Burrage v Rural Press Limited

[2013] TASSC 43

[2013] TASSC 43

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Burrage v Rural Press Limited [2013] TASSC 43

PARTIES:  BURRAGE, Megan
  v

RURAL PRESS LIMITED trading as THE EXAMINER NEWSPAPER

FILE NO/S:  1104/2012
DELIVERED ON:  16 August 2013
DELIVERED AT:  Hobart
HEARING DATE:  23 May 2013
JUDGMENT OF:  Wood J

CATCHWORDS:

Workers' Compensation – Proceedings to obtain compensation – Determination of claims – Procedure – Procedure before hearing – Whether "reasonably arguable case exists".

Workers Rehabilitation and Compensation Act 1998 (Tas), ss 25(1)(b), 25(1A)(c), 42, 81A.
Workcover Corporation of South Australia v Summers (1995) 65 SASR 243; Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, considered.
St Helens Oysters Pty Ltd v Coatsworth (2007) 17 Tas R 43, followed.

Aust Dig Workers' Compensation [307]

REPRESENTATION:

Counsel:
             Appellant:  C N Dockray
             Respondent:  M Livesey QC
Solicitors:
             Appellant:  C N Dockray
             Respondent:  M+K Dobson Mitchell Allport

Judgment Number:  [2013] TASSC 43
Number of paragraphs:  48

Serial No 43/2013
File No 1104/2012

MEGAN BURRAGE v RURAL PRESS LIMITED
trading as THE EXAMINER NEWSPAPER

REASONS FOR JUDGMENT  WOOD J

16 August 2013

1. This is an appeal by Megan Burrage from a determination of the Workers Rehabilitation and Compensation Tribunal that a reasonably arguable case existed concerning the liability of her employer to pay her compensation by way of weekly payments and the cost of benefits under the Workers Rehabilitation and Compensation Act 1988 ("the Act"). Ms Burrage, the worker, suffered an anxiety condition. The employer disputed its liability on the basis that the case fell within s25(1A)(c), an exclusionary provision applying in respect of a disease which is an illness of the mind or disorder of the mind, such as the anxiety condition in this case, which arises substantially from an employer's "administrative action". The learned Commissioner, Mr R Chandler, held that was reasonably arguable. It was submitted on appeal that a reasonably arguable case did not exist, that the conclusion reached was not reasonably open, and the learned Commissioner had made an error in point of law.

Section 81A proceedings

1. The issue arose in proceedings pursuant to the Act, s81A, which provides a mechanism for an employer to dispute liability to pay compensation. Generally, an employer has an obligation to commence making weekly payments of compensation to a worker following receipt of a claim for compensation, s81. An employer who disputes liability to pay compensation must, within 84 days of receiving a claim for compensation, serve the worker with a written notice that it disputes liability, inform the worker of the reasons for disputing liability, and refer the matter to the Workers Rehabilitation and Compensation Tribunal, s81A(1). The referral must be accompanied by all evidentiary material on which the employer intends to rely at the hearing of the matter, s81A(2). If a referral occurs, as it did in this case, the tribunal must determine whether it considers that a reasonably arguable case exists as to the payment of compensation, s81A(2A). If the tribunal considers that the employer has a reasonably arguable case, the tribunal must determine that compensation is not to be paid by the employer. If there is not a reasonably arguable case, the tribunal is to order that compensation is to be paid, s81A(3). A determination by the tribunal under s81A is not final. Subsequently, the worker or the employer may refer the claim for compensation to the tribunal for determination, s42. The Act makes provision for conciliation, and if the claim does not resolve, a hearing is held resulting in a final determination made by the tribunal.

1. The process under s81A has been described as providing a "relatively speedy process" for assessing whether an employer has a reasonably arguable case. The process allows for the making of a determination and consequential orders of an interim nature pending eventual resolution of the dispute if the unsuccessful party wishes to fully contest the question of liability later. See Walker v J & A Freeman Building Services (2006) 16 Tas R 87, per Crawford J (as he then was) at [22] and [23].

