Chambers and Comcare (Compensation)

[2016] AATA 615

Chambers and Comcare (Compensation) [2016] AATA 615 (18 August 2016)

Division	GENERAL DIVISION
File Number	2015/1110
Re	John Chambers
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey Senior Member A Poljak
Date	18 August 2016
Place	Sydney

The Tribunal sets aside the decision under review and instead decides that Comcare is liable to compensate Mr Chambers for his psychological condition and his epilepsy.

..................[sgd]......................................................

Senior Member J F Toohey

CATCHWORDS

COMPENSATION – adjustment disorder with depression and anxiety – epilepsy – stress – whether employment contributed to significant degree – whether reasonable administrative action taken in a reasonable manner – decision under review set aside and substituted

LEGISLATION

Safety Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14

REASONS FOR DECISION

Senior Member J F Toohey
Senior Member A Poljak

18 August 2016

Background

1. Mr John Chambers was admitted to legal practice in 1984 and has been employed in the Corporate Affairs Commission, the New South Wales Royal Commission into the Building Industry, the New South Wales Crime Commission and the Federal Office of the Employment Advocate. 

2. From August 1999, Mr Chambers was employed by the Australian Securities and Investment Commission (ASIC).  He has not been employed since 6 June 2014 when he took a voluntary redundancy.

3. On 9 September 2014, Mr Chambers lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for “epileptic and non-epileptic seizures, anxiety and depression and fatigue”.  He attributed his conditions to “sustained tension” from his involvement in protracted litigation conducted by ASIC and “unjustifiable and inappropriate pressure” from senior managers regarding his team members’ performance and his own “alleged poor assessment and demotion”. 

4. Mr Chambers claims that the anxiety, stress and pressure associated with his work for ASIC was exacerbated by the conduct of his managers, Mr Christopher Savundra and Mr George Stogdale, and another officer.

5. It is not in dispute that Mr Chambers’ employment with ASIC contributed to a significant degree to his psychological condition.  Comcare contends, however, that Mr Chambers has not suffered a compensable injury within the meaning of the SRC Act because his condition was the result of reasonable administrative action taken in a reasonable manner in respect of his employment.

6. It is not in dispute that Mr Chambers suffered an onset of epilepsy in late 2013 which led to his admission to hospital in November 2013.  Comcare contends, however, that his employment did not contribute to a significant degree to his condition.  For convenience, we will refer to this as Mr Chambers’ neurological condition. 

   Legislation

7. By s 14 of the SRC Act, Comcare is liable to compensate an employee for an injury that results in incapacity, impairment or death.

8. By s 5A(1), injury in the SRC Act 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.

9. By subsection 5B(1), 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.

10. Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development), and aggravation includes acceleration or recurrence: s 4.  We are satisfied that Mr Chambers’ conditions are diseases for the purposes of the SRC Act.

11. Significant degree means a degree that is substantially more than material: subsection 5B(3).

12. In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, the matters set out in subsection 5B(2) may be taken into account.

    Relevant events

13. Mr Chambers was employed as a senior lawyer in the Enforcement branch of ASIC’s Sydney office.   He had worked on the HIH Insurance investigation and prosecutions, and on the James Hardie investigation and subsequent litigation.  During this time, he commenced in the role of senior manager of the Corporations Branch of Enforcement.

14. From 2007 to 2013, Mr Chambers was a senior manager in the Corporations and Corporate Government (CCG) Enforcement branch and managed a team responsible for the day-to-day litigation in the James Hardie case.  The litigation involved proceedings in the Supreme Court of New South Wales, New South Wales Court of Appeal and the High Court. Final judgment was delivered in November 2012. 

15. Although Mr Chambers says his work on the James Hardie matter involved considerable stress, there is nothing to suggest that he suffered any psychological condition in the years leading up to the end of 2012. The limited information we have about his performance reviews shows that, since July 2007, he had consistently been rated as “Satisfactory”, “Achieving” or “Exceeding”. In 1999, he received the Employment Advocate’s Achievement Medal for his work in that office.  In January 2004, he received a National Australia Day medal for his role as Assistant Director of Enforcement with ASIC.  In January 2013, he received a National Australia Day medal for his work on the James Hardie litigation.

16. The CCG team comprised two teams of approximately 10 staff each, one managed by Mr Chambers and the other by AA.  Staff worked across both teams.  There had apparently been some tension between the teams for some time, the reasons for which are not clear on the information before us.  Nor is it clear who was responsible for the tension, other than one or two team members who apparently caused a problem on some occasions.  We discuss this further below.

