DEVASAHAYAM and COMCARE
[2010] AATA 785
•14 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 785
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5563
GENERAL ADMINISTRATIVE DIVISION ) Re SHEILA DEVASAHAYAM Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date 14 October 2010
PlaceSydney
Decision The decision under review is affirmed.
...................[sgd]........................
Ms N Isenberg
Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – depressive disorder – condition contributed to by employment – whether condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment – decision under review affirmed
WORDS AND PHRASES – “reasonable administrative action”
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 7, 14
Hart v Comcare (2005) 145 FCR 29
Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414
Workcover Corporation of SA v Summers (1995) 65 SASR 243
Re von Stieglitz and Comcare [2010] AATA 263
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
REASONS FOR DECISION
14 October 2010 Ms N Isenberg, Senior Member Background
1. The application concerns a reviewable decision made on 24 September 2009 which affirmed a determination dated 22 April 2009 which found that Dr Sheila Devasahayam was not entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) in respect of depressive disorder.
2. Dr Sheila Devasahayam has been employed as a legal metrologist at National Measurement Institute (NMI), which is a division of the Department of Innovation, Industry, Science and Research, since 30 January 2006.
3. On 20 November 2008 Dr Devasahayam claimed compensation for “stress and anxiety and depressive symptoms related to work”. Her claim was refused. Although the delegate was satisfied that Dr Devasahayam’s work was a substantial cause of her condition, the delegate concluded that the condition was a consequence of reasonable administrative action implemented appropriately and in a reasonable manner. Accordingly, the Delegate applied the exclusionary provision of s 5A of the SRC Act. That decision was affirmed on review and Dr Devasahayam now seeks review by this Tribunal.
Issues for Determination
4. The Respondent conceded that Dr Devasahayam suffers from a disease, being stress, anxiety, mild depression secondary to workplace issues, and that 10 November 2008 is the date of injury, as this was the date when she first sought medical treatment for the condition: s 7(4) of the SRC Act. It also conceded that the condition was contributed to, to a significant degree, by her employment with NMI.
5. It remains for me to decide, whether, as the Respondent contends, Dr Devasahayam suffered the condition because of reasonable administrative action taken in a reasonable manner in respect of her employment with NMI, pursuant to s 5A(2) of the SRC Act. If so, Dr Devasahayam’s claim must fail.
Legislative Framework
6. The liability of Comcare to pay compensation is dependant upon there being an “injury”. The term is defined in s 5A of the SRC Act as meaning:
5A Definition of injury
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Consideration
7. In view of the Respondent’s concession - see [4] above - the medical evidence need not be canvassed in detail. In summary, Dr Devasahayam attended her GP, Dr Krishna, on 10 November 2008. Dr Devasahayam was certified unfit for work until 14 November 2008 due to “on going stress in the work place”. Dr Krishna diagnosed Dr Devasahayam with “stress and anxiety and mild depressive symptoms related to work”. Dr Devasahayam was referred to Ms Nesli Karadeniz (psychologist) for counselling. Dr Krishna continued to certify Dr Devasahayam unfit for work on the basis of ongoing stress in the workplace, and Dr Devasahayam did not return to work until 5 January 2009.
8. All the available medical evidence supports a finding that Dr Devasahayam suffered from a disease, being stress, anxiety, and mild depression secondary to workplace issues. Also, from examination of the clinical notes of Homebush Medical & Dental Centre, 10 November 2008 is the “date” of injury: s 7(4) of the SRC Act.
9. The medical evidence also supports a finding that the condition was contributed to, to a significant degree, by Dr Devasahayam’s employment with NMI.
10. In summary, Dr Devasahayam asserts that her employer behaved in a manner that was inconsistent with Departmental under-performance management policies and a workplace collective agreement. She provided several different documents outlining her contentions. Attached to her initial claim for compensation was a six page document which set out a number of workplace incidents or exchanges. In her evidence and in her submissions she focused on what she said was the failure of NMI to follow correct procedures in assessing her performance, and that the process was therefore flawed. She also referred extensively to her failure to obtain a promotion. She also gave evidence of events following her return to work and up to date, which, as I indicated at the hearing, were of marginal relevance to the matters I had to decide.
