Costantine and Comcare (Compensation) - [2015] AATA 645

Costantine and Comcare (Compensation) [2015] AATA 645 (28 August 2015)

Division

GENERAL DIVISION

File Number(s)

2013/3111

Re

Bernadette Costantine

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr Peter Taylor SC, Senior Member

Date 28 August 2015

Place Sydney
The decision under review is affirmed.
...........................[sgd].............................................
Mr Peter Taylor SC, Senior Member
CATCHWORDS
WORKERS COMPENSATION – “injury” – definition – exclusionary provision – reasonable administrative action taken in a reasonable manner in respect of employee’s employment – aggravation of pre-existing major depressive disorder– multiple causes – changes to workplace team and employee duties - failure to obtain higher duties opportunities – whether any of causes capable of falling within exclusionary provision - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A(1), 5A(2), 14
CASES
Comcare v Martinez (No 2) (2013) 212 FCR 272; (2013) 137 ALD 481; (2013) 302 ALR 608
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; 125 ALD 181; [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Konstandopoulos v Comcare [2014] AATA 741
KRDV v NAB [2011] AATA 210
Re Thompson and Comcare [2012] AATA 752
REASONS FOR DECISION
Mr Peter Taylor SC, Senior Member
28 August 2015

Ms Costantine is a level 6 officer in the Australian Public Service. On 20 February 2013 she lodged a claim for an injury described as “anxiety and aggravation of depression relating to work management issues”. The description suggests her injury involved various events, and was not solely linked to any specific occurrence. In her application Ms Costantine claimed she first noticed her condition on 19 September 2012, while she was reading work emails. She said it was not until 14 February 2013 she first sought medical treatment. (It was only on 15 February 2013 that she notified her claim intention.) The submissions advanced on her behalf in the present proceedings said that her injury had relevantly occurred by 5 November 2012. That date was based on the proposition, contradicting the information in her claim form, that she first sought treatment on 5 November 2012. The Applicant’s submissions ultimately identified this as the critical date when Ms Costantine relevantly suffered her illness.
Comcare, in its 23 April 2013 decision, and more particularly its 25 June 2013 affirmation, and its stance in the present review proceedings, accepted that Ms Costantine had a psychological illness significantly contributed to by her employment. However, Comcare characterised the “work management issues” alluded to in Ms Costantine’s injury description as including both (i) her failure to obtain “higher duties" roles, and (ii) her changed work allocations, mainly after about May 2015. Comcare attributed both matters to conduct that constituted “reasonable administrative action”. An injury suffered “as a result of reasonable administrative action taken in a reasonable manner” is (conditionally) excluded from the definition of injury for the purposes of s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”). Such an injury would not entitle Ms Costantine to any compensation under s 14 of the SRC Act.
Ms Costantine has worked at the Australian Taxation Office (“ATO”) since 1984. From early 2011, until February 2013, she was based at the ATO’s Parramatta office. There she was ultimately part of the Business Issues and Incident Management (“BI&IM”) team. That team had particular functions, relating to the operation and maintenance of information systems, within an administrative unit the ATO argot identified, somewhat variably, as either “Business Change & Issues Management”, Operations”, “Business Change & Issues Management team” or simply “Business Change & Issues Management”. (For the sake of simplicity I will use the expression “BCIM” to include all three of these varying descriptions.) I note that sometimes (in the documents) even the terms BCIM and BI&IM were used interchangeably.
Ms Costantine’s role, at least in the early part of 2012, was as a support person for the BI&IM team leader and the business analysts involved in the team’s information systems work. Her more specific tasks principally involved reporting on the focus of the team’s activities and its work performance. Those management type reports concerned the recording, management and remediation of information system issues across a range of ATO activities. The BI&IM team leader at Parramatta was Ms Maureen Slattery. She reported to the, Canberra based, team “director” - Mr Frank Curcio. Ms Costantine said the conduct of those officers was responsible for her anxiety and depression. Underlying her assertion was a general complaint that she had been progressively deprived of meaningful work, her work had been redirected to other personnel, and she had ultimately been isolated, and excluded from the work team.
THE SUBSTANCE OF MS COSTANTINE’S COMPLAINTS
For very many years prior to 2013 Ms Costantine suffered from depression and had received regular psychiatric treatment (involving both medication and counselling). There is no suggestion this condition, or its treatment, affected her work performance. Indeed both Ms Slattery and Mr Curcio (whose perspectives I set out below) were complimentary of Ms Costantine’s ability and industry. When Ms Costantine sought medical treatment relevant to the present matter (in February 2013) she reported what her general practitioner recorded as “a perceived feeling of co-ordinated workplace harassment or bullying”. In the history noted by the doctor (and contrary to the detail in her April 2013 claim form), Ms Costantine marked that perception as having been triggered by the events after 29 and 30 October 2012 (ie the date of the leave “cancellation” incident I discuss in paragraph 139 below).
Despite the evidentiary focus suggested by the February 2013 medical report, written statements Ms Costantine provided for the hearing addressed a wide range of matters from April 2012 through to February 2013. These matters included
(a)generalised complaints about the allocation of part of her work functions to other team members, and about being excluded from senior leadership meetings
(b)particular events that occurred
(i)       on about 18 July 2012 – an allegedly unfair reprimand about workplace correspondence
(ii)      30 October 2012 - a disagreement about the approval of her proposed leave arrangements
(iii)     5 November 2012 - the appointment of an executive level officer as the “project lead” for a particular work project
(iv)     4 & 5 December 2012 - a dispute about the allegedly preferential allocation of higher duties to another officer, and a related discussion with Ms Slattery
(v)      5 February 2013 - Mr Curcio’s allegedly inappropriate behaviour during a meeting where Ms Costantine outlined her complaints to him and Ms Slattery.
THE SCHEDULE OF EVENTS AND CONDITIONS
In mid March 2014 the Applicant’s solicitors had lodged with the Tribunal a one and half page document entitled “Statement of Facts, Issues and Contentions”. The document was cast in general terms and made no meaningful contribution towards identifying the matters that really fell for determination in the review proceedings. The inadequacy of the document was compounded by its description of “facts” by reference to “the Applicant’s Statement”. This was an ambiguous reference because the Applicant had two statements - a discursive 47 page statement dated and signed 16 January and a shorter statement dated 31 March 2014.
In an endeavour to focus on the matters of real significance, and identify the material relevant to them, I directed the Applicant (i) to indicate which of her two written statements was to be relied on, and (ii) to provide a Schedule listing, in chronological order, the specific matters on which she relied. The Schedule had to contain a brief summary of the Applicant’s contention in relation to each matter, and a reference to the substantiating material. I directed the Respondent to contribute to the final form of the Schedule - by supplementing it to include similarly brief statements of its contentions and identifying relevant evidence.
In response to my direction the Applicant elected not rely on her 47 page statement. The parties co-operated to produce the Schedule I had directed. It listed 27 matters (18 on or before, and 9 after, the 5 November 2012 date). In the course of submissions, the Applicant added another matter. Most of these matters were the subject of cross examination and submissions. I have made findings about all of them (other than those that occurred after 5 February 2013) in these reasons.
The exercise of preparing the Schedule did not focus the conduct of the Applicant’s case in the way I had intended. Many of the listed matters did not merit any significant consideration. The validity of that proposition emerged belatedly, including in the Applicant’s own written submissions. More timely discrimination in the preparation of the Applicant’s case, including in the content of the Schedule, would have assisted the Tribunal greatly.
THE APPLICANT’S WRITTEN SUBMISSIONS
The main points made on Ms Costantine's behalf in the written submissions can be summarised as follows:
(a)it is not disputed that Ms Costantine suffered from a diagnosed psychiatric illness significantly contributed to by her ATO employment
(b)the illness was contributed to by her employment “to a degree substantially more than material” (ie “significantly” - see SRC Act s 5B(3)) because it arose from her perceptions of
(vi)     the way she was treated (by Ms Slattery and Mr Curcio)
(vii)    the diminishing significance of the work she was allocated in the BI&IM team
(viii)    her poor relationship with other members of the BI&IM team.
(c)provided the Tribunal was satisfied they were as she claimed, and significantly contributed to her illness, it is not relevant to enquire whether Ms Costantine’s perceptions were reasonable
(d)a number of the 18 individual events that occurred on or before 5 November 2012 significantly contributed to her illness
(e)none of the those events involved reasonable administrative action, and did not exclude her illness from the "injury" provisions of the SRC Act.
(f)the 5 November 2012 “project lead” announcement was the critical event that significantly contributed to (and in reality, triggered) Ms Costantine's illness, or its relevant aggravation