17. From October 2011 until July 2012, Mr Savundra was Mr Chambers’ immediate manager.  In July 2012, Mr Savundra was promoted and Mr Stogdale took his place.  Mr Savundra retained overall responsibility for the team.  Mr Stogdale was located in the Melbourne office but would visit the Sydney office approximately once a fortnight. 

18. Giving evidence before the Tribunal, Mr Savundra described the James Hardie litigation as among the most complex ever undertaken by ASIC.  He and Mr Stogdale agreed that Mr Chambers had excellent legal and technical skills and experience, but they considered his “people management skills” to be not as strong.  The basis for their opinion is not clear from the evidence before us, at least not before late 2012 when an issue arose concerning BB, a member of Mr Chambers’ team who had been working mainly in AA’s team.

19. In about September 2012, AA received an anonymous note alleging that BB frequently arrived late for work and was absent from the office during the day.  Mr Chambers and AA met and agreed that, because the allegations in the note were anonymous, they would not “escalate” the issue at that time but would “keep an eye on it”.  Around this time, Mr Chambers and AA also had discussions about their team members’ performance ratings.  Mr Chambers describes his working relationship with AA as “amicable” up until December 2012, and emails between them around this time concerning matters including BB’s attendance appear entirely professional and cooperative. 

20. A puzzling feature of the evidence in this matter, in light what transpired from around December 2012, is the absence of any documents up until that time which suggested that Mr Chambers’ performance was wanting in any respect.  From around January 2013, however, his performance was apparently of concern.  In particular, his management skills, his working relationship with AA, and tensions between their teams were of concern.  Mr Savundra gave evidence that he been talking about these issues to Mr Chambers since sometime in 2011 but Mr Chambers disputes this. 

21. In a written statement of evidence, Mr Stogdale said that, around September 2012, he became aware, from discussions with employees and his own observations, that there was “an uneasy working relationship” between Mr Chambers and AA, and there had been “a number of conflicts” between members of their teams.  In documents dating from January 2013, Mr Stogdale refers to tensions, harassment and bullying, but the precise nature of these claims did not become clear during the hearing.  Both Mr Savundra and Mr Stogdale seemed unable, or unwilling, to detail their concerns, and AA was not called to give evidence. Given what occurred from around December 2012, the lack of documentation of concerns about Mr Chambers’ performance seems surprising.  We are left with the impression that all was not well, but the reasons, and who was responsible, remain obscure.

    The meeting on 13 December 2012

22. In emails in the first week of December, Mr Chambers and Mr Stogdale discussed proposed performance ratings for BB and CC, and Mr Stogdale emphasised that Mr Chambers and AA had to talk and manage their teams together.  He referred to CC “in effect bullying [AA]” and indicated that Mr Chambers should ask AA about a “recent incident”.  Details of this incident and the alleged bullying did not come out in evidence before the Tribunal.

23. On 13 December 2012, Mr Savundra, Mr Stogdale, Mr Chambers, AA, and DD from the People and Development section, met to discuss matters including a possible restructure of the section, performance ratings, and BB’s attendance.

24. Giving evidence, Mr Chambers described this meeting as “heated”.  Mr Savundra did not agree, preferring to describe the discussion as “animated” and “robust”, but Mr Stogdale agreed with Mr Chambers’ description.  We accept that the meeting became “heated”.

25. Mr Chambers gave evidence that he felt pressured by Mr Savundra and Mr Stogdale to give ratings of “Improvement required” to BB and CC, both of whom were in his team but had been working in AA’s team.  BB’s attendance and CC’s conduct towards AA seemed to be of concern but, except for BB’s attendance, the basis for the proposed ratings was not clear from Mr Savundra’s and Mr Stogdale’s evidence to the Tribunal. 

26. Mr Chambers did not agree with the proposed ratings, which he considered had unwarranted adverse connotations, and he asked for evidence before taking the matter up with the staff concerned.  Giving evidence, Mr Savundra maintained that no negative connotation attaches to a rating of “Improvement required” but there can be little doubt that it indicates that performance is wanting in some respect. 

27. When the note concerning BB’s attendance was raised, Mr Chambers declined to speak to her about it without some information to substantiate the allegations, and he suggested that swipe card records would substantiate her arrival times.  Giving evidence, Mr Savundra described Mr Chambers’ approach as overly “legalistic” and likely to “escalate” the problem; he thought that, as her manager, Mr Chambers should have been able to confirm there was no basis to the allegations without resorting to “evidence”.  As it happened, AA told the meeting that she thought she had a record of BB’s attendance and said she would produce it. 

