choo and Comcare [1995] AATA 350
Re Inglis and Comcare [1997] AATA 307
Re Rizkallah and Australian Postal Corporation (1991) 23 ALD 517
Repatriation Commission v Webb (1987) 7 AAR 233
REASONS FOR DECISION
20 October 2009 G.D. Friedman, Senior Member
1. Nina Bui had been the manager of an Australia Post shop in Melbourne for nine years. In 2005 the respondent raised a number of concerns about her work practices and performance and in January 2006 conducted a counselling interview for alleged breaches of the Code of Ethics as part of its disciplinary process. Ms Bui was unhappy with the outcome and ceased work in May 2006 on medical grounds. She claimed compensation for depression, stress and anxiety arising from the process.
LEGISLATIVE BACKGROUND
2. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in effect at the relevant time, provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4(1) of the SRC Act includes the following definitions:
…
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
3. Section 24 of the SRC Act provides for the payment of compensation for injuries resulting in permanent impairment:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
…
The words permanent and impairment are defined in s 4(1) of the SRC Act as follows:
permanent means likely to continue indefinitely.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
ISSUES
4. The respondent conceded that Ms Bui suffered from depressive disorder from 30 January 2006, when she first sought medical treatment, and that her condition was contributed to in a material way by her employment with the respondent. The main issue before the Tribunal was whether the condition was suffered as a result of reasonable disciplinary action taken against her, in which case it is not compensable. This involves consideration of the respondent’s disciplinary process; the disciplinary action taken against Ms Bui; and whether the disciplinary action was reasonable. Ms Bui also sought review of the decision not to grant compensation for permanent impairment.
WHAT IS THE RESPONDENT’S DISCIPLINARY PROCESS?
5. The respondent’s Employee Counselling and Discipline Process (the Discipline Process) applies to breaches of the Code of Ethics and is part of the discipline provisions covered by the Australia Post Enterprise Agreement 2004.
6. Paragraph 6.1.1 of the Employee Counselling and Discipline Policy (the Discipline Policy) states that behaviour and/or performance by an employee of the respondent that seemingly falls short of the standards in the Code of Ethics or other employee contractual obligations will initiate the application of the Discipline Process, which consists of:
· ongoing informal feedback (Face-to-Face Feedback);
· counselling (Formal Counselling and Warning Counselling); and
· discipline (Disciplinary Inquiry).
7. The Discipline Policy notes that where it is considered that there is a minor shortfall between the required standard of behaviour and/or performance, a supervisor or manager should initiate informal feedback with the employee, to identify the required remedial action to assist the employee. The objective of counselling is to promptly draw to an employee’s attention behaviour/performance that apparently falls below the standards in the Code of Ethics, and to assist the employee where necessary to achieve and maintain the required standards. In the event that Face-to-Face Feedback or Counselling are ineffective in an employee achieving and maintaining the required change, or if there is an apparent serious breach of the standards in the Code of Ethics or contractual obligations, a Disciplinary Inquiry will be initiated.
8. Paragraph 6.2.8 of the Discipline Policy provides that Formal Counselling will be held in circumstances where misconduct and/or deliberate under-performance against an agreed or required standard which has previously been discussed with the employee through Face-to-Face Feedback with his or her immediate supervisor, is apparently repeated or continued and further Face-to-Face Feedback is considered ineffective. Paragraph 6.2.9 of the Discipline Policy provides that if an employee’s behaviour and/or performance do not improve after Formal Counselling or the nature of the allegations warrants it, Warning Counselling should normally be undertaken by the next level of management in order to emphasise the seriousness of the employee’s situation. The purpose of Warning Counselling is to emphasise that the behaviour and/or performance is unacceptable and to seek a commitment to making improvement; and to make clear that further misconduct and/or deliberate under-performance may lead to a Disciplinary Inquiry and serious disciplinary consequences.
WHAT DISCIPLINARY ACTION WAS TAKEN AGAINST MS BUI?