(g)the circumstances of that “project lead” announcement do not constitute administrative action (or at least not reasonably taken administrative action) and do not fall with the exclusionary part of the SRC Act s 5A(1) “injury” definition
(h)none of the nine identified events that occurred after 5 November 2012 relevantly contributed to Ms Costantine's illness, even though some of them may have contributed to the duration of her continuing symptoms and incapacity.
The Applicant’s written submissions ultimately conceded that six of the 18 “pre 5 November 2012” events listed in the Schedule made no, or no material, contribution to her illness. These matters (with a shorthand indication of their date and subject matter) were:
(a)21 May 2012 - the HD issue
(b)     18 July 2912 - “micro-management” by Ms Slattery
(c)     25 July 2012 - the workplace assessment
(d)     7 September 2012 - the OPAL report work
(e)     20 September 2012 - the OPAL report meeting
(f)      26 September 2012 - the PDA meeting.
MS SLATTERY’S PERSPECTIVE
Ms Slattery, the BI&IM team leader, and Ms Costantine’s immediate superior, at the ATO Parramatta office, said her impression was that, prior to the office relocation to which I later refer, Ms Costantine had been “quite vivacious”. From about the middle of 2012 Ms Costantine had become comparatively less talkative but, with the exception of her relationship with one other team member from some time around mid October 2012 (a matter to which I refer in paragraph 108 below), not to such an extent that Ms Slattery detected any reserve in her dealings with rest of the team. Ms Slattery’s observation was that Ms Costantine’s behaviour noticeably changed in about November 2012. The particular incident upon which Ms Slattery remarked concerned the manner of Ms Costantine’s participation in a training workshop. (I discuss this matter in paragraphs 171 to 176 below.)
The turning point in Ms Slattery’s personal relationship with Ms Costantine came in December 2012. That was the result of the “Scorecard” discussion - to which I refer in paragraph 179 of these reasons. That discussion appeared to end with Ms Costantine’s professed desire to remain as part of the BI&IM team, and her assurance of her regard for Ms Slattery. But in the earlier part of the discussion Ms Costantine had raised matters Ms Slattery regarded as quite unjustified criticisms of her. Ms Slattery said that after that discussion, and a follow up meeting with Ms Costantine and Mr Curcio in February 2013, she became traumatised at the prospect of having any further dealing with Ms Costantine. Ms Slattery retired from the ATO in the first half of 2013.
MR CURCIO’S PERSPECTIVE
Mr Curcio has worked with Ms Costantine since about 2009. He is a very experienced executive level officer and has held various management and leadership roles within the ATO. During the 2011 to 2013 period relevant to the present proceedings, he was the, Canberra based, executive level “director” to whom Ms Slattery reported in relation to the Parramatta section of the BI&IM team. After the June 2011 merger (to which I refer in paragraph 25) Mr Curcio himself reported to a more senior, Adelaide based, executive level BCIM officer, Ms Ashwin.
Mr Curcio had regarded Ms Costantine as both a valued fellow public servant and a friend. He had no issues with her work quality, and thought she received fairly positive feedback about her work. At a personal level in late 2012 Mr Curcio became aware, as a result of a report from Ms Slattery, that Ms Costantine had an issue with a junior staff member who was refusing to interact with her. In about mid November 2012, Ms Slattery relayed her impression that Ms Costantine was having some financial problems, and Mr Curcio contemplated offering her a modest interest free loan.
Mr Curcio explained that the usual procedure where an employee had a work related concern they would be expected to raise it with their immediate supervisor (in Ms Costantine’s case Ms Slattery). If that did not produce a satisfactory response, the matter could be raised with him. Mr Curcio said he only became aware of Ms Costantine’s work place dissatisfaction in early December 2012. That was after a controversy arose over Christmas leave, and the related allocation of higher duties opportunities. (I deal with this matter in paragraphs 177 to 206 below.)
At that time Mr Curcio thought they would be able to work through the problems Ms Costantine perceived. The opportunity to do so was limited by the fact that Ms Costantine did not attend a meeting he arranged for Friday 7 December 2012. (She took leave until early February 2013.) It was only in the deferred meeting, on 5 February 2013, that Mr Curcio became more fully aware of Ms Costantine’s claims that she had not been given sufficiently “value added” work commensurate with her abilities and aspirations.
COMCARE’S DECISION
Comcare’s April 2013 refusal decision did accept that four employment related events had occurred. These were that that Ms Costantine
(a)had not been appointed to act in Ms Slattery’s position, on unspecified occasions during 2012
(b)was admonished in July 2012 by a senior officer over an email she had sent
(c)in a discussion (on about 30 October 2012) was suggested by Ms Slattery to have forgotten removing her proposed annual leave period from an informal office spreadsheet
(d)had come to feel isolated at work, because of her perceptions about the allocation of work within the BI&IM team.
Comcare accepted - based on the psychiatric diagnosis Dr Burke reported in April 2013 - that Ms Costantine’s relevant injury was the relapse or aggravation of a Major Depressive Disorder. Comcare determined that the relevant date of her injury was 5 November 2012. That finding was based on Dr Burke’s report that Ms Costantine had consulted him on that day. It took into account SRC Act s 7(4). Comcare also accepted that Ms Costantine’s interpretation of, and reaction to those events, could give rise to a relevant “injury” for the purposes of the SRC Act, even if her perception of events was objectively unreasonable: see Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795.
However Comcare rejected Ms Costantine’s complaint that she had been “overlooked for higher duties” in acting in Ms Slattery’s position. Comcare’s position was that Ms Costantine had simply not been available in, or least not for the whole of, the specific periods of Ms Slattery’s relevant absences. In those circumstances the allocation of HD opportunities to others had been objectively reasonable in both fact and manner. Consequently SRC Act s 5A(1) applied to exclude Ms Costantine’s complaint from being categorised as a relevant injury. Comcare also considered that the HD issue was a significant contributing factor to the development of her condition. That significant contribution was sufficient to preclude the success of her claim, even if the other matters about which she complained had also played a role in the relapse of her condition: see Hart v Comcare [2005] FCAFC 16.
Comcare’s reviewable decision of 25 June 2013 came to essentially the same result. It concluded that both the general instances where the BI&IM team structures and roles had changed, and Ms Costantine’s more specific complaints about the allocation of HD opportunities, constituted “reasonable administrative action taken in a reasonable manner”, and consequently attracted the “injury” exclusion provision in SRC Act s 5A(1).
THE BCIM AND BI&IM STRUCTURES AND CHANGES
In order to appreciate the nature, and assess the significance, of Ms Costantine’s claims, it is necessary to have a proper understanding of the ATO structures, the nature of the BI&IM team activities, and the personnel involved.
The immediate history of Ms Costantine’s activities, prior to the start of her work at Parramatta in early 2011, was her involvement in a pilot program between October 2009 and January 2010. This concerned the development of the ATO’s computer systems to include particular aspects of its income tax regulation and management activities. The successful completion of that pilot project saw the introduction of the “Business Issues Management” team. Originally the team had seven higher level members - Mr Curcio and Ms Slattery, the executive level officers whose respective locations and roles I have already described, and five, Parramatta based, “APS6” level officers - Ms Costantine (as a support person), a database administrator, and three “business analysts”.
In about June or July 2011, the ATO embarked upon various cost saving measures. They included structural simplification that resulted in the Business Issues Management team being moved to another “management line” within the ATO. In that altered structure the team merged with three other ATO teams - Remediation Implementation, Incident Management, and Reporting. Within the merged, and significantly larger, “BCIM” unit the Business Issues Management team expanded to include another support person. That was a Mr Bruin. He was part of the Remediation Implementation team, and had various existing reporting functions as part of that team’s responsibilities. Mr Bruin’s reporting role was analogous to that of Ms Costantine and, with Mr Curcio’s encouragement, she later took on a mentoring role with Mr Bruin. This was to foster his integration into the team and, more specifically, equip him to undertake higher duties, when opportunities became available within the team. It is important to note, however, that Mr Bruin initially reported to Mr Curcio (rather than to Ms Slattery) and did not work at the Parramatta office. Typically he came there only about once a fortnight. Furthermore, although Mr Bruin had a similar kind of reporting role to that of Ms Costantine, he was responsible for work the original team had not previously done. He also had a background as a technical support officer. Mr Curcio explained that, because of that background, Mr Bruin “was able to deal with some of the systems in a slightly better way” than Ms Costantine. His role was primarily that of (i) reporting on remediation issues (what Mr Curcio summarised as (i) the “drop report” on the status of “system fixes”) and (ii) co-ordinating “business change requests” (ie requested improvements to the computer systems). Ms Costantine’s role was principally as a support to Ms Slattery, and involved reporting on wider aspects of the BCIM / BI&IM systems.

