Comcare v Parker, Susan Jane
[1996] FCA 678
•2 AUGUST 1996
CATCHWORDS
ADMINISTRATIVE LAW - Occupational Health and Safety Legislation - meaning of 'injury' - injury excludes that suffered 'as a result of a failure to obtain a promotion' - application for promotion - applicant unsuccessful - subsequent debriefing or counselling interview - whether interview part of promotion process.
Safety Rehabilitation and Compensation Act 1988, s4
ADMINISTRATIVE LAW - Appeal from AAT - adequacy of reasons - reasons delivered ex tempore - inability of court to ascertain reasoning upon which decision is based.
Administrative Appeals Tribunal Act 1975, s43; 43(2A); 43(2B)
Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377
Eaves v Eaves and Powell [1956] P 154 at 157
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
COMCARE v SUSAN JANE PARKER
No ACT G81 of 1995
FINN J
CANBERRA
2 AUGUST 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G81 of 1995 DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: COMCARE
Applicant
AND: SUSAN JANE PARKER
Respondent
COURT: FINN J
PLACE: CANBERRA
DATE: 2 AUGUST 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
the decision of the Administrative Appeals Tribunal be set aside; and
the case be remitted to the Tribunal to be heard and decided again.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G81 of 1995 DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: COMCARE
Applicant
AND: SUSAN JANE PARKER
Respondent
COURT: FINN J
PLACE: CANBERRA
DATE: 2 AUGUST 1996
REASONS FOR JUDGMENT
The applicant, Comcare, appeals to this Court under the Administrative Appeals Tribunal Act 1975, ("the AAT Act"), s44 against a decision of the Administrative Appeals Tribunal ("the Tribunal") of 16 November 1995 which, in setting aside a decision of Comcare by way of reconsideration, determined that the respondent, Mrs Parker, had suffered an "injury" within the meaning of that term in the Safety Rehabilitation and Compensation Act 1988 ("the SRC Act"), s4 and was entitled to be paid compensation for a specified period.
The issue before the Tribunal was whether Mrs Parker's injury was excluded from the terms of the SRC Act definition by virtue of the proviso to it. It is convenient at the outset to set out the terms of the s4 definition.
" '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;"
The short issue before the Tribunal was whether the injury sustained by Mrs Parker was suffered "as a result of ... failure ... to obtain a promotion".
To indicate the manner in which this issue arose, the following factual narrative will suffice. On 3 March 1994 Mrs Parker applied for promotion to an ASO5 position in the Joint House Department, this position being one in which she had previously acted on a temporary basis for periods totalling about 4 years. She was interviewed for that position. On 12 May 1994 the selection committee reported to the Secretary of the Department recommending another applicant for the position. The following day the Secretary accepted the recommendation. On 16 May 1994 Mrs Parker was notified of this outcome in the course of a relatively brief interview with two of the three members of the selection committee (the third was absent through illness). This interview was variously described as "counselling" or as a "debriefing". I should note that there was a sharp divergence in the evidence as to the substance of what transpired at the interview.
The following day Mrs Parker commenced sick leave and on 1 June 1994 she completed a compensation claim for work related stress citing 16 May 1994 (the day of the counselling) as the date of injury. Comcare in both its original decision and on reconsideration denied liability to pay compensation on the ground that such injury as she suffered was excluded from the SRC Act definition by virtue of the proviso to the s4 definition.
The Tribunal, as I noted at the outset, set aside the decisions of Comcare and found Mrs Parker to be entitled to compensation. Their conclusion would seem to have been that Mrs Parker's injury was caused - or else was materially contributed to - by the debriefing interview, and that that session was "totally separate to the promotion process itself" so that the SRC Act s4 proviso "does not and cannot apply".
Comcare has appealed from that conclusion, the errors of law it assigns falling under two heads: (1) that the Tribunal's conclusion involved a misapplication of the s4 definition or else was infected either by the Tribunal's having taken into account irrelevant considerations or by Wednesbury unreasonableness; and (2) that it failed to give reasons for its conclusion that the debriefing interview was totally separate from the promotion process.
I should indicate at the outset that I am compelled to the decidedly unhappy conclusion that the second of the errors assigned - inadequacy of reasons - is an inescapable finding here.
Reasons for Decision
At the end of its hearing of Mrs Parker's appeal the Tribunal gave oral reasons for decision. It then provided written reasons, as it was obliged to do pursuant to an AAT Act s43 (2A) request, which reasons:
(a)noted the request;
(b)said that:
"[w]hereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision"; and
(c) annexed a five page transcript of the oral reasons.
No attempt was made to remedy grammatical errors in the oral reasons. This has added to the difficulty in comprehending their burden.
The Tribunal's conclusion on the s4 issue is expressed in the penultimate paragraph of its reasons in the following way:
"We consider that the interview was totally separate to the promotion process itself, so that the exclusion does not and cannot apply as it was agreed that there was a medical condition which was at least caused, to some degree, by that interview."