1. Section 81A and the test of a reasonably arguable case leads to a consideration of liability under the Act. An employer is liable to pay compensation, subject to certain exceptions, if, in any employment a worker suffers an injury which is a "disease", including an illness of the mind or disorder of the mind, to which the employment contributed to a "substantial degree", s25(1)(b). This obligation, referred to in submissions as primary liability, is subject to certain exceptions. Compensation is not payable in respect of an illness of the mind or a disorder of the mind which arises substantially from particular actions or decisions of an employer as set out in s25(1A). One of those is "reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment", s25(1A)(c).

1. Section 63 provides for a right of appeal to this Court if any party to a proceeding before the tribunal is aggrieved by a determination or order "in point of law".  If the material before the learned Commissioner necessarily leads to a conclusion that a reasonably arguable case did not exist, then he would have made an error in point of law:  St Helens Oysters Pty Ltd v Coatsworth (2007) 17 Tas R 43 at [15]. See too Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354 per Crawford J at [22] - [28]. To put it another way, if the conclusion reached by the Commissioner was reasonably open, then an error in point of law has not been established.

The proceedings before the Commissioner

1. The worker is employed by the employer as a classifieds clerk for The Examiner Newspaper.  On 21 September 2012, she made her claim.  In that claim, the injured worker's report, she provided the following information:

·     The injury or disease was identified as "stress which caused anxiety, palpitations, panic attacks for the last 1½ months".

·     In relation to the details of what happened, how it happened, and what was involved, it was said: "Pongrass system commenced.  Due to being in hospital for surgery I missed the 2 weeks of training.  I had 3 hours training and came back to work expected to just do it."  It is clear that the worker's reference to the "Pongrass system" is a reference to a new computer system.

·     The date and time the injury or condition occurred, was first noticed, or identified was 1 August 2012, and that she had been on and off work since then. 

1. The worker's claim was accompanied by a workers compensation initial medical certificate provided by Dr Tawhid Wahab.  It provided that he examined Ms Burrage on 10 September 2012.  Her presenting symptoms were anxiety, palpitations, panic attacks, shortness of breath.  The diagnosis was described as "anxiety". In response to the question about the stated cause of the condition it was provided that the worker stated the condition was caused under circumstances involving a "change of computer system at work, increased workload."  The certificate also provided that she would be incapacitated for work from 7 September to 17 September 2012.

1. In the s81A referral, the employer disputed liability to pay compensation on three grounds:

"The reasons for disputing liability to pay compensation are as follows:-

1    The worker has made a claim for anxiety.

2    There is a factual dispute in relation to what the worker has attributed her anxiety condition to in the workers compensation claim form.

3    In the alternative, the worker's anxiety condition arose substantially from the introduction of the Pongrass computer system and therefore arose substantially from reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment."  

1. Only grounds 2 and 3 are relied upon as giving rise to a reasonably arguable case, ground 1 being merely a relevant fact.

1. Commissioner Chandler conducted a hearing on 8 November 2012 in relation to the referral.  The worker's case relied on documents which had been lodged with the referral, the worker's claim form and the accompanying workers compensation medical certificate.  The employer tendered a signed statement from Ms Jane Bowles, its human resources officer, which had also been lodged with the referral.  Also tendered were return to work assessments by Advanced Personnel Management and an email from the appellant.  They expressed a common theme that Ms Burrage had been confronted with a new software system to perform her duties, she was expected to use it, she received inadequate training, and she felt she was unable to finish her work to a high standard given her perceived lack of training. Ms Bowles addressed the issue of training in her statement:

·     On 4 July 2012 a training session was held for all classifieds employees who would be using the Pongrass computer system.  Ms Burrage attended that session.

·     The Pongrass trainers were available onsite from 9 to 13 July 2012 inclusive, and from 25 to 31 July 2012 inclusive for one-on-one support.  Staff were asked to spend time one-on-one with trainers to review the previous training session and seek assistance with things they had not understood.

·     Ms Burrage worked on 9, 10, 11 and 13 July 2012.  She chose not to spend any time with the trainers.

·     Ms Burrage did not attend the training session on 18 July as she was on annual leave. 