In January 2012 one of the senior executive officers left the Incident Management team. This resulted in a further merger - of the Business Issues Management team and the Incident Management team - and adoption of the name Business Issues and Incident Management (“BI&IM”). The merger was intended to better integrate the respective teams, closely related, activities. In its merged form the BI&IM team included two additional executive level positions below Mr Curcio. One of them (Mr Howard) was based at the Parramatta office and joined Ms Slattery’s part of the team. The other new executive level officer (Ms Ball) was based in the Adelaide ATO office. The new team structure also increased the number of business analysts to five or six. Three, or perhaps four, of them were based at the Parramatta office. The others were in Ms Ball’s Adelaide office. There were still two support staff, Ms Costantine and Mr Bruin, and perhaps one or two more junior personnel.
Until about April 2012 all of the business analysts reported to Ms Slattery at the Parramatta office. The principal reason for this, according to Mr Curcio, was to coordinate the uniform development of procedures and activities for the BI&IM team functions. By about April 2012, the team’s systems and procedures had reached a level of maturity where it was more appropriate and efficient to have the business analysts report directly to the executive level superiors where they worked and, more typically, to the executives who had primary responsibility for business analysis activities. In the case of the Adelaide office this meant that the analysts reported to Miss Ball, rather than Miss Slattery. In the case of the Parramatta office it meant that the business analysts reported to Mr Howard.
This change in the reporting regime reduced Ms Slattery’s support requirements and, correspondingly, that aspect of Ms Costantine’s role. In addition, as I have previously noted, the change corresponded with an increasing maturity and functionality of the BI&IM team systems. The principal purpose of the team’s activities was to assist in ensuring the required functionally of the relevant ATO computer systems. Part of that functionality involved the implementation of new functionalities. Part of it involved the analysis and correction of irregularities. Necessarily specific processes were required for registering problems, identifying the required investigatory and remedial work, monitoring the status of that work, and recording its eventual successful completion. These requirements, although simply described, involved a degree of implementation complexity. As Mr Curcio explained, partly because of the incremental development of the systems, and the BI&IM team’s “merged” form, there were separate databases with different levels of information and functionality. Part of Ms Costantine’s duties after April 2012 was to monitor and report upon the adequacy and the consistency of the information contained in these various databases. However, the nature of that task, of ensuring consistency between the various databases was, to a significant extent self-limiting. As the monitoring, and correction work progressed, the respective databases became more consistent and reliable. In addition, the growing refinement of the computer systems ultimately led to some degree of automation of the reports that could be derived from them. As a consequence, there was a progressively diminishing role for some of the reporting activities Ms Costantine had previously undertaken.
However, Ms Costantine also had an additional function of preparing weekly (later fortnightly) reports on “law conformance” issues. These were reports dealing with irregularities thought to have possible implications for the ATO’s compliance with its various policies and legal obligations. These regular reports were presented to another part of the ATO - a business unit with the acronyms OCLAP - and later OPAL (“Operations Policy Assurance & Law”). Both Mr Curcio and Ms Costantine were of the view that the preparation of these “law conformance” reports became a principal part of Ms Costantine’s work.
As I have previously described, some of the BI&IM team business analysts were located in the Adelaide office. Both groups of business analysts (at Adelaide and Parramatta) had their own executive level supervisors. In about August or September 2012 those executive officers (Mr Howard and Ms Ball) conveyed to Mr Curcio their view that it was no longer appropriate for their business analysts to be required to respond directly to enquiries by Ms Costantine about reporting issues. They told Mr Curcio that direct communications between Ms Costantine and the business analysts imposed an unnecessary burden. Rather than have Ms Costantine directly approach the analysts herself, it was more efficient for her to address any queries to the executive level supervisors. Mr Howard and Ms Ball thought that this change in practice would have two benefits. First, it would involve them in greater level of responsibility for the immediate supervision of their business analysts’ performance. Secondly it would allow the business analysts to concentrate primarily on their ordinary day-to-day activities. Mr Curcio commented that these changes did have an impact on Ms Costantine’s role in three respects - it effectively removed her role in reporting on the BI&IM team performance, it reduced the scope of her “Q & A” work on the BI&IM databases, and it reduced the extent of her responsibility for the OPAL reporting. However, an 11 September 2012 email summarises the then agreed responsibilities in relation to OPAL reporting. It indicates that Ms Costantine was responsible for monitoring new and ongoing issues, preparing a fortnightly report, collating and completing Ms Ball and Ms Howard’s responses to matters raised by OPAL, and maintaining an ongoing report of OPAL issues.
There was a further relevant change in the period around late September 2012. This concerned introduction of a new version of the Australian Business Register. In order to implement this initiative another Canberra based executive level officer (who was previously part of the Remediation Implementation team within the BCIM unit) was appointed (in November 2012) as the leader of the project. Mr Curcio said he had asked Ms Costantine to take the lead “business analyst” role on this project. He explained that, based upon experience with the introduction of a previous version of the register he had anticipated the project would involve a significant amount of work. However the project turned out to be unexpectedly successful. That success brought with it a much diminished need for the kind of work he had originally anticipated Ms Costantine would be required to perform. However it was Mr Cucio’s impression, as a result of his unsuccessful discussions trying to encourage Ms Costantine to take on a business analyst role (discussions that he said occurred in connection with, and after, the ABR project) that Ms Costantine was of the view that she still had a considerable amount of QA work on the BI&IM databases. In addition, it was in that same period that Mr Curcio asked Ms Costantine to review the BI&IM procedures and related documentation.
The next relevant development was the result of an OPAL policy change. This decision, which the contents of Ms Slattery and Ms Costantine’s 4 December 2012 discussion (see paragraph 182 below) suggests had not then been fully implemented, was that OPAL decided to dispense with future “law conformance” reports originating from the BI&IM team. This reflected OPAL’s view that the BI&IM reports either no longer satisfied, or were not necessary to meet, its needs, and that OPAL was best placed to identify and prioritise conformance risks. In that respect OPAL’s decision was not based on any criticism of Ms Costantine’s performance. Nevertheless, it had some personal significance to her. This was because, as I have previously recounted, the “law conformance” reporting to OPAL had been a principal part of her activities. However, this change did not contemplate a complete halt in the interaction between OPAL and the BI&IM team. Rather the new procedure was one where OPAL itself would prepare the primary reports, and submit them to the BI&IM team to check and confirm or supplement. Email correspondence between various ATO units, including the BI&IM team, indicate the precise nature and extent of the OPAL reporting requirements was a matter of considerable importance. Discussions about the detailed aspects of the reporting process, including the frequency of reporting by the BI&IM team, was discussed in email exchanges with OPAL in late January 2013. The precise extent of the work involved appears not to have been finally resolved, even by March 2013 - ie after Ms Costantine’s departure from the team.
CULMINATION OF THE BI&IM CHANGES
The events of 4 December 2012 - to which I alluded in paragraph 6(b)(iv) as one of the foci of Ms Costantine’s discontent - took place against this background of incremental change, and decline in the requirement for the support role that Ms Costantine had originally undertaken. That decline was evident to her and, as the contents of the 4 December 2012 discussion also revealed, had prompted her to apply, to that stage unsuccessfully, for other positions within the ATO.
Ms Costantine was at work on 5 and 6 December 2012, but she took flex leave on 7 December. She attended work for a time on 10 December, but then was on leave (a combination of annual, flex and long service leave) until Tuesday 5 February 2013. Ms Slattery also took leave from about 7 December 2012 - for her long anticipated pre-retirement holiday. She did not return to work until about 29 January 2013.
The meeting between Mr Curcio, Ms Slattery and Ms Costantine on 5 February 2013 was the postponed follow up to Ms Slattery and Ms Costantine’s discussion on 4 December 2013. The manner of Mr Curcio’s participation at that meeting was one of Ms Costantine’s primary criticisms. (I discuss it, and reject Ms Costantine’s criticisms, later in these reasons:- see paragraph 211 below.)
After the 5 February 2013 meeting Ms Costantine continued on at work for the rest of that week, and for the first three days of the following week. On Wednesday 13 February 2013 there was a BI&IM team meeting. At that meeting Mr Curcio announced a review of the team functions. There are three items of information that provided relevant background to this review. The first was that the ATO was undertaking a review of functions within the “Client Account Services” (“CAS”) branch of its operations, and the BI&IM team was one of many components within the scope of this review. An interim aspect of that review was that the BI&IM team was to be moved to another reporting area within CAS. Second, Ms Slattery’s previously foreshadowed intention to retire had crystallised to the point of fixing upon 1 May 2013 as her retirement date. Third, prompted by the coincidence of those two events, the BCIM leadership (ie Ms Ashwin, Mr Curcio and other executive level staff) determined that it was an opportune time to review the BCIM structure. Ms Slattery was to conduct that review, with a view to completing it by the end of February 2013. Ms Slattery anticipated starting pre-retirement leave in March 2013, and was unlikely to return to work after that date.
One outcome of the 5 February 2013 meeting, and the later team meeting on 13 February 2013, was that Ms Costantine was to have a new Performance Development Agreement (“PDA”). Mr Curcio sent a revised document to her on 15 February 2013. The revised PDA contemplated that her principal work activities would involve
(a)     finalisation (by March 2013) of the quality assurance review of the existing BCIM databases (there appear to have been three: SIGR (systems issues governance register), IMRI (issues management and remediation issues) and BIM systems (business issues management)
(b)     updating (by April 2013) the IMRI manual and BIIM checklists/procedure documentation
(c)     ongoing analysis and investigation of business processing issues escalated by the BIM process.
I interpret this revised PDA as indicating that, subject to the completion of work involving the QA review of the existing databases and procedures, Ms Costantine would have a significantly reduced reporting function and be much more involved in the “business analyst” category of the BI&IM team’s work. This is an outcome that was, in my view, readily foreseeable, and had been foreseen by those involved. It was partly the result of the BCIM and BI&IM structural changes during 2012, partly the result of the appropriate allocation of work (especially in relation to meeting OPAL’s requirements) and partly the result of the maturation of the BCIM and BI&IM information systems and data bases.
Nevertheless, it is relevant to note that in April 2013 Ms Costantine made a formal harassment complaint against Mr Curcio and Ms Slattery. The substantive grounds of that complaint substantially reflect the criticisms I summarised in paragraphs 4 and 5 above. More specifically stated here, Ms Costantine complained that
(a)     at the 5 February 2013 meeting Ms Slattery and Mr Curcio insisted that they could no longer provide her with the “admin” work she had previously done
(b)     she had set up processes and documentation for work functions that Mr Curcio and Ms Slattery had re-allocated to another team member
(c)     some of her specific work functions - including reporting and attending at various meetings as a note taker - had been “covertly” reallocated to higher or lower graded officers leaving her with no value added work. The manner in which the work would be re-allocated was, she claimed, that she would go on leave, and after her return the work would remain with the other team member.
I am comfortably satisfied that Ms Costantine’s complaints about the 5 February 2013 meeting, and her more generally framed criticisms of Mr Curcio and Ms Slattery, are based on factual propositions that do not bear close scrutiny. It will be necessary to discuss various aspects of her evidence in detail. But as an overview, it is appropriate at this point to make several observations.
The first observation is that (as I have summarised above) the ATO changes affecting the original Business Issues Management team did involve some restructuring of work activities and practices. The integration of the “Remediation Implementation” and “Incident Management” teams was intended to align closely related aspects of their work. That integration, together with the initial development of appropriate “processes and documentation for work functions” would most likely reduce the level of need for long term administrative support, of the kind that reflected Ms Costantine’s preferred scope of work. Where that anticipated, but from her point of view unwelcome, eventuality has come home, it is likely to involve a distorted version of events to attribute dissatisfaction about that result to the “covert” re-allocation of functions by superiors - especially where those superiors (relevantly Mr Curcio and Ms Slattery) and the disappointed worker concededly had a long history of good working and personal relationships.
The second observation is that Ms Costantine’s role within the BI&IM team was primarily that of “admin work” (to use her own expression). Her description of the detail of that type of work (again using her own words) was the development of “processes and documentation for work functions”. What both of these matters imply is that (i) the principal BI&IM team “work functions” were those carried out by the business analysts, and (ii) it is inherently unlikely to be accurate to say that Ms Costantine’s “process and procedure” development work was allocated to others - covertly or otherwise.
The third observation is that her complaint about work being re-allocated to others was one she left in general terms. Apart from a desultory assertion that Mr Bruin attended more meetings than she did, Ms Costantine left her complaints unrelated to specific periods of leave, unrelated to specific categories of work, and unrelated to identified “other officers” (other than Mr Bruin). Such a generality leaves her complaints, except in relation to the specific matters I address later in these reasons, in the category of essentially unsubstantiated assertions.
However, Mr Curcio disputed much of the generality of Ms Costantine’s complaints. His relevant explanations, which I accept, were partly in his oral evidence and partly in a very extensive written rebuttal of Ms Costantine’s claims. He addressed in detail four particular categories of activity which, in various places had been alluded to by Ms Costantine as examples of work about which she complained. These were (i) Business Deployment verification (“BDV”) (ii) Urgent Change List (“UCL”) (iii) Business Change Requests (“BCR”) and (iv) leadership group meetings. (The descriptions that follow are relevant in understanding specific complaints Ms Costantine made at the 5 February 2013 meeting - see paragraph 211 below.)
BDV: This was originally a task of the Remediation Implementation team. It was work that Mr Bruin brought with him when he joined the BI&IM team. After the team merger in 2011 it principally involved the updating of “tickets” within the computer system to determine the status of the required work. Once the verification stage had been completed the work only involved monitoring new cases and the level of work significantly reduced. Mr Curcio said that the number of items involved was typically less than 1 to 2 per week. The ongoing work was closely related to Mr Bruin’s role in preparing his “drop report”, and it was more efficient to allocate the task to him.
UCL: This was a daily telephone hook up with another ATO area where the BI&IM team received information about changes to the relevant systems. UCL information involved only lower level team employees, and those involved in the preparation of the “drop report”. It was a 30 minute job that, in Mr Curcio’s view, did not warrant the skills of a person of Ms Costantine’s status and experience.
BCR: The BI&IM team took on this work in around September 2011. That was at a time when Ms Costantine was acting in Ms Slattery’s role. There was a backlog of work initially. That had cleared by about December 2011. The decision was made that it could be handled by one person. In the period when Ms Costantine was on leave (from mid December 2011 to mid February 2012) the work was allocated to Mr Bruin.
Leadership group meetings. These meetings were typically attended by Ms Slattery herself. There were fewer than 10 occasions when she was not the note taker at the meetings. Mr Bruin was the note taker only on six occasions. Four of those were in June 2012, in or around the period when he was acting in Ms Slattery’s role. There were two such occasions in October 2012, again around the time when he had been acting in Ms Slattery’s position role.
Mr Curcio also explained that some of the matters about which Ms Costantine complained related to work that she had done (mainly in 2011) whilst she had acted in Ms Slattery’s role. Therefore they were not reflective of activities she would have been charged with, or undertaken, in her normal role as an administrative support to Ms Slattery.
Mr Curcio was not cross examined on the detail of any of these matters. I accept his unchallenged explanations. They provide relevant background in the consideration of Ms Costantine’s more specific grounds of complaint.
THE HIGHER DUTIES (“HD”) ISSUES
Ms Costantine’s complaints about being “overlooked” for higher duty (“HD”) opportunities are particularly material matters. They are material both because of the significance she claimed to attribute to the individual incidents, and because of her general claim about having been marginalised and isolated in the BI&IM team. In discussing Ms Costantine’s HD complaints, especially in view of her understanding of her discussions with Ms Slattery, and her frequently stated perception that she always “defaulted” into Ms Slattery’s position, it is necessary to bear in mind Mr Curcio’s evidence that all HD appointments to Ms Slattery’s position were a matter for his decision, a decision which he typically made in consultation with the other executive managers involved.