    January 2013

28. In January 2013, AA produced a note purporting to show dates and times of BB’s late arrivals and absences.  There appears to be no dispute that her record proved almost entirely wrong, either because AA was not in the office herself on those days, or because BB was on leave at the time. 

29. It does not appear that AA attracted any criticism on account of her inaccurate record, and the question of BB’s attendance seems to have evaporated. Giving evidence, Mr Savundra and Mr Stogdale agreed that nothing adverse was ever established, and no action was taken, in respect of BB’s attendance.  In late January or early February, Mr Chambers rated her performance as “Satisfactory”. 

30. On 21 January 2013, Mr Stogdale sent Mr Chambers an email with the subject heading “Our discussions last week”.  It is reproduced almost in full below:

    John

    I said I would think about a  plan of action to assist you (and [AA]) to move forward, so I have come up with the following. The core of improving the management of the team is improving the relationship between you and [AA], and I have tried to expand on the issues we discussed, and then identify other things including actions that flow from them and how you may deal with them. Please consider and can we discuss with Chris this week?

    In the meantime have you decided whether you will speak to [AA] about the “times” note?

    Before covering what I see as issues and strategies to improve the situation in CCG Sydney I want to be clear on what I see as fundamental accountabilities of all Senior Managers. At present these are not being fully met.

    ·providing cohesive and effective leadership across the teams

    ·jointly resourcing and prioritising cases and generally managing the staff on a day-to-day basis

    ·communicating openly and effectively in real time about issues

    ·living the ASIC values and demonstrating this to the staff

    ·encourage staff to live the ASIC values and eradicate bitchiness and backstabbing, harassment, bullying

    ·adopt a zero tolerance attitude to poor behaviour by team members

    ·with your colleagues, actively manage any underperformance within the team and make staff accountable for their performance

    ·build skills and capacity within the team

    ·set challenging goals for the staff to investigate matters in a timely manner

    ·encourage staff to explore new/more innovative ways to investigate matters

    ·regularly advise and discuss with your other SMs and SEL how you are managing the staff as set out above and suggest initiatives to improve staff/team performance and satisfaction

    I believe the following are issues that need to be dealt with immediately by both you and [AA]

    ·Lack of trust and respect between you and [AA]

    ·lack of staff respect for management of the CCG Sydney team as you and [AA] do not work closely together

    ·disharmony bullying and lack of respect among various team members

    ·staff perception that underperformance and poor behaviours are not being dealt with

    ·staff perception that they are not valued, respected or treated fairly/equally

    ·poor staff morale and loss of focus on achieving outcomes

    ·setting mutually agreed challenging goals for the staff that focus on outcomes and where average time for cases is reduced

31. Mr Stogdale’s email concluded indicating that these matters would be dealt with in various ways including by Mr Chambers meeting daily with AA, weekly or fortnightly meetings with staff for feedback about performance and so on.

32. Mr Chambers replied by email on the same day, asking Mr Stogdale for details of the “fundamental accountabilities” that were “not being met”.  He questioned the need for more regular meetings with staff and asked for “a clear indication” of the basis of one matter in particular “as a matter of fairness”.  There followed an exchange of emails in which Mr Stogdale said that much of what was in his email came from their discussion the previous week and “staff feedback over the last few months”.  He proposed that he and Mr Chambers meet when he was in Sydney on 23 January 2013.

33. Mr Chambers is adamant that Mr Stogdale did not give him clarification or any further details of the matters in his email of 21 January 2013.  He agrees that he had met by video link on 16 January 2013 with Mr Savundra and Mr Stogdale but he denies they discussed the assertions in Mr Stogdale’s email of 21 January 2013.  He agrees that he and Mr Stogdale met on 23 January 2013 but says Mr Stogdale did not inform him then or later, of details of the criticisms said to have been made of his performance. 

34. Mr Stogdale gave evidence that he and Mr Savundra, together with DD, discussed with Mr Chambers and AA on a number of occasions how to “manage, address and resolve conflict issues” between their teams.  He referred to his handwritten notes of discussions with Mr Chambers on 27 September 2012, 30 October 2012 and 8 November 2012. However, on our reading of them, although the notes refer to a number of staff issues, including a reference on 30 October 2012 where Mr Stogdale suggested a “joint meeting approach … [for] when staff bitch to them”, they do not document particular concerns about Mr Chambers.