·     It is disputed that Ms Burrage missed two weeks of training whilst in hospital.  She missed only two training sessions.  The first session she missed was on 18 July and the second was on 24 July.

·     It is not the case that when Ms Burrage came back to work she was "expected to just do it".  The Pongrass trainers were available to provide one-on-one support and assistance when the Pongrass system went live on 1 August 2012 until 10 August 2012, inclusive. 

·     When Ms Burrage raised concerns with her manager that she was not comfortable using the Pongrass system, a training program was developed for her.  She participated in that program and was also given extra support.

1. At the hearing it was not disputed by the employer that the worker suffered from an anxiety condition, and the employer did not proffer an alternative cause for that condition separate from her employment. In fact, the employer accepted, in line with its grounds for disputing liability, that the worker's illness was attributable to the introduction of its new computer system and its requirement that she use it. It was submitted that the illness fell within the terms of the exclusionary provision in s25(1A)(c) as it arose substantially from "administrative action".

1. There was a factual dispute concerning the worker's account of what happened as set out in her claim form when she said: "Due to being in hospital for surgery I missed the 2 weeks of training.  I had 3 hours training and came back to work expected to just do it."  The dispute concerning the assertions in the claim form and Ms Bowles' account of training has a bearing on the question of the reasonableness of administrative action but not whether the conduct qualified as administrative action. 

1. The hearing proceeded on the basis of the documents I have mentioned. By contrast, at a final hearing there would no doubt be detailed sworn evidence by and for the worker not presented at the s81A hearing. Typically, that evidence would be tested by cross-examination.

1. Submissions were made as to the meaning of "administrative action", with reference to authorities on point.  The Commissioner reserved his decision, and 11 days later delivered written  reasons for  his determination.  He held that it was reasonably arguable that the employer's actions relating to the introduction and implementation of the new computer system qualified, at law, as "administrative actions". 

The Appeal

1. There are five grounds of appeal, all concerning the finding that it was reasonably arguable that the employer's actions qualified as "administrative actions".  The reasonableness of such actions and whether they were taken in a reasonable manner does not arise on the appeal.  It is not necessary to set out the grounds in full.  It is asserted that comprehensive errors of law were made as follows:

·     Ground 1 asserts that the finding was made without "any evidence of any action … that could constitute administrative action".

·     Ground 2 complains that the finding that the "introduction and implementation of its new computer system may qualify as administrative action" was not reasonably open on the evidence. 

·     Ground 3 asserts an error of law in that the finding was made: without having any evidence of or without identifying what the administrative actions were; and, without having evidence of or identifying a reasonably arguable relationship between any such actions and the worker's employment; and, without having evidence of or identifying a reasonably arguable causal relationship between any such actions and the worker's injury.

·     Ground 4 asserts that there was no evidence to conclude that there was a reasonably arguable case that the worker's injury did not arise from the causes asserted by her, that is, from her use of the new system without adequate training, and an increased workload, and those causes could not constitute administrative action.

·     Ground 5 asserts error in that there was no evidence from which it was open to the Commissioner to conclude that it was any particular administrative action in relation to the introduction of a new computer system, as opposed to the worker's use of that system once it was in place, that substantially gave rise to the worker's injury.

1. The essence of the worker's assertion of error of law is that there was no basis for a conclusion that it was reasonably arguable that the employer's relevant conduct, the actions giving rise to injury, qualified as "administrative action".  That is, there was no evidence of any administrative action giving rise to injury, or in connection with the worker's employment, and the causes asserted by the worker could not be regarded as administrative action.  It was submitted that the worker should succeed on this appeal, because on the material before the Commissioner it has been shown that the employer's conduct necessarily falls outside the description of the phrase "administrative action taken … in connection with a worker's employment", and thus, error in point of law has been shown, see Bedelph per Crawford J at [22] – [28].

"Reasonably arguable case"

1. The correct approach to be taken when assessing whether there is a reasonably arguable case is well settled.  In St Helens Oysters at [10], Evans J stated that "A case will not be reasonably arguable unless the case itself is reasonable in the sense that there is a reasonable prospect of the claim being rejected following a final hearing." Later, his Honour stated:

"… the very notion of a 'reasonably arguable case' like the very notion of a 'prima facie case', precludes a final determination of a disputed question of fact: see North Ganalanja (at 639). On the face of s81A, a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected."