Within the period relevant to Ms Costantine’s complaints (April 2012 to February 2013), there were four possible periods of higher duties (“HD”) opportunities at the Parramatta office. They were
(a)     2 to 30 April 2012:-              when Ms Costantine acted in Ms Slattery’s position      for about 21 working days
(b)4 to 24 May 2012:-              when Ms Costantine took a partly overlapping HD opportunity at the ATO’s Hurstville office from 24 May to 12 June 2012
(c)2 to 12 October 2012:-      when Ms Costantine took leave from 28 September to 4 October 2012
(d)December 2012:-                when Ms Costantine cancelled her approved leave and sought at least part of an HD period that had been allocated to another employee.
Notwithstanding the potential dual significance to which I have referred, the circumstances involved in the first three HD opportunities appear to have their own special features. Because of those features, and for the reasons I will explain, they actually provide no support for Ms Costantine’s complaints about being marginalised. It is convenient to deal with those three individual “higher duties” incidents at this point, rather than to intersperse them between other parts of the sequence of events. The circumstances involved in the last HD opportunity, in December 2012, are intertwined with the December “Scorecard” meeting with Slattery (to which I referred in paragraph 14 above) and with Mr Curcio’s awareness of Ms Costantine’s dissatisfaction. I deal with those matters later in these reasons - starting at paragraph 177.
2 to 30 April 2012 HD
This 21 work day period when Ms Costantine acted in a HD role during Ms Slattery’s absence is not the subject of any complaint. Nevertheless it is a relevant matter to take into account, particularly in relation to Ms Costantine’s complaint about the May / June 2012 HD period which I next consider. Part of its relevance lies in Ms Costantine’s own evidence that she had been mentoring Mr Bruin since at least September 2011 with a view to skilling him to take on HD opportunities at Ms Slattery’s level. Another part of the relevance is Ms Costantine’s claim that, when Ms Slattery returned to work at the end of April 2012 she told Ms Costantine she had “concerns” about Mr Bruin’s abilities and that, until Ms Slattery was more confident about them, Ms Costantine would continue to act in the HD role during Ms Slattery’s leave periods.
I am extremely sceptical of the reliability of Ms Costantine’s recollection that, after more than a month away from the office, Ms Slattery would immediately return and not only express reservations about Mr Bruin’s abilities but also assure Ms Costantine that, for the foreseeable future, all HD opportunities would be hers. In my view, Ms Slattery had no ability to give such an assurance, and there was no occasion for such a conversation to have occurred. I do not accept that it did. In any event, the necessary implication of Ms Costantine’s version of events was that Ms Slattery would continue to assess Mr Bruin’s abilities, and that once she was appropriately satisfied, the future HD opportunities would be shared between him and Ms Costantine. Having regard to her own conceded activity in mentoring Mr Bruin, this must in fact have reflected Ms Costantine’s understanding of the situation. I find that it did.
24 May to 12 June 2012 – working in another office
In her written statement Ms Costantine put this matter as one where Ms Slattery had not candidly disclosed to her that she intended to take leave in early June 2012. Her more specific complaint was that after telling Ms Costantine the HD role had been allocated to Mr Bruin, Ms Slattery effectively refused to give any genuine consideration to Ms Costantine acting in the role, and encouraged her to work in another office. However, as I shall recount, the objective reality of the circumstances does not accord with the abbreviated account Ms Costantine initially presented.
That reality begins with the fact that for most of April 2012, as I have earlier noted, Ms Costantine had a significant HD period at the Parramatta office and, as she well knew, was not the only person within the BI&IM team with legitimate HD expectations. The reality continues with the fact that Ms Costantine had volunteered to undertake HD in the ATO’s “Large Business & International” unit at its Hurstville office. This came about because she had a personal friend who was an executive or administrative assistant to one of the Assistant Commissioners at the Hurstville office. Ms Costantine’s friend wanted to take leave to go overseas for her 25^th wedding anniversary. She had tried, unsuccessfully, to get other staff to act in her role while she was away. During the course of a weekend conversation Ms Costantine’s friend conveyed her anxiety about the difficulty of finding an appropriate “stand in”. Ms Costantine, who had significant past experience in a similar role, volunteered to help her friend out. In order to do that, and before any arrangements could be formalised, Ms Costantine had to first get the agreement the Assistant Commissioner concerned and have her friend arrange an appropriate security clearance.
Ms Costantine said she raised the matter with Ms Slattery on the following Monday. She said she wanted to help her friend out and asked Ms Slattery whether she would support her in that endeavour. In the course of her oral evidence Ms Costantine claimed (i) she did not then know that her friend’s position would involve her in a HD role, and (ii) that she contemplated carrying on her own role in the BI&IM team at Parramatta as well as undertaking her friend’s role at the Hurstville office. But I find her professed recollection of those details is contrary to her written statement, contrary to Ms Slattery’s recollection, inherently incredible, and not at all reliable.
According to Ms Costantine’s version of events, it was in that very same meeting Ms Slattery told Ms Costantine that in June 2012 she herself would be involved in Mr Curcio’s role, while he was on leave. There would be a consequential HD opportunity at the Parramatta office during her absence - for a period of about the same length as, and partly overlapping with, the period involved in Ms Costantine’s request. That HD opportunity would likely be filled by Mr Bruin. Ms Costantine says that, in response to this disclosure, she told Ms Slattery that nothing was concrete, her friend would have to seek permission from her Assistant Commissioner, and would contact her once she had their agreement. Since nothing had been finalised Ms Costantine was willing to stay on and act in Ms Slattery’s role. But Ms Slattery expressed the view that it would actually be good for Ms Costantine to get the experience of working in another role in another office. A few hours after that conversation Ms Costantine said Ms Slattery reported that she had discussed the proposal with Mr Curcio, and that both of them thought it would be a good opportunity for Ms Costantine to work at the Hurstville office. Later the same afternoon, according to Ms Costantine, her friend contacted her. She reported her superior’s approval of the proposed arrangement, and asked Ms Costantine if she was still happy to go ahead. Ms Costantine agreed.
Early on the morning of 23 May 2012 Mr Curcio sent an email to his superior (Ms Ashwin). The email records his approval of the proposal, and that he knew it was an HD opportunity for Ms Costantine. On the afternoon of Wednesday 23 May 2012 an email to Ms Slattery, from the Assistant Commissioner at the Hurstville office, confirmed an arrangement they had made the previous day to release Ms Costantine, nominated the HD level involved and gave the three week period from 24 May to 12 June as the dates when she would be required.
Contrary to Ms Costantine’s recollection of the sequence of events, the contents of Mr Curcio’s 23 May 2012 email convey to me the likelihood that Ms Costantine had actually agreed to undertake HD at the Hurstville office before she had any discussion about Mr Curcio’s leave. That sequence of events was certainly the recollection of both Ms Slattery and of Mr Curcio.
If it was necessary to make a specific finding about whether Ms Costantine had agreed to the Hurstville HD opportunity before there was any discussion of Mr Curcio’s leave, I would prefer the recollections of Ms Slattery and Mr Curcio to those of Ms Costantine. I would do so partly because aspects of Ms Costantine’s version of events are inherently incredible (see paragraph 65 below), partly because of the more general reservations I have about Ms Costantine’s reliability (see paragraph 66 below), partly because Ms Slattery and Mr Curcio have the same contrary recollection, and partly because I think their recollection is consistent with Mr Curcio’s 23 May 2012 email.
Even though I do make the finding referred to in the preceding paragraph, I also note it is not a finding that it is necessary to make in order to reject Ms Costantine’s criticism of Ms Slattery and Mr Curcio as unjustified. Even on Ms Costantine’s own version of events, at the time of the conversations between Ms Costantine and Ms Slattery it was very clear, and Ms Costantine fully appreciated, that no definite arrangements of any kind had been made about acting in her friend’s role. (Ms Costantine was still in fact waiting to hear whether her friend had been able to obtain her superior’s agreement to the proposal.) It must also have been readily apparent to Ms Costantine, given her own very recent HD experience, the changes in the team structure, Mr Bruin’s equivalent status, and her mentoring of Mr Bruin for precisely such an opportunity, that Mr Bruin’s proposed HD allocation to Ms Slattery’s position was an entirely reasonable decision. Later, when Ms Costantine’s friend telephoned and reported her superior’s approval, Ms Costantine’s agreement to go ahead was prompt - despite her obvious awareness that (i) she had no obligation to agree and, (ii) (according to her recollection) that there was a prospect of an HD opportunity becoming available during Ms Slattery’s likely future absence. Her prompt agreement was understandable - because of a self interested perception of the benefit not only of securing the HD opportunity but also the possible benefit of the experience of working at such a senior level in a different ATO area. It was also inevitable - because of the friendship that had originally motivated her offer.