11. Consistent with her statement annexed to her claim, she gave evidence about a number of issues including those relating to her June 2007 performance appraisal; being belittled and undermined by Dr Grahame Harvey; feedback from Dr Harvey in relation to her performance appraisal; failing to be provided with feedback in relation to her 8 February 2008 performance appraisal; undergoing a performance management process; being criticised by Dr Villiere that she lacked analytical skills specific to the agreed work plan; being told by Dr Villiere that she needed to amend her attitude and had no regard to the rights of other; being “squeezed out” due to a continued performance management and failing to be promoted to level 8.
12. The Respondent contends that s 5A of the SRC Act applies to exclude Dr Devasahayam’s claim for compensation, because a contributing factor to the development of her condition was reasonable administrative action taken in a reasonable manner by the employer.
13. The reasonable administrative action taken in a reasonable manner need not be the sole cause of Dr Devasahayam’s condition in order for the exclusionary provisions to apply, provided it significantly contributed to her condition: Hart v Comcare (2005) 145 FCR 29.
14. Evidence was given by Dr Devasahayam. In addition, evidence was given by Reza Bilimoria, Lyn Walsh and Dr Grahame Harvey, of NMI.
Dr Devasahayam’s Work Performance
15. Dr Devasahayam commenced employment with NMI on 30 January 2006. In her Three-Month Probation Report (28 April 2006), End-of-Cycle Feedback Review (1 May 2006) and her Six-Month Probation Report (26 June 2006), she was rated as “Fully Effective”. Each was accompanied by positive comments by Dr Grahame Harvey, Dr Devasahayam's supervisor.
16. In September 2006 Dr Harvey took Dr Devasahayam to an overseas meeting he was chairing to provide secretariat functions. In the course of the meeting, which entailed difficult negotiations with representatives of other countries, according to Dr Harvey, Dr Devasahayam expressed views that were contrary to the official Australian position. Dr Harvey told her, according to him, sotto voce, to “shut up”. He later apologised. According to Dr Devasahayam she was humiliated. There were other meetings in which she claimed he was publicly rude to her.
17. Thereafter Dr Devasahayam did not receive another satisfactory performance review. Dr Harvey gave evidence that he tried to encourage Dr Devasahayam by his positive comments in the early performance reviews. Dr Devasahayam was continually seeking his assistance but, because the area of legal metrology is so complex, he accepted this for some time. As time went on though, she did not improve as he had hoped, although she thought she was going well. In his view, she thought she knew more than him, notwithstanding that she was new to the area and he had over 25 years’ experience holding international positions. The effect of his adverse appraisal in June 2007 was that she did not receive an increment.
18. Dr Devasahayam submitted a statement titled “Shelia Devasahayam’s comments on the end of year review” dated 25 June 2007, in which she addressed comments dated 8 June 2007, feedback review dated 20 June 2007 and mid cycle review dated 18 December 2007 (sic).
19. She raised her concerns with Glenda Sandars, the General Manager, Business Services Branch, and a meeting was apparently held on 31 July 2007 between Ms Sandars, Dr Devasahayam, Dr Harvey, Lyn Walsh, the HR Manager, and a union delegate. Dr Devasahayam thought Ms Sandars had already decided to put her on underperformance management. On 8 August 2007 there was another meeting in respect of Dr Devasahayam’s “PPR”. There it was agreed that “the process had been deficient in not conveying feedback promptly, accurately and explicitly” to Dr Devasahayam.
20. An email the next day from Ms Sandars recorded that “the tasks and evaluations must be consistent with NMI 7 work level standards so that there is no misunderstanding at the time of the review about what is expected and what is delivered.”
21. Later that day Dr Devasahayam sent an email to Dr Barry Inglis, Chief Executive and Chief Metrologist, requesting he personally review her PPR appraisal for the period 2006-2007. On 16 August 2007 Dr Inglis responded to Dr Devasahayam’s request for a review of her PPR appraisal for the period 2006-2007. Dr Inglis was of the view that Dr Devasahayam was concerned about two aspects of her PPR appraisal. First, the process that was followed during the course of her PPR cycle. Second, her demonstrated performance level. In respect of the PPR process, Dr Inglis noted that:
... some of the indicators associated with the work objectives agreed were not as Specific, Measurable and Time-bound as they might have been… however, you and your supervisor did mutually agree on the objectives at the time the PPR was established... I accept that a lack of clarity in the objectives agreed may have been a contributing factor to the unsatisfactory position we have now reached.