It may be noted that a claim may be rejected because primary liability is not established, or because an exclusion, such as s25(1A)(c) applies. The learned Commissioner was well aware of the correct approach to the question of whether the employer had a reasonably arguable case, quoting from St Helens Oysters in his determination. 

1. Assessing whether there is a reasonably arguable case is not restricted to a consideration of countervailing evidence presented by the employer.  As noted by Evans J in St Helens Oysters at [12]: "The employer is perfectly entitled to point to the absence of evidence to show that the worker's disease was caused in circumstances necessary for the substantiation of a claim and to rely on that deficiency to show that a reasonably arguable case exists concerning liability."  Moreover, his Honour noted at [14] that there may be unchallenged material providing a basis for a finding of the application of the exclusion concerning reasonable administrative action.  I add, there may even be evidence from the worker giving support to the employer's position of a reasonably arguable case. 

1. The submissions for the worker mentioned that at the final hearing the worker would have the onus of proving primary liability, and if discharged the employer would have the onus of satisfying the Tribunal that liability has been excluded by virtue of s25(1A)(c). At the stage of s81A proceedings, the Commissioner is required to forecast, on the material before him, the prospects of a claim being rejected. It may be that which party bears the onus of proof would have a bearing on those prospects. I have not paused to consider the issue of the onus in relation to s25(1A)(c). In Sheila Jean Vince v Sims Knipe Maver, unreported, Workers Rehabilitation and Compensation Tribunal, No 299/97, 29 April 1998, Chief Commissioner Mr S Carey examined the issue in the context of s25(1A) of the Act and concluded that the onus was on the employer. There are other decisions of the tribunal and this Court which have proceeded on the assumption that that is the case. On this appeal the issue of the onus was not argued, and I have not had the benefit of submissions. For the purpose of considering the worker's submissions, I shall proceed on the basis, without deciding, that at final hearing it would be for the employer to establish the exclusion has application.

1. The onus may be more readily discharged if there is unchallenged evidence supporting such a finding. The merits of the employer's case and whether there is evidentiary support for it are relevant considerations in determining whether the employer has a reasonably arguable case. Similarly, there may be a paucity of evidence or inherent weaknesses in the material presented by the worker. Again, at a final hearing this may have a bearing on whether an exclusion is established. To state the obvious, the nature of the evidence presented for the worker may have a bearing on whether, at the stage of s81A proceedings, it is evident that there is a reasonably arguable case, ie a reasonable prospect of the claim being rejected.

1. A central question on this appeal is whether it was reasonably arguable that the relevant actions of the employer, giving rise to injury, amounted to administrative action. This question requires consideration of the meaning of the words "administrative action" in s25(1A)(c), and whether the evidence of the conduct attributed to the employer may qualify as administrative action.

Meaning of administrative action 

1. The submissions focussed on two cases which consider the meaning of "administrative action" in workers compensation legislation, a decision of the Full Court of South Australia in Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 and a decision of the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21.

1. Summers was concerned with a worker who had suffered a stress disorder arising from her employment.  She was employed as the manager of a suburban shopping centre.  From the beginning she had experienced a number of difficulties and found difficulty in coping.  There was a particular incident which upset her and she left work. It was not disputed that she had suffered a disorder of the mind caused by stress and that the stress arose out of the employment.  The Full Court of the Supreme Court of South Australia considered the meaning of "administrative action" in a provision which was, in all material respects, identical to the provision in our Act.  Doyle CJ, with whom Prior and Williams JJ agreed, did not exhaustively define the scope of "administrative action" leaving that for another day, and rather confined his consideration to whether the case fell within the meaning of "administrative action".  His consideration is nonetheless of assistance.  He considered that "administrative action" should be given its ordinary meaning.  His Honour stated it was not limited to a particular episode or event and, at 247 that it "would include a course of conduct or general instruction by the employer or a general approach by an employer to a particular job or a particular situation." 