Ms Costantine sought to present this sequence of events as evidence that Ms Slattery had slighted her - by first of all not revealing that she would be acting in Mr Curcio’s role (creating a potential HD role for Ms Costantine), secondly by preferring Mr Bruin for the HD role at Parramatta, and thirdly by encouraging Ms Costantine to take up the Hurstville HD role, rather than pursue the HD opportunity in Ms Slattery’s role. Ms Costantine went so far as to say about this incident that she was upset Ms Slattery had not been “up front” with her, and that it resulted in her feeling “admonished, undervalued, unwanted and sick”.
I find, without hesitation, that Ms Costantine’s evidence about her asserted perception of events was unreliable. The starting point in the unreliability of Ms Costantine’s evidence is that a full account of her perception of the sequence of events only emerged after critical examination of her fragmented assertions about it. A way-point that also leads to satisfaction about the unreliability of Ms Costantine’s claimed interpretation of events is her professed initial ignorance that her friend’s role would involve higher duties, and her claim that she intended to do both her own duties and those of her friend (matters recounted in paragraph 58 above). Those claims were circumstantially and inherently incredible. Finally, the plain fact is that Ms Costantine volunteered to act in her friend’s role, to allow her to celebrate a very significant personal anniversary. Ms Costantine raised the proposed arrangement with Ms Slattery and (on her own version of events) discovered, in that very first conversation, the imminent prospect of an HD opportunity to act in Ms Slattery’s position. Later Ms Costantine made an understandable, voluntary and fully informed decision to adhere to the proposed arrangement with her friend.
The fact that Ms Costantine sought to portray this sequence of events, as one in which Ms Slattery concealed information from her and then discouraged or disparaged her, suggests an lack of objectivity on Ms Costantine’s part. It conveys to me that she has a propensity to present argumentative interpretations of events rather than her recollections of the actual details of events. That propensity, which I regard as very graphically illustrated by this example (and by the matter to which I refer in paragraphs 86 to 88 (the medical report issue), highlights the real risk that Ms Costantine’s uncorroborated assertions about her perceptions and memory of relevant events are unreliable, because they are highly motivated, and likely distorted, by self interest.
In identifying that risk I do not overlook the document that Ms Costantine referred to as her “diary” of events. That document was asserted to be a contemporaneous account of events. The Applicant’s written submissions urged that I should accept it as such. I do not - for five reasons. First, as the printed footer on the document shows, it was printed on 15 March 2013. Second, the document actually forms part of (it is not a mere attachment to) a letter dated 15 March 2013. Third, in the letter Ms Costantine describes the material as “information … provided to support my claim for compensation”. Fourth, there are instances (admittedly few) in the body of the document where dates have been recorded as 2013. This is a telling corroboration of the footer date, and indicates not just that the document was printed in 2013 but that parts of it were likely written in 2013. Fifth, the document is not in the nature of a diary - if that description is meant to signify a daily chronicle of events. It simply does not record daily occurrences - by which I mean, a report of what Ms Costantine did throughout each day. There is no attempt at any such pedestrian descriptions. Days are missed from the sequence, sometimes many days. And where conversations are recorded, they are not merely summarised, they are the subject of extensive first person dialogues. All of these factors leave me with the firm impression that this document was merely a collection of asserted recollections, all of which were selected for inclusion under the strong influence of a motivated desire to support Ms Costantine’s claims.
For all of these reasons, and the additional reason provided by the details in the contents of her 20 February 2013 claim (see paragraph 1 above) I find that it is highly unlikely that Ms Costantine in fact had the slightest reservations about this HD incident or that she in fact perceived (even unreasonably) the circumstances as in any way adverse or distressing to her. I find that she did not.
15 October 2012 – Mr Bruin’s “Higher duties” opportunity
In her written statement Ms Costantine recorded, without complaint, that Ms Slattery sent her an email on 19 September 2012 that Mr Bruin would be acting in her role while she was away for a short time. She then went on to complain that on 15 October 2012 Ms Slattery merely informed her at a team meeting that Mr Bruin would be undertaking her duties whilst she was in Canberra. Ms Costantine said that she was “deeply upset” by the announcement at the team meeting - because (i) her perception was that she had always “defaulted” into Ms Slattery’s role and (ii) Ms Slattery was not honouring an understanding that opportunities at her level would be rotated between herself and Mr Bruin.
Again, objective circumstances must be considered in order to put Ms Costantine’s complaint into context. Those circumstances began with the fact that Monday 1 October 2012 was the October long weekend holiday. Ms Costantine took a flex leave day on the preceding Friday, 28 September 2012, took annual leave for three days the following week, and had another day of flex leave on Friday 5 October 2012. That period was a week of the NSW school holidays. The actual HD period in question involved Mr Curcio’s leave from 2 to 12 October 2012, Ms Slattery’s consequential move into his position, and a corresponding HD “backfill” opportunity at Ms Slattery’s level at the Parramatta office.
It is in my view quite significant that in her written statement Ms Costantine directed her complaint to the fact of Mr Bruin taking on Ms Slattery’s role at the 15 October 2012 meeting. It is significant for two reasons. The first is that Ms Costantine made no complaint about Mr Bruin acting in Ms Slattery’s role in the previous two weeks. The second is that the matter about which she complained occurred on the next working day after Mr Bruin had already been acting in Ms Slattery’s role for the preceding two weeks.
Despite the absence of complaint in her written statement, there was one point in her cross examination when Ms Costantine asserted she applied for leave after being told of Mr Bruin’s HD role from 2 to 12 October 2012. Even so, that was in the context of a complaint about the absence of prior consultation, rather than voicing any express complaint about the fact of Mr Bruin’s appointment. Indeed, it is relevant to bear in mind that, according to her version of events, Ms Costantine (i) thought she had an arrangement with Ms Slattery that Mr Costantine would “rotate” (which she seemed to suggest meant taking alternative turns) HD roles with Mr Bruin, (ii) knew that Ms Slattery would be away for 10 weeks over Christmas and New Year (see paragraph 82 below), and (iii) had an understanding that Ms Slattery and Ms Costantine would co-operate in adjusting their Christmas leave periods to ensure that Ms Costantine would take the Christmas HD role. Those three matters rather tend to add weight to the significance of the limited complaint made both in Ms Costantine’s written statement and in her oral evidence. In any event, after taking those matters into account, I find it highly unlikely that Ms Costantine had any difficulty with Mr Bruin’s HD appointment in October 2015. On the contrary, the allocation of the HD role to him at that time would likely merely only have encouraged her confidence about the prospect of obtaining the HD role over the Christmas break.
Furthermore, I do not accept Ms Costantine’s evidence that she only relevantly applied for leave after the announcement of Mr Bruin’s appointment to the HD role. It was Mr Curcio’s recollection that Ms Costantine had requested to take leave during the school holiday period (which included the whole of the first week in October), and had at least informally done so before he made the HD decision involving Mr Bruin. Because of that intended leave Ms Costantine would not have been available to act in Ms Slattery’s role for the first four days of Mr Curcio’s leave period. Her unavailability in that period is significant for three reasons. First, the relevant ATO policy document (of which Ms Costantine may be assumed to have been aware - see paragraph 199 below) precludes payment for periods of less than one week in HD roles at Ms Slattery’s “EL1” level. Second, there was a well recognised, and totally understandable, ATO policy not to “split” HD roles between other officers, at least where the HD period was (as in this instance) only of short duration. Thirdly, Mr Curcio gave evidence, which I accept, that the policy within the BCIM team was not to “backfill” positions for periods of less than two weeks. Consequently the situation was one where Ms Costantine was not available for part of the HD period and there was a well recognised practice not to “split” HD roles for such a short period.