    February 2013 mid-point performance review

35. At a meeting on 5 February 2013, Mr Stogdale advised Mr Chambers that his performance had been rated “Improvement required” for the purposes of his mid-point rating review.

36. A copy of Mr Chambers’ Mid-point Assessment Performance Agreement is before the Tribunal.  It contains few details.  Most sections are either blank or completed in generic terms.  Under the rating “Improvement required”, Mr Stogdale has written:

    John does not believe that any of the existing disharmony in the team and between himself and [AA] is in any way shape or form, his doing. But he accepts that the team needs to be improved in terms of their relationships and harmony and that [AA] and he need to improve their relationship. This is the primary issue to be dealt with this next half. Otherwise John’s work and that of his team is good.

37. In a section for Employee Comments, Mr Chambers has written that he does not accept that the rating is “justified or justifiable”.  He sets out his reasons and states that “there has been no meaningful attempt” to identify the nature and cause, of the disharmony, or the generalisations being made. He repeats his claim that at no time has anyone brought to his attention any specific assertion or evidence regarding any action of his that has contributed to any disharmony.  A section headed “Manager Comments” is blank.

38. Mr Chambers gave evidence that he was shocked at the rating.  On 12 February 2013, he sent an email to Mr Stogdale and Mr Savundra expressing his concern about his rating and asking for more detailed reasons. 

    March – April 2013

39. On 12 March 2013, when he had not had a response from Mr Savundra or Mr Stogdale to his email of 12 February 2013, Mr Chambers returned his 2013 Australia Day achievement medallion with a letter explaining that, in light of his performance rating, he could not “in good conscience” keep it. 

40. On 2 April 2013, Mr Stogdale advised Mr Chambers that he was being transferred to a position of Senior Specialist in the Chief Legal Office, a position that had no staff management responsibilities.  It is common ground that the position did not exist previously, but nothing turns on this for present purposes.

41. Although he retained his salary and benefits, Mr Chambers regarded the transfer as a demotion.  He was particularly aggrieved to learn that AA, who was also transferred at level from her position, would still be managing staff.  He does not dispute that it is open to an employer to transfer staff but says he should have been consulted before the decision was made and that proper processes were not followed.

42. Mr Savundra and Mr Stogdale dispute Mr Chambers’ claim that proper processes were not followed. They acknowledge that they did not consult with him before deciding to transfer him but say there was an urgent need to change the culture in the teams, and they had consulted a mediator who had advised there was no point in attempting to mediate “in the circumstances”.  Again, why the situation was so serious and urgent, is not readily apparent from the evidence.

1. Mr Chambers sought various forms of review of the decision to transfer him, including within ASIC and in the Fair Work Commission. His complaints failed except in one respect, being his complaint that Mr Stogdale had commented that the team was not “a sheltered workshop”. 

2. Mr Chambers was absent from work in November 2013 when he was admitted to hospital with what was ultimately diagnosed as epilepsy (see below). He returned to work intermittently in December 2013 and January 2014 but stopped working out of concern for his health.  In June 2014, he accepted a voluntary redundancy.  He has not worked since.

   Mr Chambers’ psychological condition

3. In November 2014, Mr Chambers saw a psychiatrist, Dr Inglis Howe Synnott, for assessment.  He told Dr Synnott he first developed significant psychological problems in December 2012 as a result of the actions described above, and had been on anti-depressant medication since consulting a psychiatrist in September 2014. Dr Synnott diagnosed Mr Chambers as suffering from adjustment disorder with anxiety and depressed mood.

4. Based on the history given by Mr Chambers, Dr Synnott concluded that his seizures were “the major factor” in his psychological condition but said it was beyond his expertise to say whether workplace stress contributed to their development.

5. Dr Andrew McClure, psychiatrist, who saw Mr Chambers for assessment in May 2015, agreed with Dr Synnott’s diagnosis. He thought it likely that Mr Chambers’ epilepsy “exacerbated substantially” his psychological condition, which in turn had been precipitated by his employment with ASIC. 

6. As already noted, Comcare has accepted that Mr Chambers’ employment contributed to a significant degree to his psychological condition. 

   Mr Chambers’ neurological condition

7. On three occasions in the six weeks or so leading up to November 2013, Mr Chambers found himself unable to recall how he came to be where he was, and not knowing what he was doing.  On 9 November 2013, his wife found him awake in bed but unresponsive.  He was admitted to hospital.