I cannot with any confidence at all divine what was the process of reasoning that led it to this conclusion.
The AAT Act, s43 (2B) provides:
"Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."
In considering the obligation of a court to provide reasons for decision Gray J for the Full Court of Victoria in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 expressed the view (at 18) that:
"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will ... be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done."
Each of these considerations is in its own way particularly apposite, in my view, to testing the adequacy of the reasons given by the Tribunal: the former because of the appeal to this Court provided by the AAT Act, s44; the latter because of the entitlement of the parties to know the evidentiary
basis of, and reasoning process for, the decision: see the observations of Hill J in Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377 - an entitlement which the AAT Act s43 (2B) itself enshrines.
In the hearing before me counsel for the respondent submitted that the conclusion I noted above could be interpreted in either of two ways. The first is that at least in circumstances where a debriefing interview is neither a formally prescribed and mandatory part of the promotion process, nor a facility requested by an applicant, such an interview of itself cannot properly be said to be part of the promotion process. In other words the interview was an intrinsically separate thing in such circumstances. It is agreed by the parties that Mrs Parker was not formally required to have, nor did she request such an interview.
The second suggested interpretation of the conclusion was that even if ordinarily the debriefing interview should be considered part of the promotion process, the manner in which it was conducted and the content of what was said at it were such as to take it outside of - to make it "totally separate to" - the promotion process. In other words an "abuse of process" occurred which deprived the interview of the character it would otherwise have had.
Faced with the contradictory nature of these possibilities, the respondent submitted that the Tribunal's reasons are consistent with the latter - the abuse of process - interpretation. I should perhaps add that while counsel proposed at least these two possibilities, there may well be others that could be suggested.
As to the first of the interpretative possibilities - that the interview was "intrinsically separate" - I can find no sufficient basis in the Tribunal's reasons to support such a conclusion. The best that could be suggested by counsel were the findings by the Tribunal (a) that the Department's guidelines provided for the counselling on request of unsuccessful promotion applicants; and (b) that the standard practice of the department to provide such counselling as of course to internal applicants was inconsistent with the guidelines. The "correct" procedure in the Tribunal's view was seemingly that of the guidelines. What made it so was not explained.
I am informed that the automatic counselling of internal applicants was characterised before the tribunal as a "standard operating procedure" and, in submission to the tribunal, it was said to be a connected part of the promotion procedure. Comcare was not, in my view, provided with any explicit reason for the rejection of that submission - a submission which, I understand was central to its case in the Tribunal.
If the proper interpretation of the conclusion then be the first of the possibilities I have mentioned - and it is the one its own language appears to suggest - it amounts to little more than a bare assertion. Without further explanation to justify why the interview fell outside the promotion process (hence the SRC Act s4 definition's proviso), it can only be said that there is demonstrated here a clear inadequacy of reasons.
Turning to the other suggested interpretative possibility - that of abuse of process - counsel for the respondent seemed to concede that this could only be rendered an arguable approach if the conclusion quoted above was preceded with the word "Therefore" in parenthesis. This would have the effect of suggesting that the conclusion in some way bore an immediate relationship to the matter which preceded it. That relationship is not self-evident on the face of the reasons.
Be this as it may, it is the case that the Tribunal's reasons demonstrate a preoccupation with the actual conduct of the interview, the matters alleged to have been mentioned at it and of the perceptions these generated in Mrs Parker, and with an event involving another employee prior to the interview. The reasons are sufficiently brief to admit of quotation at length.
Having made its findings on the guidelines to which I have referred above, the Tribunal went on:
"Another matter which is also relevant in here is that for whatever reason the applicant's failure to obtain the position, and whether or not she should continue to act in the position she had held for some two years, was discussed with a subordinate of hers before her interview. It would appear that a Mrs Pumpa, who was also employed in the registry in a subordinate position to the applicant, was ranked above her following the interview. Mr Richardson, who was part of the interviewing panel with Mrs Perrin, said in evidence that he knew that there was ill feeling between the applicant and Mrs Pumpa.
He could not recollect, however, when Mrs Pumpa was interviewed. This, of course, is contrary to the evidence of Mrs Perrin, who says that a deliberate decision was made to interview Mrs Pumpa first because of perceived difficulties. Now, it seems to us that there could be nothing more destructive of a person's morale and self worth than when she knows that a subordinate has not only been interviewed before her, but in effect that subordinate has been asked to give permission as to whether she is to continue in the job she is already doing. Also, there was no approach to the applicant prior to the interview with Pumpa, to ascertain whether that was a course with which she agreed.
It may well have been that if matters had been pointed out to her she would have conceded the point anyway, but it was something which in effect was done without her knowledge or consent. A large part of this matter concerns with what were perceptions coming out of that interview process on the 16th. It would seem that there was very much room for misinterpretation of what was said. It was interesting enough, however, that the applicant complained that she had been told that she was not suitable for further training, etcetera. This is consistent with the notes following the formal selection interview which were made by Mr Richardson.