An attempt was made in the course of the cross examination of Mr Curcio and Ms Slattery to establish that Ms Costantine’s October 2012 leave had not been sought, nor approved, prior to the 19 September 2012 email. Ms Slattery could not recall the precise sequence of events. Mr Curcio maintained his recollection that he had made the HD decision whilst aware of Ms Costantine’s leave preference, and said that the administrative records fixing the date when leave was formally approved (in the Employee Self Service System) did not provide an adequate basis for contradicting his recollection.
I regard Mr Curcio’s recollection as detailed, his recollection of the significance of the school holiday period as significant, and the manner and content of his evidence as persuasive. The persuasive detail of his evidence contrasts with the absence of any contrary assertion in Ms Costantine’s written statement, and with the fact that her statement made no explicit complaint about the October 2012 HD period in any event.
For the reasons I have set out above, there is no factual basis to justify any criticism of either Ms Slattery or Mr Curcio in relation to this treatment of HD in the period of Mr Curcio’s leave in October 2012. I am quite satisfied that it must have appeared, and did appear, to Ms Costantine in October 2012 as an unremarkable happening. I do not accept that it caused her any distress or upset of any kind.
14 MAY 2012 – MS COSTANTINE’S ASSERTION OF BI&IM RESTRUCTURE
I referred (in paragraph 25 above) to the July 2011 merger of the Business Issues Management team with other ATO units (Remediation Implementation, Incident Management, and Reporting) the increase in the team size and the inclusion of new senior managers. I then discussed (in paragraphs 26 to 28) the change in reporting arrangements for the business analysts within the BI&IM team.
In her written statement, and in her oral evidence, Ms Costantine conflated these two events, and suggested that the change in the size and structure of the BCIM and BI&IM teams (the latter being part of the former) occurred in May 2012 and resulted merely in the introduction of new personnel into the existing BI&IM team operations. She also suggested that the change resulted in her work being allocated to the two new executive level officers in Sydney and Adelaide (ie Mr Howard and Ms Ball).
The reality of the BCIM and BI&IM changes was as I have set out earlier in these reasons. Ms Costantine’s contrary and confused recollection is simply erroneous. As I had set out in the earlier part of the these reasons, the operational change that saw the business analysts report directly to Mr Howard and Ms Ball (rather than Ms Slattery) somewhat reduced the support that Ms Slattery required from Ms Costantine. But it is simplistic and inaccurate to describe these changes as if they were merely some idiosyncratic and irregular modification made by Mr Curcio or Ms Slattery. It is also inaccurate to describe the changes as involving Ms Costantine’s work being given to Mr Howard and Ms Ball. Their role, as Mr Curcio explained, was as the officers directly responsible for the work of the business analysts within the BI&IM team. This had never been Ms Costantine’s function - except, I note, perhaps in the April 2012 period when she had a HD role acting in Ms Slattery’s position. And as she repeatedly indicated later in the year, she was firmly resistant to any suggestion that she should move into taking on the functions, or acquiring the skills, of a business analyst.
This is not to say that the changes Mr Curcio described (see paragraphs 26 to 28 above) had no effect on Ms Costantine’s scope of work. It is to say that her account of the changes is seriously inaccurate. The only factual basis for what she complained about as changes made in May 2012 were the limited changes described by Mr Curcio. That inaccuracy makes it unsafe to accept, and I do not accept, her evidence that following what she called the relevant meeting in May 2012 she was treated dismissively and often sidelined, or that she perceived herself as having been so treated. In that context it is significant, in my view, that within a few days of the May 2012 meeting about which she complained, Ms Costantine volunteered to undertake the HD opportunity at the Hurstville office and, on the findings I have made, was encouraged and supported by both Mr Curcio and Ms Slattery in that endeavour. (I have discussed this matter in paragraphs 56 to 68 above.)
25 JUNE 2012 – MEETING CHAIRED BY MR BRUIN
As I have earlier discussed, Ms Costantine worked at the Hurstville ATO office from 24 May to 12 June 2012. During part of her absence, from Monday 4 June 2012, and until Friday 22 June 2012, Mr Bruin temporarily filled Ms Slattery’s position. These are relevant details in evaluating Ms Costantine’s complaints about the meeting Mr Bruin chaired on the following Monday, 25 June 2012.
The usual BI&IM team procedures involved a weekly meeting (telephone hook up) with various other senior ATO personnel. The meeting on Monday 25 June 2012 was one such meeting. Ms Costantine said that after Ms Slattery discussed with her the likelihood she would be away for 10 weeks over Christmas, and the prospect of Ms Costantine taking on a HD role while she was away, Ms Costantine volunteered to Ms Slattery to chair the meeting. She said that her suggestion was rebuffed by Ms Slattery’s statement that she had already asked Mr Bruin to take that role. Ms Costantine complained that Ms Slattery never gave her any opportunity to discuss the matter, that she was left with nothing to do, and that she was upset because she had “always stepped into Maureen’s role in her absence”. She claims it was quite obvious that Mr Curcio and Ms Slattery did not want to work with her. Her reaction to their allegedly obvious attitude was, she said, that she started not being able to sleep, her mood became sullen, and she became frightened that if she raised her concerns directly with Ms Slattery she would just give her evasive answers.
I have no hesitation in rejecting Ms Costantine’s complaints about this matter. The objective circumstances include the fact that her discussion about the meeting was preceded by Ms Slattery’s discussion of her Christmas holiday and the consequential HD opportunity that would provide for Ms Costantine. Secondly, the meeting was on the first working day after Mr Bruin had completed almost three weeks of HD acting in Ms Slattery’s position, and apparently, on Ms Slattery’s first day back at the Parramatta office. (And I draw attention to my earlier observation that Ms Costantine made no complaint about Mr Bruin’s HD appointment in that period.) Objective reality suggests that Mr Bruin was the logical choice to participate in the meeting. That suggestion was powerfully re-inforced by evidence Ms Costantine gave in the course of her cross examination. She said that in the period after Ms Slattery’s return to the Parramatta office, and until 29 June 2012, she had been involved in work on another project, and Mr Bruin had in fact continued on acting in Ms Slattery’s role. This detail may not have been the actual reality (because it was a detail Mr Curcio disputed in his written review of Ms Costantine’s complaint). But on the assumption that it reflected Ms Costantine’s contemporaneous understanding, it provides an overwhelmingly powerful reason to explain the reason for Ms Slattery’s conduct, and must have appeared so to Ms Costantine at the time.
There is no factual basis for Ms Costantine’s complaint about this matter. I regard as quite fanciful, the proposition that the circumstances surrounding this event distressed her in any way. I specifically reject her contention that it caused her to become sullen, frightened or unable to sleep.
29 JUNE 2012 – SON’S MEDICAL CERTIFICATE
One of Ms Costantine’s complaints about Ms Slattery was that she had refused to accept a medical certificate Ms Costantine presented to obtain leave to accompany her 18 year old son to an MRI examination following a sporting accident. Ms Costantine presented this complaint as one where Ms Slattery had been rude, inconsiderate and hostile towards her, made her feel foolish and failed to accord her the same entitlements as other staff members. But again Ms Contantine’s complaint was not accompanied by any detail that justified that characterisation of events, and such detail as she did ultimately concede suggests her limited initial recollection was again highly motivated and unreliable. The reality she ultimately acknowledged contradicts her asserted interpretation of events.
Ms Slattery, after discussing the matter with Mr Curcio, did indeed initially refuse to accept the medical certificate in question as sufficient to justify Ms Costantine’s leave application. But this initial refusal was based on what I regard as the not unreasonable view that the certificate related to Ms Costantine’s 18 year old son who, at least in the absence of specific additional information, did not reasonably require his mother to take time off work to accompany him to such an event. Ms Slattery’s initial refusal was also accompanied by her suggestion, a suggestion to which Ms Costantine agreed, that if Ms Costantine provided a further certificate satisfactorily explaining why she had been required to attend the examination, her leave would likely be approved. About an hour after this discussion, and before the contemplated additional certificate had been obtained, Ms Slattery returned to Ms Costantine’s desk area. She had with her a document which she handed to Ms Costantine and described as permitting her to accept the medical certificate Ms Costantine had originally presented. Ms Costantine’s leave application was accordingly accepted on that basis.
This is another instance where, in my view, Ms Costantine’s alleged perception of, and reaction to, events was distorted, and to such an extent that I regard her claim as unreliable. There is nothing in the details of her, ultimately recalled, description of events that warrants characterising Ms Slattery’s conduct as meriting any of the pejoratives that Ms Costantine initially sought to apply to it. On the contrary, a fair and objective evaluation of the actual details of Ms Slattery’s behaviour, and specifically her suggestion that a further more specific certificate would be acceptable, is that of a responsible, yet fair and helpful, superior. I do not doubt that characterisation is the one that Ms Costantine, as a rational and intelligent person, actually applied to events at the time. I do not accept that her claimed recollections to the contrary, and her pejorative castigation of Ms Slattery’s conduct, are at all reliable.
I am fortified in that view by the evidence Ms Costantine gave later in the course of cross examination. There she rather more candidly and, I am inclined to think reliably, described herself as having queried Ms Slattery’s initial decision to refuse to accept the certificate. She conceded, rather contrary to her earlier pejorative descriptions, that the incident certainly did not cause her to breakdown and cry and really did not affect her at the time. In view of these concessions, and the likely reality of the actual circumstances, I do not accept that Ms Costantine at any relevant time actually thought that this matter was a proper basis for any complaint, or that it distressed or troubled her in any way.
9 JULY 2012 – COMPETITION FOR OFFICE SPACE
Another of Ms Costantine’s complaints, as set out in her written statement, was that Ms Slattery was dismissive in asking her to organise the relocation of the office team to another floor in the same building. In her written statement Ms Costantine’s complaint was that Ms Slattery could have assigned this task to some other junior team member. In her oral evidence the basis of her complaint changed into one about Ms Slattery requiring her to occupy a particular work station within the new office layout. She claimed that this particular location segregated her from the rest of the team, made her feel isolated and unworthy, and that those feelings gave rise to rise to mood fluctuations, migraine headaches and loss of energy.
The notion underlying Ms Costantine’s complaint, in her written statement, that Ms Slattery was being “dismissive” towards her in asking her to organise the office team move is a distortion of reality. Such a request was more an endorsement of Ms Costantine’s abilities than a dismissal of either them or her. That characterisation is fostered by Ms Costantine’s oral evidence, which conveys that aspects of the relocation activity were a matter of some importance to Ms Slattery. Rather than the task involving some kind of dismissive delegation, Ms Costantine’s evidence revealed that Ms Slattery had asked Ms Costantine to attend a meeting with her, and the director of the other ATO team, to negotiate the allocation of accommodation between the teams. It appears (from both Ms Costantine and Ms Slattery’s evidence) there was something of a competition between the teams in achieving their respective preferred accommodation outcomes. In particular, on Ms Costantine’s version of events, Ms Slattery seems to have taken Ms Costantine into her confidence in describing the outcome that she wanted to achieve, and asked her to occupy a particular location, in order to pre-empt its occupation and use by another other team.
But I hasten to add that I do not accept the proposition that Ms Slattery actually directed Ms Costantine to occupy any particular position. That was not the complaint Ms Costantine made in her written statement. It is inconsistent with Ms Slattery’s version of events. What Ms Slattery said was that the rearrangement at the Parramatta office involved the BI&IM team sharing a floor with another ATO business segment, and some degree of competition for office space, or at least the office spaces perceived to be the most desirable. Ms Slattery said there was some discussion between her Ms Costantine about pre-empting officers from the other team from occupying a particular space. This was on the other side of a low partition facing Ms Slattery. Ms Slattery said that in that discussion Ms Costantine volunteered to occupy the space.
A discussion between two colleagues on a topic such as this might give rise to different perspectives about whether the subordinate colleague’s decision to embrace a particular course of conduct constitutes compliance with a direction or a purely voluntary decision. To the extent there is a difference, I prefer Ms Slattery’s version of events. I do so for three reasons. The first reason is my appreciation of the risk of the general unreliability of Ms Costantine’s uncorroborated recollections (see paragraph 66 above). The second reason is the absence of any complaint in Ms Costantine’s written statement. The third is my impression that Ms Slattery’s explanation is inherently plausible, and more reflects the tenor of voluntary co-operation I would expect was a feature of their relationship, as long standing colleagues of such a small unit as the BI&IM team. Consistent with that view is the conceded reality that Ms Costantine occupied the particular work space without making any complaint.
In any event, although Ms Costantine sought to convey in her oral evidence that this involved her in some kind of physical or perceived isolation from Ms Slattery and the rest of the BI&IM team at Parramatta, that is not an accurate description of reality. Neither is it a claim that I accept. The reality was that the team occupied three separate partitioned work alcoves. They were all on the same floor, and in very close proximity to each other. Six members of the team were in one alcove. Ms Slattery and two others occupied an adjacent alcove. Initially Ms Costantine did use the work position on the other side of the partition facing Ms Slattery. But she later moved to a similar workspace in an alcove immediately adjacent to Ms Slattery’s position. Ms Costantine was on her own in that alcove, but she was physically separated from Ms Slattery by nothing more than a small partition screen, and a distance of only about a metre. The screen was less than head height, and presented no significant barrier to conversation and ready interaction with Ms Slattery and other members of the team. Ms Slattery’s evidence was that this is the place where she preferred Ms Costantine to position herself. And I accept Ms Slattery’s evidence that it was the position into which Ms Costantine voluntarily moved. I would infer, and do find, that it is the position which Ms Costantine subjectively preferred to occupy.
Ms Costantine’s claims this office relocation, and the position she says she was asked to occupy in the office layout, caused her to feel isolated and diminished. It is a claim that falls away when one takes into account the additional details provided by Ms Slattery. And it is rather inconsistent with another complaint Ms Costantine made about a conversation with Ms Slattery on 30 October 2012. That conversation took place when Ms Slattery was standing at her work space and talking to Ms Costantine over the top of the partition. Ms Costantine, for the purpose of voicing her complaint about that conversation, described it as one that took place in front of the BI&IM team members. Against that background, and the matters I referred to in the preceding paragraph, Ms Costantine’s complaint about the office relocation, and its effect on her, is quite lacking in force, unconvincing and unreliable. I do not accept it.
The fact that Ms Slattery delegated to Ms Costantine the role of achieving a space utilisation that pre-empted the claims of the other team leader conveys to me exactly the opposite connotation to the view that Ms Costantine proffered. Ms Slattery, whether justifiably or not, attached some importance to securing the optimum available office space for her team and (at least on Ms Costantine’s view) charged her with the task of doing what was required to secure that perceived advantage. Furthermore, the fact that Ms Costantine later occupied the workspace next to Ms Slattery was not indicative of her exclusion from any part of the team, nor was it in any sense indicative of an alienation between Ms Slattery personally and Ms Costantine. The fact that Ms Costantine made no contemporaneous complaint or criticism conveys to my mind the likelihood that she continued to perceive herself as an integral and accepted part of the BI&IM team.
I am satisfied that this episode, relating to the Parramatta office accommodation, was not in any sense illustrative or indicative of Ms Costantine’s isolation or alienation within the BI&IM team. On the contrary, I find that Ms Costantine’s portrayal of the particular circumstances as supporting her general complaints of unfair treatment and alienation, reflects a distorted and highly unlikely recollection of the actual reality. I specifically find that her claims of feeling isolated and being unfairly dealt with in 2012 as a result of this episode are unreliable. I reject all her complaints and assertions about this matter.
12 & 18 JULY 2012 – THE OPAL EMAIL &REACTION TO IT
As I indicated in paragraph 29 above, Ms Costantine had a role of reporting (via Mr Curcio or Ms Slattery) on compliance issues to the ATO’s OPAL unit. In early July she was one of 16 recipients of various emails providing an agenda for a telephone “hook up” to be held on 12 July 2012. Late in the evening of 11 July 2012 the same recipients received a further email from the OPAL Director. It attached a spreadsheet list of “law conformance” issues that had arisen since the last “BI&IM” meeting. The email stated that OPAL did not expect answers at the meeting, suggested that only the critical issues might be discussed, and contemplated that appropriate responses might be “drip fed” as individual matters were resolved.