9. On 9 January 2006 Ms Bui received written notice to attend a Warning Counselling interview on 13 January 2006. The notice referred to alleged breaches of the Code of Ethics:
1. Work practices and performance;
Failing to consistently perform work to an agreed or prescribed standard or higher. (referring to an alleged unauthorised self-payment of $80.00 for spectacles in September 2005 [the glasses issue]; and a site visit by Area Managers in May 2005 which raised issues in relation to the performance of the Northland Shop).
Responsible for the safeguarding and correct use of corporate property (including stock) under our control. (referring to alleged stock losses of books valued at $4079.30 [the books issue] and stamp booklets valued at $1467.00 [the stamps issue] from June 2005).
2. The work environment
Failure to create and maintain a safe and healthy work environment, using safe work practices and ensuring our own or others’ work safety is never impaired. (referring to advice in May 2005 and December 2005 that housekeeping required attention).
10. In Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 Cooper J said (at 83):
In the context of the definition of ‘injury’ in s 4(1) of the [SRC] Act, the phrase ‘disciplinary action’ means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth ...
11. In Re Rizkallah and Australian Postal Corporation (1991) 23 ALD 517 the Tribunal decided that action constituting disciplinary action did not necessarily involve a punitive response or the application of a sanction being applied after a finding of wrongdoing.
12. The Tribunal is satisfied that the Warning Counselling interview was conducted as part of the disciplinary process of the respondent, and constituted disciplinary action for the purposes of the definition of injury in s 4 of the SRC Act.
WAS THE DISCIPLINARY ACTION REASONABLE?
13. Ms Bui told the Tribunal that the action by the respondent to arrange a counselling interview was unjustified and the conduct of the interview was unreasonable. She said that she was shocked to receive the notice of Warning Counselling, particularly as there had been no prior concerns expressed to her by any manager about her performance or alleged breaches of the Code of Ethics, and some of the matters listed in the notice referred to events that had occurred at least ten months earlier. She emphasised that Ms H Stritthof, the new Area Manager, had visited the Shop on 4 January 2006 and had not raised any concerns.
14. By way of background Ms Bui said that she was born in Vietnam and fled to the United States of America in 1982. She arrived in Australia in 1985 and commenced with the respondent in 1988 as a customer service officer. Ms Bui stated that in 1989 she completed a management course at Chisholm TAFE College, and in 1992 was promoted to a supervisory position. She was appointed Postal Manager 1 in 1994, followed by Postal Manager 2 in 1995. In 1997 she was appointed Postal Manager 3 at the Australia Post Shop in Northland Shopping Centre (Northland), where she remained until ceasing work in May 2006.
15. Ms Bui stated that she enjoyed working for the respondent and always maintained good working relationships with other employees. At Northland she oversaw a staff of ten employees, and she believed that she was an efficient and competent manager. The performance indicators for the Shop were positive. However circumstances changed in April 2005 when Ms S Stride was appointed Acting Area Manager. Ms Stride was her immediate supervisor, and Ms Bui said that she found Ms Stride difficult to work with. She believed Ms Stride did not like her.
16. In relation to the glasses issue, Ms Bui said that she purchased a new pair of spectacles, for which she was entitled to claim up to $80 every two years. She said that in September 2005 she followed the correct procedure by preparing the relevant documentation and asked Ms Stride to authorise payment. Ms Bui denied that she had failed to obtain written authorisation for the transaction. She said that there had simply been a miscommunication with Ms Stride, and she believed that Ms Stride had accepted her explanation at the time.
17. In relation to the site visit in May 2005, Ms Bui said that her diary entry for that day and her recollection were that the visit by Ms Stride and Mr B Storer was unannounced and lasted for about one hour, during which they discussed a few general issues about the Shop’s performance. She said that that no concerns were raised with her during the visit or subsequently. She said that a note allegedly made after the visit outlining many areas of concern and supposedly discussed with her must have been fabricated.