1. Doyle CJ went further in his consideration of the words "administrative action".  He stated at 247 that the words were not wide enough to embrace every instruction of and action by an employer.  The words suggest that "Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties".  At 248, he added, stress "caused by an inability to cope with the requirements of her work, by an inability to cope with the job itself, is not stress which arises from administrative action".  The fact that a worker was given a series of express instructions to perform her work is not enough to bring it within the scope of administrative action. 

1. That analysis by Doyle CJ has not proved to be contentious on this appeal.  He went on to state the following at 248 as part of the reason for reaching his conclusion that stress caused by an inability to cope with the job itself falls outside the exclusion:

"… the expression 'administrative action' is probably intended to apply to decisions or actions by the employer which are in some way related to the workings or functioning of the workplace, rather than to the actual task performed by the worker.  I recognise, of course, that there will be a relationship between the two things."

It is contentious whether this passage applies to s25(1A)(c).

1. The passage is unhelpful to the worker.  It may be that an employer's conduct of introducing and implementing a new computer system is an action relating to the workings or functioning of the workplace, rather than to the actual task performed by the worker.  Thus, if that is the relevant conduct of the employer, it may amount to "administrative action". 

1. The judgment of Doyle CJ in Summers was followed in Abrahams v St Virgil's College (1998) 7 Tas R 423. The phrase "administrative action" was held to be confined in that it did not embrace every instruction given and every action taken, express or implied, which relates to the worker's duties. The particular passage I have quoted and which has proved to be contentious in these proceedings, was referred to at 434, but did not fall for specific consideration.

1. In Reeve the Full Court of the Federal Court considered the phrase "administrative action", occurring as an exception in the definition of "injury" in s5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which provides that an "injury":

"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."

1. Gray J noted at [30] that, "It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer".  At [31] his Honour noted that the use of the word "administrative" in the exclusion is significant. He stated the word must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might be taken with respect to the employment of a particular employee.  Gray J added:

"Such action that is not 'administrative' could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as 'administrative' action, but as operational action with respect to the employee's employment." 

1. It is argued for the worker that to apply that reasoning here, an instruction to use a particular computer system would fall within operational, not administrative, action. Gray J noted at [33] that "legitimate human resource management actions", while inapt, is not far removed from the proper construction of the exclusion.  Matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees.  And further, "It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of 'injury' unless the action taken was not reasonable, or was not reasonably taken."

1. The judgment of Rares and Tracey JJ also attached significance to the fact that the exclusion applied to action taken in respect of the person's employment.  They stated at [57] that the terms of the section in this regard "suggest that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment".  Their Honours observed at [60], that the qualification "in respect of the employee's employment" "suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person's employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job".  Further, their Honours stated:

"That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided 'the nature of, and particular tasks involved in, the employment'. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be." 

1. Reference was made to the judgment of Doyle CJ and his rejection of a wide interpretation of "administrative action".  There was agreement on that point and as to the fact the worker's inability to cope with the requirements of her work was not administrative action.  Later, at [68], there was reference to the contentious observation of Doyle CJ at 248, that the expression "administrative action" in the South Australian legislation was probably intended to apply to decisions or actions taken by the employer that in some way related to the "workings or functionings of the workplace, rather than the actual task performed by the worker". The joint judgment distinguished the judgment of Doyle CJ.  It was noted that the South Australian provision operated "in three scenarios, including that of reasonable administrative action taken in a reasonable manner by the employer 'in connection with the employee's employment.[']  First, the expression 'in connection with' was wider than 'in respect of' … Secondly, the other two scenarios in s30(2a)(b) had to be given distinct meanings from that in s30(2a)(b)(iii)."

1. It was concluded at [69] in the joint judgment that the intention discerned from the Parliament's use of "in respect of" "is to provide a relational context for the administrative action taken and the employee's employment. It is to require that the action be specific to the employee's work or job so that the exclusion can operate harmoniously with the preceding portion of s5A(1) rather than as eviscerative of it …".

1. Like the South Australian provision, s25(1A)(c) of the Act uses the broader phrase "in connection with" and it is one of a number of exclusions which have a function to perform.