Even on the assumption that the Applicant’s principal submission was correct, proper analysis of the evidence reveals that only four “pre 5 November 2012” matters were capable of being regarded as having made a significant contribution to Ms Costantine’s illness. These four matters, upon each of which I will comment, were
(a)14 May 2012:- the asserted restructure
(b) 29 & 30 October 2012:- the communications between Ms Slattery and Ms Costantine about Christmas leave arrangements
(c) 5 November 2012:- the ABR “project lead” announcement.
The May 2012 restructure: I have found that Ms Costantine was fundamentally mistaken in her recollection about the details of what she called the May 2012 restructure. It was for that reason I was unable to accept her evidence about that matter. However, I have also made findings about the detail of what did occur in about April 2012. And I have recorded and accepted Mr Curcio’s evidence that the effect of the changed “chain of command” for the business analysts within the BI&IM team did contribute, with other factors relating to the very nature and purpose of the various BCIM teams and functions, to a diminution of the scope of Ms Costantine’s functions. As Mr Curcio explained, that lessening likely became most apparent around the time of the 4 December 2012 “Scorecard” meeting - an explanation consistent with Ms Costantine’s concern to retrieve the Christmas HD opportunity, and Ms Slattery’s rejected encouragement for Ms Costantine to pursue a business analyst role. Accordingly, whilst I reject Ms Costantine’s actual evidence about her perceptions of the nature and extent of the changes in April and May 2012 I do accept that both the reality, and her perception, were that her particular role within the BI&IM team was diminishing in scope and complexity and was unlikely to continue to provide her with a satisfying employment function. I accept that this was a cause of concern for her, and did significantly contribute to the onset of her illness.
The October 2012 leave discussions. I have rejected Ms Costantine’s evidence that her discussions about the leave spreadsheet led to her perceiving that Ms Slattery was accusing her of dishonesty. Ms Costantine apologised over her behaviour in relation to the leave discussions. Her apology reflected a degree of anxiety about the ongoing strength of her relationship with Ms Slattery and, although I think that this aspect of Ms Costantine’s reaction and apprehensions was actually (ie objectively) unreasonable, I do accept that she perceived herself as having lost a significant part of Ms Slattery’s previous confidence. More specifically, I accept that on and after 5 November 2012 Ms Costantine’s apprehensions about the spreadsheet leave incident (those apprehensions being as I have just summarised them) did significantly contribute to her illness.
The 5 November 2012 ABR announcement. I have found that this announcement made a significant contribution to Ms Costantine’s illness. That finding accords with one of the Applicant’s principal submissions. It was not disputed by the Respondent.
CAUSAL CONTRIBUTIONS - POST 5 NOVEMBER 2012 EVENTS
The Respondent submitted it was erroneous, in considering the potential application of SRC Act s 5A, to ignore the causal contribution of matters that occurred after 5 November 2012. This submission is, in my view, correct. The 5 November 2012 date was the date when Ms Costantine first sought treatment. But it is a gross and inaccurate oversimplification to contend that all her subsequent illness symptoms are significantly attributable only to pre 5 November 2012 events. Such a contention fails to take adequately into account (i) the absence of any relevant sick leave until February 2013, (ii) her assurances to Ms Slattery in the 4 December 2012 Scorecard meeting that she had stopped her mediation and that her health was fine, (iii) her similar request at the 5 February 2013 meeting that the panic attack she had disclosed to Ms Slattery would not count against her, (iv) her April 2013 statement that she had not required any medical treatment whilst she was on leave in December 2012 and January 2013, and (v) the statement in her April 2013 claim form that she first sought medical treatment in February 2013.
All of these considerations suggest that events after 5 November 2012 significantly contributed to Ms Costantine’s illness. I have made specific findings that several such events did contribute to her illness. And in each case, even though the Respondent submits that a significant or material contribution is not required to attract the potential operation of SRC Act s 5A, I find that the contribution was significant. I have set out my reasons for each of those findings earlier in these reasons. The matters that are the subject of my contribution findings are:
(a)4 December 2012 - the Scorecard meeting between Ms Slattery and Ms Costantine (see paragraphs 195 to 198 above)
(b)4 & 5 December 2012 - the HD dispute and the email communications between Ms Costantine and Mr Curcio after the Scorecard meeting (see paragraphs 206 to 210 above)
(c)5 February 2013 - the meeting between Ms Costantine, Mr Curcio, Ms Slattery and Mr May - (see paragraphs 221 to 224 above).
REASONABLE ADMINISTRATIVE ACTION
The April / May 2012 changes: The Applicant’s written submissions, noting that there was a difference between Ms Costantine’s evidence and that of Mr Curcio, adopted the position that whether the April / May 2012 changes involved a “restructure” as such, or merely some alteration of staffing arrangements, they were not “action taken in respect of” Ms Costantine’s employment. Rather they involved merely “operational” actions and were not excluded by SRC Act 5A(1).
The Applicant’s written submissions drew an analogy between the circumstances of the present case and those involving the bank manager in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; 125 ALD 181; [2012] FCAFC 21. In that case the Bank had altered the organisational “area” affecting Mr Reeve’s branch, and placed him under a different “area manager”. In addition, some of his staff were moved to other branches, and replaced by new employees. Both the AAT and the Full Court of the Federal Court held that these kinds of organisational, and staffing, changes, although they affected Mr Reeve’s employment, could not properly be characterised as relevant “administrative action”.
In Reeve Gray J observed that both the expressions “as a result of” (reasonable administrative action) and “in respect of” (the employee’s employment) suggested an indirectness of relationship and proximity and neither expression appeared to be “restrictive of the kind of connection that was envisaged”: see 199 FCR 463 at [29]. His Honour considered that the adjectival description of action as “administrative” was therefore the key aspect of the content of the exclusion contemplated by SRC Act s 5A(1), and sought to convey the limitation it contained by contrasting it with “operational” action. Gray J said:
31 The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. 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.
…
33 In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. This meaning may have been the one the Tribunal was attempting to express in its reasons for decision, when it referred to “legitimate human resource management actions”. Although inapt, the description used by the Tribunal is not far removed from the proper construction of the exclusion. As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. 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.
Gray J’s essential proposition - that “administrative” action only involves “what is done with respect to the employment relationship” - is valid. But it is principally informative only where the circumstances reveal a ready contrast between such matters and those “of general administration, management and the implementation of policy”. In the particular circumstances in Reeve, there was such a contrast, because the manager’s actual duties were unaffected. The relevant changes only affected the identity of his area manager, and that of (some of) the staff he directly supervised.
Rares & Tracey JJ said that the qualification “in respect of the employee’s employment”
60 distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This 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. The action must be “in respect of” something that exists – the person’s employment. 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. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
In the following paragraph of their judgment in Reeve Rares & Tracey JJ appear to apply that reasoning to distinguish between (i) the imposition of a requirement to attend particular meetings, or have regard to particular matters, and (ii) the effect on Mr Reeve of his attendance at meetings, or his apprehensions about the way particular matters might affect him. That this was broadly the kind of distinction their Honours thought the adjective “administrative” was intended to convey appears from what they later said about the inclusive examples listed in SRC s 5A(2). After observing that the examples were inclusive, their Honours said:
63 Each instance referred to in s 5A(2), … concerned something outside the actual employment, or job, that the employee was required to perform. An appraisal involved reviewing how the employee performed his or her employment and so can be seen readily to fit into action taken “in respect of the employee’s employment”. Each of the instances in s 5A(2) was of a matter that was in respect of, but apart from, ordinary duties or tasks of the employee’s employment or job itself.
On one view there is a residual ambiguity in describing “administrative” action as being “apart from ordinary duties … of the employee”. The ambiguity is whether Rares and Tracey JJ were suggesting that the actual delineation of the employee’s duties (in the sense of the functions they were required to perform) did not constitute “administrative” action. That ambiguity is apparent again later in the judgment in Reeve where, after referring to the Explanatory Memorandum for the 2006 amendments to SRC Act s 5A(1), their Honours say:
74 However, the Explanatory Memorandum did not suggest that “administrative action” was intended to cover the way in which the employee was to perform the employment itself or what were his or her duties or tasks in doing so. It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.
This passage uses the three disjunctive expressions “to define or delimit or supervise” in relation to the employment and, on one view, can be interpreted as meaning that none of those activities constitutes “administrative” action. However, I think the overall context precludes construing “administrative” in SRC Act s 5A(1) as excluding the actual delineation of the employee’s duties (in the sense of the functions they were required to perform). The distinctions that Rares & Tracey JJ were seeking to convey was rather different. There were two main points. The first was that an injury that occurred when an employee was working at a particular place or time, in accordance with his general terms of employment, could not meaningful be attributable to “administrative” action: see 199 FCR 482 at [59]. The second is that particular directions about the specific way in which a task was to be performed, could also not be regarded as “administrative” action: 199 FCR 486 at [74]. This leaves open the possibility that action which adds (or removes) a particular task or function to an employee’s duties may be “administrative” action of the relevant kind.
My findings about the changes that occurred in about April 2012 are set out in paragraphs 27 and 28. They principally involved an altered “chain of command” for the business analysts within the BI&IM team, and a related lessening of the scope of work Ms Costantine was required to do, in her primary role of providing administrative support to Ms Slattery. In that sense the changes affected Ms Costantine. But the action taken by the ATO (via Mr Curcio and the other executive staff involved in them) was not action “in respect of” Ms Costantine’s actual employment. It was not action “specific to the employee’s work or job”: see Reeve at 199 FCR 485 at [69] per Rares & Tracey JJ.
The Respondent’s submissions did not dispute that “departmental restructuring activity” generally will not be “administrative” action. But its submission was that the communication of such changes to an employee, or subsequent discussion about them, could fall within that description. I doubt the accuracy of the former submission - because communications about general structural change could not, consistently with the reasoning in Reeve, be characterised as “in respect of” Ms Costantine’s employment. But, more importantly, neither submission really addresses my specific finding - that it was the changes themselves (rather than communications about them), and Ms Costantine’s later apprehensions about their impact on the scope of her work, that provided the significant contribution to her illness.
The 5 November ABR announcement: The Applicant submitted that the 5 November ABR announcement did not constitute reasonable administrative action for the purposes of SRC Act s 5A(1) because it was “just one of the regular daily team meetings”, was a merely “operational” matter, and was not action “with respect to” Ms Costantine’s employment. The Respondent, on the other hand, contended that the circumstances involved “administrative” action within either or both of two of the examples set out in the SRC Act - namely s 5A(2)(a) (performance appraisal), and s 5A(2)(f) (failure to obtain a benefit).
According to the findings I have made the ABR announcement at the video conference on 5 November 2012 was part of a planned meeting for the generality of the BCIM team. The matters discussed at the video conference were not specific to Ms Costantine’s employment. They did not involve any assessment of, or even discussion about, her work performance. Indeed, on the basis of the evidence of Mr Curcio and Ms Slattery, the announcement of Mr Ingram as the “project” lead had no effect on Ms Costantine’s anticipated role or responsibility. It simply gave a specific identity to the person to whom she would have had to report, in any event, in relation to her role as “business” lead for the project.
The situation was one in which Ms Costantine perceived herself as having failed to achieve appointment to the ABR “project” lead role. But I have found that she was never told she would have such a role, that she never actually believed she had been given the role, and that both Ms Slattery and Mr Curcio regarded the information she had been given as sufficiently informing Ms Costantine to the contrary. I have found that the impact on Ms Costantine from the ABR announcement was that of a more general disappointment of her expectation that she would have a significant and active role in the ABR project. Having regard to those findings, the ABR announcement cannot properly be characterised as “administrative” action, as the Respondent contends. Neither, in my view, can it be characterised as action “with respect to her” employment. The appointment of Mr Ingram as the “project” lead did not alter Ms Costantine’s employment functions, it merely affected her perceptions of their likely significance in relation to the ABR project.
The Balanced Scorecard meeting: The Applicant’s written submissions contended that the Scorecard procedure did not apply to the BI&IM team. The submission, in my view, misread the evidence of Ms Costantine, and did not take into account either Mr Curcio or Ms Slattery’s evidence about the Scorecard process - see paragraph 181 above. Leaving that matter aside, the Applicant relied on passages in the judgments in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; 125 ALD 181; [2012] FCAFC 21 at [19] & [34]; and KRDV v NAB [2011] AATA 210 at [57] to [59], and contended that the meeting could not constitute relevant administrative action because
(a)     it was just about discussing outcomes and was a merely operational matter
(b)     was obligatory for Ms Costantine to attend, and was therefore just an aspect of her ordinary duties.
(c)     trespassed into "issues that were not in the main issues with respect to the Applicant's employment” (personal relationships, her perceptions of loss of work, the October leave issue and HD opportunities).
The Applicant’s written submissions involve an unacceptable oversimplification, and should be rejected. The Scorecard process involved a discussion, between employee and supervisor, of the employee’s performance, standards and objectives. It was a procedure that falls within the specific examples of “appraisal” and “counselling” set out in SRC Act s 5A(2)(a)&(b). The passages in the judgment in Reeve, upon which the Applicant’s submissions relied, addressed quite different factual findings, and concerned “multi person” meetings that were specifically held not to involve any appraisal of Mr Reeve’s personal performance (as distinct from that of his branch as a whole).