In those notes, he says of the applicant that she did not convince the committee that she showed the potential and drive to really lift performance. Now, those words, which are replicated again at page 32, the section 37 documents, so it would seem from that, that the inference can fairly be drawn that there was something said to the applicant to the effect that she lacked potential and drive and was unable to lift the level of her performance. It also seems from notes made by Mrs Perrin that the applicant did ask why, if she was regarded as not good enough to do the job, she had been allowed to act in the job for so long, and was told that she was thought to be the best available person in the Department at the time. That corroborates the applicant on that matter. All in all, it would seem that the, are very valid, the comments of Mr Sutton the psychologist, where at the second page of his report, T19, he refers to Mr Richardson's report and says:
I find this sentence, as a psychologist, a dead give away to his underlying attitudes, despite the superficial appearance of simply being an observational statement.
Mr Sutton also goes on:
Others confirm that Mrs Parker was placed into the acting manager's position through no action of her own. She did appear to have difficulties coping with the younger staff who could be difficult at times. Her job was demanding, in that she had to try and teach never-ending labour force. As she was acting, she did not have full authority at all times. It was also observed that her inter-personal style was not always appropriate for coming to terms with staff difficulties. In general, it was commented that she had managed under great difficulty for the past two years.
Mr Sutton continues:
Mrs Parker essentially feels unappreciated for her work; feels used as a result of what she perceives is negative feedback - and we stress the words negative feedback. I believe she has suffered an emotional reaction depression as a result of having been placed in an acting higher duty position for four years performing satisfactorily without negative feedback for that period. She performed that job within the framework of her perception of its role satisfactorily. There appears to be a difference of perception as to the direction that the position and its role is taking. It is clear from the interviewer's remarks that they are focussed on the changing components of the job whereas Mrs Parker is centered on her actual performance over the past four years. There is much room in this difference of opinion for miscommunication on both sides to take place.
And adds:
Ironically, good managers would have avoided this particular crisis in the first place by understanding the unique needs of each individual.
As stated they report - it was on 27 June 1994, and the CMO's report on 23 June 1994, which also referred to unfair handling of situations mattered, that is what I think the tribunal has said earlier, gives the lie to any suggestion of recent invention. With all respect to Dr Sutton he also appears to put his finger on the matter that it is certainly that misconceptions may well have
arisen out of the interview, but there is a sufficient kernal of truth in the material for us to be satisfied that the perceptions engendered in the applicant were not wholly inaccurate. But there is also the matter, as we said, that we regard the way the Pumpa matter was handled, to be handled totally wrongly and calculated to bring about a negative reaction in the applicant."
I should add that the conclusion as to the interview followed on directly from this.
It is Comcare's case that the versions of the interview given by Mr Richardson and Mrs Perrin were in material respects, contradictory of that given by Mrs Parker; that the Tribunal made no findings on these nor did it make any finding on credibility of witnesses and, in the context of these reasons this of itself constituted an inadequacy of reasons. Reference was made to the Copperart case, above.
If it were necessary so to do I would be prepared to find that this particular ground of objection has been made out. However, I do not consider that I need go even this far into the matter. The reason for this is that I am unable to discern in the passages I have quoted a reasoned basis for concluding "that the interview was totally separate to the promotion process".
It may well have been the case that the interview was conducted in a fashion that was less than sensitive to Mrs Parker and that it failed in its supposed purpose of informing and assisting her: I express no opinion on these matters. But while the Tribunal has emphasised both the perceptions that the interview was said to have caused Mrs Parker to entertain and the apparent ineptness of the handling of the Mrs Pumpa matter - and I emphasise that Comcare contests the correctness of these matters - what the Tribunal has not done is to indicate why such matters have led it to the conclusion it has reached.
It is not in my view either appropriate or profitable to speculate about the possible course of reasoning which produced the Tribunal's conclusion. Both the parties and, for that matter, this Court should be able to discern that course from the reasons given. In saying this I am not for a moment suggesting that the mere presence of some doubt, some ambiguity or some parsimony in the reasons given will for that reason render reasons for decision inadequate. Rather what I am saying is that the reasons here are "unduly uninformative" - to adopt a description employed by Sachs J in Eaves v Eaves and Powell [1956] P 154 at 157.
It is with some regret, then, that the appeal must be allowed on this basis and a rehearing ordered. Furthermore, in such circumstances I do not consider it appropriate to venture views upon the other grounds of appeal raised by Comcare.
My orders then are that the decision of the Administrative Appeals Tribunal be set aside and that the case be remitted to the Tribunal to be heard and decided again. I will invite submissions from the parties on whether that rehearing should be conducted on the basis of the evidence that was before the Tribunal when it gave its decision.
I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 31 July 1996
Counsel for the applicant : J Bonsey
Solicitors for the applicant : Australian Government Solicitor
Counsel for the respondent : H Selby
Solicitors for the respondent : Gary Robb and Associates
Date of hearing : 2 July 1996
Date of judgment : 2 August 1996
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