1. The question of whether Reeve is to be followed in preference to Summers on this point has not been considered and determined by this Court.  There are arguments that can be advanced for both lines of reasoning.  It can be said that it is not patently clear that Reeve will be followed, noting the grounds for distinguishing it.  

1. It was argued for the worker that, even allowing for the difference in the wording of the provisions,  and that the Tasmanian provision, like the South Australian provision, employs the phrase "in connection with", may simply mean that Summers would be preferred as providing the more authoritative basis for the interpretation of the connection which is required between the administrative action and the employment of the particular worker.  However, it was submitted that does not diminish Reeve as authority for the meaning of "administrative action" and the need to find a causal relationship between the injury and the action relied on by the employer.  On behalf of the worker it was deftly argued that the conflict between Reeve and Summers did not matter in this case and could be put to one side, and that "administrative action" as defined and "refined" by Reeve was to be applied.  

1. For the employer it was argued that it was not necessary to resolve Summers and Reeve.  That was a trial issue and for the purpose of s81A proceedings, Summers was reasonably arguable. Counsel highlighted the case of Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 that was concerned with a staff audit process, and noted that the fact that it was a general audit across the entire workplace did not prevent it from being regarded as administrative action. It was submitted that here, it is reasonably arguable that the way in which the employer introduced the new computer system, with or without adequate training, may fairly be described as "administrative action".

1. The Commissioner had the benefit of submissions with regard to the cases of Reeve and Summers, referred to pertinent passages from the two cases, and highlighted the divergence of approach.  He declined to resolve the question.  He noted that Summers may be preferred despite the persuasiveness of the judgments in Reeve.

1. The Commissioner stated at [12]:

"I need to remind myself that on this application I am unable to make a final determination upon the employer's liability for the worker's claim. Rather I am required, in accord with that test prescribed by St Helens Oysters (supra), to make an interim determination only, namely whether a reasonably arguable case exists. In that context, despite the persuasiveness of the judgements in Commonwealth Bank [Reeve] (supra), I am of the view that it is reasonably arguable that the employer's actions related to the introduction and implementation of its new computer systems may qualify as administrative action so to avail the employer of the benefit of s25(1A)(c)."

1. It is not contended that the Commissioner erred in not resolving the issue.  In my view there are sound and practical considerations which favour the course taken by the Commissioner.  This was not a case involving an unmeritorious legal argument which could be readily dismissed, or an obviously correct argument which could be readily upheld.  The argument before him occurred at an interim stage and the legal issue is likely to receive more comprehensive attention at the final hearing, where arguments would be developed more fully.  A determination at an interim stage would not be binding at the final hearing, and on receiving further argument, he would then be obliged to revisit the legal issue.  At a final hearing he would have the benefit of all the evidence and the issues would be refined and factual determinations made.  There may be inferences to be drawn and nuances of fact that would prove significant in terms of the outcome of this claim.The law may then be determined in light of those factual findings and to the extent required by those factual findings. 

1. Allowing that the Summers approach may be adopted in relation to the meaning of "administrative action", decisions or actions taken by an employer that in some way related to the "workings or functioning of the workplace", rather than the actual task performed by the worker, may qualify as administrative action.  It would seem at face value that the introduction and implementation of a new computer system may qualify as relating to the workings or functioning of the workplace.  Counsel for the worker submitted that errors in point of law had been made, regardless of whether the Summers approach to "administrative action" was adopted and which did not hinge on the Reeve interpretation of those words. 

Other submissions

1. It is argued for the worker that she did not attribute, in her claim, her injury to the introduction of the new computer system. Instead, she attributed her injury to stress arising from her use of the new system, without adequate training, and an increased workload.  It was submitted for the worker that there was no evidence for the employer that it was any particular administrative action in relation to the introduction of the new computer system, as opposed to her use of that system once it was in place, that caused the worker's injury.  The worker's claim is an assertion that the injury arose from her inability to cope with an ordinary aspect of her work.  The essence of the worker's contentions is that there is no evidence, for the worker or the employer, that an administrative decision or direction to introduce and implement a new computer system, or any other administrative process relating to that decision, imposed stresses that substantially caused the worker's injury.  The Commissioner's conclusion of a reasonably arguable case lacked any evidentiary foundation, given that the causes asserted by the worker were her use of the new system without adequate training and an increased workload.  The Commissioner failed to identify any actions relating to the introduction of a new computer system taken in connection with this particular worker's employment that had any causal relationship to her admitted injury.  The submissions emphasised the need for evidence of "administrative action", taken "in connection with" the worker's employment, and a causal relationship with the injury.