8. It took some time for doctors to identify the cause of Mr Chambers’ symptoms.  Following scans and tests over several months, and consultations with specialists, he was diagnosed with epilepsy.  By mid-2015, his symptoms abated.  His epilepsy is not in dispute but the extent to which, if at all, his employment contributed to his condition, in particular, the interaction between his workplace stress and the onset of his condition, remains in dispute. 

   Did Mr Chambers’ employment contribute to a significant degree to his epilepsy?

9. There is no evidence to suggest that Mr Chambers suffered from any psychological condition before the end of 2012, or any significant physical ailments other than sleep apnoea, before the end of 2013. 

10. The interaction between Mr Chambers’ psychological condition and the onset of his epilepsy appears complex.  Dr McClure and Dr Synnott both acknowledged that the role of workplace stress in the onset of epilepsy was outside their expertise.  However, Dr McClure said that extensive literature suggests a complex and possibly “bidirectional relationship” between epilepsy, and anxiety and depression.  Citing several studies, he said there is “much consensus” on the psychological consequences of epilepsy and it was “certainly possible” that Mr Chambers’ psychological injury had aggravated an underlying “epileptogenic process” and, in turn, that the diagnosis of epilepsy had exacerbated his adjustment disorder.

11. Dr John O’Neill, neurologist, saw Mr Chambers six or seven times between August 2014 and March 2016.  He provided written reports and gave oral evidence.  In a report dated 1 October 2015, Dr O’Neill stated that he did not accept that stress can “cause or accelerate an underlying pathological process causing neurocognitive impairment or epilepsy” but he was “firmly of the view” that seizures are more likely to occur, and neurocognitive function is likely to be less effective, in the setting of stress especially if associated with impaired sleep.  He therefore concluded that “work stress experienced by Mr Chambers could aggravate (render more symptomatic) his neurocognitive impairment and epilepsy”.

12. Dr O’Neill gave evidence, which we accept, that there must be pathology in the brain for epilepsy to occur.  There is no evidence clearly establishing when, or why, that pathology emerged in Mr Chambers but we are satisfied, on the evidence before us, that it is more probable than not that the stress associated with his employment aggravated, or made symptomatic, an underlying condition or vulnerability.  We accept the submissions for Mr Chambers that we can reasonably infer, in the circumstances that, his employment contributed to a significant degree to rendering his predisposition, or previously asymptomatic condition, symptomatic. 

    Were Mr Chambers’ conditions the result of reasonable administrative action taken in a reasonable manner?

13. For the purposes of subsection (1), subsection 5A(2) provides that reasonable administrative action includes, but is not limited to:

    (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.

14. For Mr Chambers it is conceded that the actions on which Comcare relies, namely the performance review and the decision to transfer Mr Chambers “may fit within” the description of administrative action.  However, it is submitted that neither was reasonable administrative action and neither was taken in a reasonable manner.  For the reasons that follow, we agree.

    The mid-year review

15. ASIC documents relevant to performance reviews include the Performance Management Policy 2013, Performance Management Framework and the Enterprise Agreement 2011 – 2014.

16. The Enterprise Agreement and Performance Management Policy 2013 show that salary advancement and other rewards will be determined on the basis of an employee’s performance.  The Performance Management Policy 2013 states that the policy embodies a “clear and transparent process which is applied consistently across ASIC”. “People leaders” are responsible for “clearly communicating performance expectations and measures at the beginning and throughout the cycle” and providing “continuous feedback and coaching” to help employees achieve expectations.

17. Mr Savundra’s claim that he had discussed his concerns about Mr Chambers’ performance and management of his staff with him since 2011 is not supported by the sort of documentary evidence that could reasonably be expected if a senior manager’s performance is wanting to the extent suggested by the performance rating given in February 2013 and the decision to transfer Mr Chambers shortly thereafter.  Moreover, Mr Savundra’s concerns appear at odds with Mr Chambers’ performance ratings up until that time.

18. Mr Savundra gave evidence that, during 2011 and 2012, he became aware from his own observations and discussions with staff members that there was “conflict, disharmony and dissatisfaction” in the section, particularly between members of Mr Chambers’ and AA’s teams.  He gave evidence that he observed that communication between Mr Chambers and AA was “poor” and not what he would expect of senior managers, and he became concerned about the effect on the operation and performance of the section generally; and during 2012, he and Mr Stogdale provided “ongoing feedback and guidance” to both managers about this.   