18. In relation to the books issue, Ms Bui said that three players from the Collingwood Football Club were due to sign copies of a new book at Northland on 15 August 2004, and on the afternoon before the event the publisher’s representative arrived with 200 books but no invoice. She said that the representative agreed not to charge for the books in advance, and that all unsold books would be returned to the publisher. Ms Bui explained that payment was only required for the books sold. She stated that 40 copies were sold and the remainder were sent back to the publisher by registered post. Final payment was made in about September 2004.
19. Ms Bui said that in about July 2005 the publisher sent an invoice for a shipment of books which it claimed had not been returned. Ms Bui was adamant that the correct procedure had been followed by her and one of her staff for the return of the books, and she could not understand how the cartons that had been sent by registered post could have been mislaid. She also stated that she could not make the necessary entries in the accounting system because the publisher had not provided an initial invoice, so in fact the books were being stored at the Shop rather than purchased.
20. She accepted that she had overall responsibility for the book signing, but stated that her requests for assistance from Head Office had been ignored. She said that she did not believe that the invoice should have been paid without proof that the publisher had received the books, but while she was on leave in the period September to November 2005 Ms Stride had authorised payment without examining archived material. Ms Bui denied that her paperwork had been deficient or that she had done anything incorrectly, although she conceded that she has been unable to locate documentation that proved that she had returned the books to the publisher. She maintained that the only requests to her for information were made in two telephone calls in August 2005 seeking information on the issue, and that at no time was the urgency of the matter explained to her. Ms Bui explained that this was not surprising as the events had taken place almost 12 months earlier.
21. In relation to the stamps issue, Ms Bui said that these were 2004 philatelic items that were discovered by the relieving manager in November 2005 while she was on holidays. She acknowledged that the stock should have been withdrawn and destroyed at the end of 2004, and believed that this had been done by a staff member in November 2004, but the items had incorrectly been brought back into stock and were placed in a cabinet and not discovered until 2005. She said that the staff member had made an honest mistake, and that procedures had been implemented to ensure that the error would not occur again. Ms Bui stated that she could not be held responsible for everything that happened in the Shop.
22. Ms Bui told the Tribunal that she was very upset and distressed at the allegations against her. At the Warning Counselling interview Ms Stritthof had agreed to allow her four weeks to substantiate her actions regarding the disused philatelic stock, and Ms Stritthof had said she would consider reducing the Warning Counselling to Formal Counselling. Ms Bui said that an Occupational Health and Safety audit of the Shop was carried out on 16 January 2006, and a financial audit was conducted on 17 January 2006. She stated that on 25 January 2006 she was given feedback on the audits, and the minutes of the meeting note that Ms Stritthof was happy with the Shop’s performance and that the audits had revealed no outstanding financial or work environment issues of concern. She said that the Warning Counselling interview had caused her depression and anxiety, and she sought medical treatment from her general practitioner on 30 January 2006. She also reported her medical condition to her managers on that date.
23. In a memo to Ms Stritthof dated 8 February 2006 Ms Bui responded to the allegations against her, and believed that all her actions had been vindicated. She demanded an official apology from Ms Stritthof and Ms Stride. In her memo Ms Bui also referred to issues that were brought up at the Warning Counselling interview that were not included in the Notification of Warning Counselling Interview, such as her competence in the role of Manager. She said that morale at the Shop was good because of the Shop’s financial achievements, and the team was happy and supportive. Ms Bui said that on 15 February 2006 she wrote a follow-up memo to Ms Stritthof seeking confirmation of the assurance given on 10 February 2006 that the Warning Counselling would be downgraded to the more informal Face-to-Face Feedback, and was upset to receive a memo dated 15 March 2006 from Ms Stritthof in which the Warning Counselling was reduced instead to Formal Counselling. Ms Bui said that in a memo dated 11 April 2006 she stated that Formal Counselling was unfair. She said that she believed she was being used as a scapegoat for problems with systems control and with the authorisation process by Area Managers.