Discussion

1. The Commissioner's description of the actions of the employer giving rise to the worker's injury as the introduction and implementation of a new computer system is supported by the evidentiary material that was before him.  It is consistent with the worker's claim form.  She states "Pongrass system commenced".  That may be equated to the introduction of a new computer system. She states "3 hours training" and was expected to "just do it".  That is a reference to inadequate training and may be equated to the manner of implementation of the system.  The Commissioner's description is also in line with the workers compensation medical certificate which refers to the change of computer system.  Contrary to the submission of the worker, the claim need not be regarded as restricting the cause of her anxiety condition to her use of the new computer system, ie work duties, and "increased work load", mentioned in the medical certificate.  To adopt that approach would be selective, and would involve ignoring aspects of the evidentiary material, tantamount to making findings about the cause of the condition.  At this preliminary stage, the tribunal ought to have regard to the entirety of the evidentiary material, including the worker's assertions in order to consider the findings that could properly be made at a final hearing.    

1. In assessing whether the evidence may be regarded as supporting a finding of "administrative action", it is significant that the worker's claim refers to the way in which the new computer system was implemented and managed, and a lack of training or inadequate training.  Applying Summers, the actions of the employer seem to fall within the broad category of the "workings or functioning of the workplace" and a finding may be made, following the hearing of the claim, that those actions were in connection with the worker's employment.  Implementation of a new computer system without training or adequate training for staff may qualify as administrative action in connection with the employment of staff affected.  Thus, it has not been shown that the claim necessarily falls outside the description "administrative action" in connection with the worker's employment. These conclusions dispose of the essence of the appeal.  Grounds 1, 2, 4 and 5 must fail. 

1. That is not to say it is a clear cut issue.  It may be a fine line between whether the actions of the employer are seen as relating to the "workings or functioning of the workplace" and concerning the applicant's employment, or whether they relate merely to the tasks to be carried out by the worker.  Reasonable minds may differ about that. In many ways it is a matter of characterisation, and a determination at a final hearing as to the correct characterisation is likely to turn on findings about detailed aspects of the evidence not yet presented to the tribunal. 

1. It is submitted that the learned Commissioner's characterisation of the cause as the introduction and implementation of a new computer system fails to identify any particular administrative action or actions by the employer. In other words, it does not identify the specific action which was causative of the worker's anxiety condition.  A number of matters may be noted.  An administrative action or actions may properly be seen as inherent in introducing and implementing the new system.  It is not essential, in this case and at this interim stage, to require exact details of the employer's administrative action or actions.  It would be sufficient if it was open to the Commissioner to conclude on the materials before him, that it is reasonably arguable that administrative action or actions broadly identified, such as in relation to training or management of the implementation of a new computer system, resulted in the worker's condition.  Ground 3 must fail. 

1. In conclusion, allowing that at the final hearing the approach in Summers to the meaning of "administrative action" may be adopted, it is reasonably arguable on the material before the Commissioner, that the conduct of the employer relating to the introduction and implementation of the new computer system, including lack of training or inadequate training, qualifies as "administrative action" in connection with the worker's employment.   Further,  there was evidence of a causal link with the worker's anxiety condition.  As I have noted, there is no issue in these proceedings that it is reasonably arguable, depending on the view to be taken of facts in dispute, that the manner of the introduction and implementation of the new computer system may be regarded as both reasonable and taken in a reasonable manner.

1. The conclusion the Commissioner reached as to a reasonably arguable case was open and he was not compelled, given the evidentiary material before him, to reach the contrary view.  No error in point of law has been made out, and the appeal will be dismissed.