The fact that the discussion at the Scorecard meeting involved matters other than those specifically related to performance appraisal and counselling, does not remove that essential character of the meeting. Indeed, the additional example given in SRC Act s 5A(2)(e) brings within the concept of relevant administrative action “anything reasonable done in connection with” a reasonable appraisal or counselling. It was Ms Costantine who was primarily responsible for any of these additional matters being raised and discussed at the Scorecard meeting. I find that their discussion, particularly any discussion about Ms Costantine’s HD disappointment, was reasonable “administrative” action. I regard the Balanced Scorecard meeting and discussion as falling with the examples in SRC Act s 5A(2)(a),(b),(e) & (f).
The HD decision and the 4 & 5 December 2012 emails: The Applicant’s written submissions appear to accept that the December 2012 HD decision did constitute “reasonable administrative action” and was “in respect of” Ms Costantine’s employment. They addressed only the contention that the appointment had been made in an unreasonable manner. Irrespective of the proper inference to be drawn from the Applicant’s written submissions, the HD appointment of Mr Bruin, and the communications between Ms Costantine, Ms Slattery and Mr Curcio about Ms Costantine’s failure to obtain her own HD appointment over the Christmas / New Year period, fall clearly within the statutory example of administrative action set out in SRC Act s 5A(2)(f).
The 5 February 2013 meeting: The Applicant’s written submissions contended that this meeting did not constitute relevant administrative action, because it was an attempted “conciliation / mediation”. This submission contradicts both Mr May’s notes (which I have found to be correct) and Ms Costantine’s own statement, about the purpose of the meeting. (I have made a specific finding about her actual purpose in attending the meeting - see paragraph 214 above.) Indeed, quite contrary to the Applicant’s written submissions, Ms Costantine’s pre-prepared 69 page document contains her declaration (with a handwritten annotation confirming that she also made it orally) that “this meeting is not to resolve or explore issues that may later form part of a formal investigation”.
Ms Costantine’s stated purpose for the 5 February 2013 meeting was, principally, as a follow up to her Scorecard meeting with Slattery on 4 December 2012. The meeting fell within the inclusive examples of administrative action set out in SRC Act s 5A(2)(a)(b),(e)&(f). So also does the meeting of 5 February 2013.
ADMINISTRATIVE ACTION DONE IN A REASONABLE MANNER
Having regard to the findings I have made it is only necessary to consider the “reasonable manner” qualification in SRC Act s 5A(1) to three matters:
(a)     the Scorecard meeting
(b)     the December 2012 HD decision and the 4 & 5 December 2012 emails, and
(c)     the 5 February 2013 meeting.
The question whether administrative action has been taken in a reasonable manner has provoked some discussion about the extent to which the particular sensitivities of the individual, where they are either known to, discoverable by or foreseeable by, the employer, should be taken into account. This discussion is illustrated by the discussion in Re Thompson and Comcare [2012] AATA 752 where the Tribunal said
[61] What is “reasonable” is a question of fact: Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 ; 204 ALR 761 ; 77 ALD 331 ; [2004] FCAFC 16 per French J at [76]. Reasonableness is a chameleon-like concept, tailored to the specific circumstances, including in this matter, the criteria relating to (the person’s) employment … : Re Lynch and Comcare (2010) 114 ALD 394 ; [2010] AATA 38 at [106]. As a minimum, to be reasonable the action must be lawful: Comcare v Chenhall (1992) 37 FCR 75 ; 109 ALR 361; Re Lynch and Comcare (2010) 114 ALD 394 ; [2010] AATA 38 at [105]. The test is objective: Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 ; 204 ALR 761 ; 77 ALD 331 ; [2004] FCAFC 16 per French J at [66] and requires an examination of whether the administrative action is “sensible, moderate, … tolerable [and] fair”: Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [22]. The administrative action may be “not greatly less nor more than might be expected” in the circumstances: Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [22]. This requires an exercise of judgment about which, in borderline or difficult cases, minds may differ: Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 ; 204 ALR 761 ; 77 ALD 331 ; [2004] FCAFC 16 per French J at [76].
More significantly, in Comcare v Martinez (No 2) (2013) 212 FCR 272 at [68] & [73]; (2013) 137 ALD 481; (2013) 302 ALR 608 Robertson J warned against the dangers of (i) substituting synonyms (such as “sensible, moderate, tolerable and fair”) for the statutory expression “reasonable”, and (ii) making the foreseeable impact of conduct on the claimant employee as the determinative criterion in assessing whether conduct was “reasonable”. His Honour preferred the simplicity and brevity of Lander J’s exposition in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47–8:
… Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
According to that simple standard the use of the word “reasonable” allows the possibility that there may be more than one way of doing things. The judgment required is whether things were done “reasonably”, and not whether they could have been done more reasonably: Comcare v Martinez (No 2) (2013) 212 FCR 272 at [82].
The Balanced Scorecard meeting:   The Applicant's written submissions contended that if this meeting constituted relevant administrative action, it was nevertheless action that had not been taken in a reasonable manner. It was said to have been unreasonable because the meeting
(a)     had been brought on suddenly "well ahead of time" (by 3 hours - to 11:00am from 2:00 pm) “as a result of the emails”
(b)     included complaints about which Ms Costantine had no forewarning.
The Scorecard meeting was brought forward by three hours. But Ms Costantine’s written statement makes it very clear that this was by agreement between her and Ms Slattery. It is also true that the meeting addressed other issues than those contemplated by the Scorecard proforma. But this was also because Ms Costantine wanted to raise them. It is also true that the discussion at the meeting elicited some observations about her work, and relationship with the team, that were mildly critical of her. But this was because Ms Costantine demanded explanations for the problems or difficulties she had perceived about her role and future in the team.
I have made specific findings about the content of the Scorecard meeting - in paragraphs 180 to 193 above. In paragraph 191 I set out my impression that the meeting ended on a generally positive tone, subject to Ms Costantine’s unresolved anxiety about whether or not she had Mr Curcio’s continuing confidence. In my view, having regard to my earlier findings, the Scorecard meeting was action taken in a reasonable manner.
The HD decision and the 4 & 5 December 2012 emails: The Applicant’s written submissions contended that the HD decision was unreasonable. That is to say, it was unreasonable in the manner in which it was made, communicated to Ms Costantine, and adhered to after her complaint.
I have made detailed findings about the circumstances involved in the December 2012 HD decision - in paragraphs 177, 178, and 199 to 207. Those findings involve the awareness of Ms Costantine’s approved Christmas / New Year leave before the decision was made to provide the HD opportunity to Mr Bruin. In those circumstances there is, in my view, no basis for arriving at a conclusion that the action taken by Mr Curcio in relation to the HD appointment was in any relevant sense unreasonable. According to Mr Curcio’s evidence, Mr Bruin and Ms Costantine were the only potential HD appointees, and Ms Slattery had approved leave for a significant part of the proposed HD period.
The 5 February 2013 meeting: The Applicant’s written submissions contended that the circumstances of the 5 February 2013 meeting characterised it as relevantly “unreasonable” for the purpose of the “reasonable administrative action” exclusion in SRC Act s 5A. This was on the basis that
(a)     the meeting room was changed
(b)     Mr May’s role was not clear
(c)     Ms Costantine did not have a support person
(d)     there should have been a meeting facilitator
(e)     Mr Curcio’s conduct in the meeting was aggressive and unreasonable
I have made detailed findings about the circumstances involved in the February 2013 meeting, including specific findings about Mr Curcio’s behaviour at the meeting: see paragraphs 211 to 220 above. Having regard to those findings, I am satisfied that the actions of Mr Curcio and Ms Slattery (and Mr May) were reasonable. The actual meeting venue was a matter of no consequence. Mr May was Ms Costantine’s chosen “independent” person. His role was only as a note taker. At no stage did Ms Costantine express any desire for a support person to be present. Indeed, according to the findings I have made, she controlled the meeting. Mr Curcio’s conduct during the meeting was not unreasonable - at least not having regard to the repetition in which Ms Costantine engaged, and her provocative and unfounded charges of dishonesty by Mr Curcio.
“AS A RESULT OF” REASONABLE ADMINISTRATIVE ACTION
The parties accepted that SRC s 5A(1) operated to exclude compensation if I was satisfied that Ms Costantine’s illness was “suffered as a result of” relevant and reasonable administrative action - even if there were other significant contributors to her illness: see Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at [18] & [26].
The parties differed, however, about whether the “as a result of” criterion required satisfaction that the administrative action was a significant, or at least a material, contributor to her illness. The Respondent contended that any actual causal contribution resulted in SRC s 5A(1) applying - irrespective of its adjectival characterisation as either “significant” or “material”.
This disagreement between the parties, and the differing authorities upon which it is based, was commented on by the Tribunal in Konstandopoulos v Comcare [2014] AATA 741 at [75]-[80]. In that matter the Tribunal regarded it as unnecessary to express a concluded view on the point. This was because the Tribunal was in fact satisfied that the causal contribution of the relevant “administrative action” was in any event “significant”. I am of the same view - that the point is unnecessary to resolve. I have made specific findings about the causal contribution of each of the three matters I have characterised as “administrative” action. In each instance I have found that they made a significant contribution to Ms Costantine’s illness.
CONCLUSION
I am satisfied, for the reasons set out above, that Ms Costantine suffered her illness “as a result of” administrative action to which SRC Act s 5A(1) applies. Consequently, I affirm the decision under review.
DISCLOSURE OF NAMES
The Applicant’s written submissions sought an order prohibiting the publication of the names of any witnesses in the proceedings. The stated basis for the application was that Ms Costantine has returned to work at the ATO.
The Tribunal has a general power to direct the non-publication of the names of witnesses in the review proceedings. The exercise of that power is conditioned upon the Tribunal taking as the basis of its consideration the principle that it is desirable that Tribunal hearings are conducted in public, and that evidence should be available to the public. The exercise of the power is conditioned only on the Tribunal paying “due regard” to any reasons in favour of making such a direction: see Administrative Appeals Tribunal Act 1975 s 35(3)&(5).
The only reason the Applicant has advanced for the direction sought is that Ms Costantine has returned to work for the ATO. I do not regard that as a sufficient reason to make the order sought. Ms Costantine has made a claim for compensation for an injury the Respondent has always conceded was significantly attributed to by her employment. She was entitled to make her claim, and pursue it in the present proceedings. Her claim has failed because of the “reasonable administrative action” exclusion in SRC Act s 5A(1). In the course of these reasons I have characterised Ms Costantine’s evidence as unreliable, and rejected most of her claims about the impact particular workplace occurrences had on her. But it is in the nature of litigious controversy that the evidence of some witnesses will be accepted, and the evidence of others will be rejected. That determination is commonly expressed in language that declares the superior “reliability” of the evidence of the preferred witness. That acceptance of the superior “reliability” of a particular witness may be based on (i) satisfactory corroboration of the witness’ evidence or (ii) a “demeanour” based impressionistic assessment of the likely accuracy of the witness’s evidence. Rarely will the preference reflect a decision maker’s conclusion that the rejected witness knowingly gave false evidence. In the present matter I have taken care to express all my findings in terms of the “unreliability” of Ms Costantine’s evidence. In using that form of expression I have intentionally refrained from expressing, and do not hold, any view that Ms Costantine gave knowingly false evidence.
The subject matter of these proceedings has overtones of mental illness (significantly aggravated by work related events) and perceptions of harassment and, ultimately, fractured relationships. But those matters have been aired, in the course of the last two and a half years, in the evaluation of the present claim, and in the ATO’s investigation and determination of Ms Costantine’s April 2013 harassment claim. And she has returned to work at the ATO.
I do not regard the matter as one where it is appropriate to make the direction sought. The reason advanced by the Applicant is vague and unpersuasive. No other possible reason has been articulated in the Applicant’s submissions, and I do not think that there is any other good reason to cause me to make the direction sought.

I certify that the preceding 271 (two hundred and seventy -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Peter Taylor SC
............................[sgd]............................................
Associate
Dated 28 August 2015

Date(s) of hearing 15, 16, 22 December 2014

Date final submissions received 19 January 2015

Counsel for the Applicant M Dulhunty

Solicitors for the Applicant Carroll & O'Dea

Counsel for the Respondent M Snell

Solicitors for the Respondent Sparke Helmore

Division	GENERAL DIVISION
File Number(s)	2013/3111
Re	Bernadette Costantine
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Mr Peter Taylor SC, Senior Member
Date	28 August 2015
Place	Sydney

Date(s) of hearing	15, 16, 22 December 2014
Date final submissions received	19 January 2015
Counsel for the Applicant	M Dulhunty
Solicitors for the Applicant	Carroll & O'Dea
Counsel for the Respondent	M Snell
Solicitors for the Respondent	Sparke Helmore