24. Ms Bui said that the stress of the events caused her to take sick leave from 13 to 21 April 2006. On 27 April 2006 she again asked Ms Stritthof to discontinue all matters that were the subject of the Warning Counselling, and on 1 May 2006 she complained to Ms Stride that statements which were used against her in the Warning Counselling interview had not been given to her until 27 March 2006. She said that she pointed out to Ms Stride that none of her achievements had been recognised, and that only criticism had occurred. She said that Ms Stride’s unfair treatment had damaged her physical and mental health.
25. Ms Bui said that in April 2006 she commenced sick leave as a consequence of the stress and anxiety. On 5 May 2006 she lodged a formal grievance against Ms Stride and Ms Stritthof, claiming harassment and bullying as a result of the continuing allegations, which she said were without foundation and had damaged her reputation. She said that the respondent had not followed the Discipline Process, particularly as there had been no prior allegations of breaches of the Code of Ethics. She said that her doctor had cleared her to return to work on 8 May 2006, but on that day Ms Stride and Mr D Cunningham from the respondent’s Human Resources area had sent her home because they said she was not well enough to work. She said that she was humiliated, and her self-confidence was shattered. She has been deemed unfit for work since then, and blamed the respondent for taking disciplinary action that she considered to be totally unreasonable.
26. Ms J Doyle, Secretary, Postal & Telecommunications Branch (Victoria), Communication Workers’ Union, told the Tribunal that she accompanied Ms Bui to the Warning Counselling interview as a union representative. In an affidavit dated 30 November 2007 Ms Doyle stated that the Warning Counselling notification was in breach of the Discipline Policy because it referred to events that occurred between May and September 2005, up to eight months earlier. She also said that the respondent should have conducted an investigation at the beginning of the interview before proceeding with disciplinary action.
27. Ms Doyle stated that she believed that the process was unreasonable, and that Ms Stritthof and Ms Stride were making a personal attack on Ms Bui by using alleged breaches of the Code of Ethics in order to manipulate Ms Bui into accepting a demotion. She referred to racial undertones arising from discussion about Ms Bui’s accent. Ms Doyle concluded from the interview that the status of the interview was to be reduced from Warning Counselling to Formal Counselling. She did not believe that the matters raised at the Warning Counselling interview were genuine performance issues. In oral evidence Ms Doyle maintained that the circumstances did not warrant the use of the disciplinary process to address performance-management issues.
28. Mr G Krayem, Manager, Performance, Corporate Human Resources with the respondent, and formerly Human Resources Manager, Commercial Victoria/Tasmania, told the Tribunal in a witness statement dated 6 May 2009 that the aim of the Discipline Policy is to correct issues that may have arisen, and may be invoked in situations where behaviour and/or performance of an employee fall below the standards in the Code. He said that at levels below Disciplinary Inquiry the desired outcome is to identify remedial action to assist the employee to achieve and maintain the required standard of behaviour and/or performance. Mr Krayem stated that the levels within the Discipline Policy are not a series of hierarchical steps to be followed. In deciding the appropriate level to be invoked there are a number of factors to be considered, including the general circumstances and seriousness of the allegations and whether there is a pattern of behaviour.
29. In respect of the matters concerning Ms Bui, Mr Krayem told the Tribunal that on 22 December 2005 he was given a verbal briefing of concerns that had been expressed by Ms Stride in writing on 1 December 2005 about the glasses issue. He produced email correspondence with Ms Stride and other managers about Ms Bui’s performance in this matter and areas such as stock loss as a result of the books issue, the physical state of the Shop, and incompetence. He said that after the briefing he recommended Warning Counselling because the allegations included serious matters such as the books issue and the stamps issue that involved a possible loss of revenue as a result of stock not being accounted for adequately. On 3 January 2006 Ms Stritthof and Ms Stride accepted the recommendation, and the notification was given to Ms Bui on 9 January 2006.