19. We would not expect a record of every discussion between senior managers but we would expect some record if concerns about Mr Chambers’ performance were as serious as Mr Savundra says.  Mr Savundra and Mr Stogdale agreed they made no notes of discussions.  Mr Stogdale made three notes of discussions with Mr Chambers but nothing concerning these issues. 

20. The first record of concerns is Mr Stogdale’s email of 21 January 2013 which suggests an urgency and seriousness that is not easily reconciled with the absence of documentary record up to that time.  While apparently detailed, it provides no details of the disharmony between Mr Chambers and AA or of his failings as a manager, and neither Mr Savundra nor Mr Stogdale provided the Tribunal with examples of either.  It is reasonable, for example, to expect some detail of instances of the bullying and harassment referred to in Mr Stogdale’s email.

21. Giving evidence, Mr Stogdale agreed he did not provide any further detail in response to Mr Chambers’ request for more information, and said he did not feel it was necessary after his discussion with Mr Chambers.  In other circumstances, that might be a reasonable response but the Tribunal is still without any clear idea of what the particular concerns were, beyond generalities. 

22. It is possible that Mr Chambers took a pedantic and inflexible approach to the allegations against his team members and about his own performance, for example by insisting on evidence before confronting BB about her attendance. If so, however, it was not unreasonable when, ultimately, there was apparently no foundation for AA’s claims.  It is also possible that Mr Chambers was somewhat inflexible in response to criticisms that he perceived as unwarranted, and his management style was no doubt different from that of Mr Savundra and Mr Stogdale, but there remains an absence of clear evidence about how his performance was wanting.    

23. The mid-year performance review document lacks any detail.  Mr Stogdale’s comments on the assessment form show that Mr Chambers acknowledged that improvements were needed in relation to communication between members of the teams and between him and AA, and giving evidence, Mr Chambers conceded that some improvements were needed.  However, we accept that the rating “Improvement required” came as a shock to him and the absence of prior notice meant he was not afforded a real opportunity to respond and improve his performance if that was necessary. 

24. For these reasons, we are not satisfied that Mr Chambers’ mid-year performance assessment was reasonable administrative action and, in any event, we are not satisfied that it was taken in a reasonable manner. 

    The transfer

25. It is arguable that the decision to transfer Mr Chambers was not administrative action but, rather, a reassignment of duties without any loss of benefit.  On its face, it does not appear to have the same remedial or corrective character as the other matters in the (non-exhaustive) list in subsection 5A(2). 

26. If the decision to transfer Mr Chambers was not administrative action, the exclusionary provision does not apply.  However, in the context in which it occurred, being to remedy an apparent problem in the teams, we think it is probably capable of being seen as administrative action of the purposes of subsection 5A(2).

27. There can be no doubt that managers have a right and a responsibility to deploy staff according to an agency’s operational requirements.  They are not required to consult staff beforehand although there will likely be fewer problems if they do. 

28. However, there is no evidence before us to suggest that Mr Chambers was transferred for operational reasons, for example to better manage workloads.  Rather, his transfer was to deal with what Mr Savundra and Mr Stogdale considered the urgent need to change the culture in the teams, largely on account of his performance.  It is still not clear to us how much of that was attributable to Mr Chambers, and the mid-year performance assessment does not identify any improvements required or further development in order to achieve them. 

29. If the transfer was implemented in order to manage a real or perceived problem with Mr Chambers’ performance, he should have been given a real opportunity to improve even if no detriment such as a reduction in salary attached to the transfer.  

30. In all the circumstances, and assuming that the decision to transfer Mr Chambers can properly be characterised as administrative action for the purposes of the SRC Act,  we are not satisfied that it was reasonable administrative action or that it was taken in a reasonable manner. 

    Conclusion

31. We are satisfied that liability for Mr Chambers’ psychological condition is not excluded by reason of it resulting from reasonable administrative action taken in a reasonable manner in respect of his employment.  We are satisfied that his employment contributed to a significant degree to his epilepsy.  To the extent, if at all, that his epilepsy was the result of those actions, liability for his injury is not excluded.

32. For these reasons we set aside the decision under review and decide instead that Comcare is liable to compensate Mr Chambers for his psychological condition and his epilepsy.

I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey, Senior Member A Poljak

......................[sgd]..................................................

Associate

Dated 18 August 2016

Date(s) of hearing	14-17 June 2016
Counsel for the Applicant	Mr L Grey
Solicitors for the Applicant	Turner Freeman Lawyers
Counsel for the Respondent	Ms R M Henderson
Solicitors for the Respondent	Lehmann Snell Lawyers