30. Mr Krayem said that he was not involved in the counselling session. He told the Tribunal that by the end of April 2006 Ms Bui had been off work since 30 January 2006 and there was concern about her health and whether she could resume her duties. He said that when Ms Bui attended the workplace on 8 May 2006 these concerns remained, as she had not been examined by a doctor on behalf of the respondent, although her treating doctor had provided a medical certificate stating that she was fit for normal duties. Mr Krayem stated that because of these concerns she was handed a letter requiring her to cease duty until she was assessed by a doctor on behalf of the respondent on 22 May 2006 and certified fit for work.
31. Mr Krayem stated that he attended a meeting arranged by the Communication Workers’ Union on 10 May 2006, at which agreement was reached that Ms Bui would be assessed by a medical practitioner known to the Union. Arrangements were also made for her to undertake alternate duties if assessed as fit to work. On 15 May 2006 Dr A Patrick certified that Ms Bui was unfit for work, and on 14 June 2006 Ms Bui was notified that her compensation claim was ceased, and that any restrictions on her return to work would no longer be regarded as work-related.
32. In oral evidence Mr Krayem said that he has had vast experience in the Discipline Process and Discipline Policy, and had no doubt that the seriousness of the matters concerning Ms Bui warranted Warning Counselling rather than other forms of counselling, and that he was satisfied Ms Bui had been made aware of the issues before she was sent the notice of the counselling interview.
33. Ms Stritthof told the Tribunal that she was appointed as Area Manager, North in September/October 2005 but did not commence duty until 2 January 2006. However she said that in December 2005 she was involved in discussions with Ms Stride and Mr Krayem about aspects of Ms Bui’s performance, and she made the decision to proceed with Warning Counselling. Ms Stritthof explained that the letter informing Ms Bui of the Warning Counselling interview was prepared in accordance with accepted practice, and the four days’ notice to Ms Bui was not unusual. She added that the counselling session could not be held until January 2006 because the pre-Christmas period was busy for the respondent generally, and the Shop in particular.
34. Ms Stritthof disagreed with Ms Doyle’s evidence and said that she attempted to treat the interview as a counselling session rather than a punitive disciplinary measure. She referred to the written record of the interview, which shows that she allowed Ms Bui a further four weeks to obtain documents supporting Ms Bui’s response to the issues raised at the interview. In respect of the books issue, Ms Stritthof said that none of the documents presented by Ms Bui confirmed that the unsold books had been received by the supplier, and the outstanding debt to the supplier was eventually paid. In respect of the stamps issue, Ms Stritthof said that as manager of the Shop Ms Bui should have been aware that the stamp booklets were in the Shop for a lengthy period and had not been accounted for in the correct manner. She stated that the decision by the relieving Shop manager to return the stamps to stock for sale was correct.
35. In respect of the glasses issue, Ms Stritthof said that there was no suggestion that Ms Bui had attempted to obtain money unlawfully, but as an experienced manager she should have known the correct procedure for claiming reimbursement for the purchase of work-related items. Ms Stritthof explained that her decision to reduce the Warning Counselling to Formal Counselling arose because she accepted that there was some confusion about the instruction by Ms Stride at the time. She said that there was no agreement at any time that the counselling would be reduced to Face-to-Face Feedback.
36. On the question of the conduct of a performance review, in Re Inglis and Comcare [1997] AATA 307 Deputy President Breen stated at [19]:
It is inarguable that the proper administration of the workplace requires that the chain of authority take reasonable steps to control and eliminate inadequate performance, inappropriate conduct, tardiness and other negative features where they occur in the performance of office and duties by an employee. Resource to a performance review interview is an appropriate device in the exercise of control of perceived inadequacy of performance or inappropriateness of conduct. The format of the interview, the number and level of authority of the interviewers, the extent of notice to the interviewee of topics to be discussed and of the right to be accompanied by another person will vary according to the perceived seriousness of the matter or matters requiring the interview to be conducted, and of possible outcomes.
37. On the question of the meaning of reasonable in the context of disciplinary action, in Re Choo and Comcare [1995] AATA 350 Deputy President McDonald referred to Repatriation Commission v Webb (1987) 7 AAR 233 in which Beaumont J stated at 237 that reasonable means rationally based, as distinct from irrational, absurd or ridiculous.
38. The Tribunal acknowledges that Ms Bui had begun her career with the respondent as a customer service officer in 1988 and had in 1997 risen to the position of Postal Manager 3 at Northland, a large and busy Shop. There was no evidence of any unfavourable performance appraisal or previous disciplinary action against her. She had enjoyed working for the respondent and had considered the staff as part of her family.
39. Although Ms Bui has made serious claims against certain officers of the respondent about alleged harassment and bullying, the Tribunal accepts the evidence from Mr Krayem and Ms Stritthof that concerns about aspects of Ms Bui’s performance, particularly in relation to the books issue, the stamps issue and the work environment, had been raised informally with her during 2005. She had been asked on a number of occasions to provide documents to support her version of events, and had been unable to locate sufficient documents to explain fully her claims in response to each of the issues. The books issue and the stamps issue had raised serious questions of a possible loss of revenue by the respondent, and as the manager of the Shop Ms Bui had to take responsibility for the actions of her staff.
40. In these circumstances the Tribunal finds that the respondent was acting within the guidelines of the Discipline Policy to arrange a counselling interview under the Discipline Process rather than Face-to-Face Feedback or other less formal procedures, which had already occurred through informal discussions. Mr Krayem is a senior and experienced human resources manager. The Tribunal accepts his evidence that, in view of the seriousness of the concerns and the informal discussions that had already occurred, counselling as part of the Discipline Policy was appropriate. It was designed to address key aspects of Ms Bui’s performance with a view to assisting her to make improvements, and was not irrational, absurd or ridiculous. The Tribunal finds that the disciplinary action was reasonable. Whether that counselling should have been Formal Counselling instead of Warning Counselling is a matter for the respondent, although the Tribunal agrees that the decision of 15 March 2006 to downgrade the Warning Counselling to Formal Counselling was appropriate in the circumstances.
41. In respect of the conduct of the interview, the Tribunal prefers the evidence by Ms Stritthof, supported by the written record of the interview, that the focus of the interview was identification of areas of workplace performance that required attention, and development of a program that included working with a mentor, and attending a skills assessment and appropriate training. The Tribunal does not accept Ms Bui’s evidence that the process was unfair, and does not accept Ms Doyle’s evidence that the process of Warning Counselling was unreasonable or that it included elements of manipulation or racial undertones, or was conducted in a punitive manner.
CONCLUSION
42. For these reasons the Tribunal concludes that the disciplinary action taken by the respondent to conduct a Warning Counselling interview on 13 January 2006 constituted reasonable disciplinary action, so the Tribunal finds that the condition suffered by Ms Bui is excluded from the definition of injury in s 4 of the SRC Act, and consequently she is not entitled to compensation under s 14 or other relevant sections of the SRC Act. Therefore there is no need for the Tribunal to consider the question of liability for permanent impairment.
43. In Hart v Comcare (2005) 145 FCR 29 the Federal Court of Australia held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in s 4(1) of the SRC Act, that disease is not an injury (as defined in s 4(1)), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. In other words, in order for the proviso to apply, it is sufficient that the relevant disease is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances. In view of the Tribunal’s findings regarding reasonable disciplinary action there is no need to consider whether the events of 8 May 2006, when Ms Bui attempted a return to work, contributed to her medical condition.
DECISION
44. The Tribunal affirms the decisions under review.
I certify that the forty-four [44] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Grace Horzitski
Associate
Dates of hearing: 21 and 22 October 2008; 2 and 3 March 2009, 12 and 13 May 2009, 16 October 2009
Date of decision: 20 October 2009
Advocate for the applicant: Mr D Bui
Counsel for the respondent: Ms A McMahon
Solicitor for the respondent: Frenkel Partners
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