I also note that your end-of-year assessment differs considerably from the mid-term review assessment ... if you were experiencing difficulties or required greater clarity or guidance you could have sought a formal review of objectives or expectations at any time, as part of the PPR process.
22. In respect of Dr Devasahayam’s demonstrated performance level, Dr Inglis stated:
You have been with the NMl now for more than 18 months working at level 7 in the ‘Projects and Services’ stream. The level 7 Work Standard … refers to a range of characteristics, skills and attributes and typical tasks and duties, and after 18 months I would expect to see your performance reflect these elements to the point where we can rely on your output to reflect well on the NMl and add value. On the basis of the material you have presented to me and your PPR, it is not clear to me that your demonstrated output reflects performance at level 7.
23. Dr Inglis concluded that:
… the PPR process did not work as well as it should have in your particular case and for this reason I intend to over-rule the appraisal on this occasion to the extent of granting you an increment to level 7.3, in spite of the rating of under review found by your supervisor and your General Manager. However, I am concerned about your current level of demonstrated performance and output....
24. Dr Inglis overruled the appraisal to the extent of granting Dr Devasahayam the increment. Her performance was to be reviewed in three months, and if unsatisfactory, “consideration will need to be given to implementing underperformance measures”. Dr Devasahayam said she agreed to this course. She understood that while Dr Harvey would assign her work, Dr Inglis would personally review her performance.
25. Dr Harvey’s understanding was that the three months informal underperformance management would precede the formal process. He disagreed with what Dr Inglis had done in relation to the increment, but understood Dr Inglis had been concerned about consistency, given that Dr Devasahayam’s earlier performance appraisals had been positive. Dr Harvey regarded this as one of the many instances when Dr Devasahayam had been “given the benefit of the doubt”.
26. There were emails between July and September 2007 in which Dr Harvey provided feedback about the project Dr Devasahayam was then undertaking.
27. At the end of three months, on 30 November 2007, a meeting was called to review Dr Devasahayam’s performance during the three month performance review period as stipulated in Dr Inglis’ letter. The meeting was attended by Dr Inglis, Dr Harvey, Ms Walsh and Dr Devasahayam. Dr Devasahayam said that although she had sent all her assignments to Dr Inglis, at the meeting Dr Inglis still sought Dr Harvey’s views, and Dr Harvey continued to insist on underperformance management. Ms Walsh’s recollection was that Dr Inglis and Dr Harvey agreed that Dr Devasahayam was not performing at her designated level. Shortly after the meeting Dr Inglis retired. Dr Devasahayam contended that after the meeting nobody assessed her work. Ms Walsh’s recollection of the meeting was that Dr Harvey and Dr Inglis were of the view that Dr Devasahayam was not performing at Level 7.
28. On 17 December 2007, Dr Harvey completed a Mid-Cycle Feedback Review for the period 2007-2008 for Dr Devasahayam. In respect of one task - in relation to an “uncertainty budget”, Dr Harvey wrote “this has gone through three versions and is still clearly incorrect”. He considered the task to be a simple one and that Dr Devasahayam had the tools to undertake it. He considered she had made fundamental mistakes, and even the arithmetic was incorrect. Dr Harvey commented “There was a discussion with the former CEO about Shelia’s level of performance and a report is being prepared for the incoming CEO”.
29. On 23 May 2008 Dr Harvey completed the End of Cycle Feedback Review of Dr Devasahayam’s performance for the period 2007-2008. Dr Devasahayam wrote that “The work tasks assigned to me were achieved within the specific time frame. They have been submitted to the supervisor. The industry tasks (e.g, Grape sugar) is still pending due to delayed response from Industry - still waiting”. Dr Devasahayam’s performance was rated as “Unsatisfactory”. Dr Harvey commented that “While tasks have been submitted, they are not representative of level 7 performance. In particular, the special tasks that were assigned to her to demonstrate competence were not performed well”.
30. In response, Dr Devasahayam commented as follows:
Lyn, As you are aware that the assessment rating given by Grahame Harvey for my performance for the period 2006-2007 was overruled by Barry Inglis, the then CEO, who gave me a fully effective rating. To uphold the procedural fairness, it is required that Grahame Harvey and others involved in (2006-2007) assessment process cannot be involved in the current assessment process (2007-2008) as this is meant to be an appeal/review process. The then CEO indicated that he will review my work not Grahame Harvey.
31. Dr Harvey agreed in cross-examination that “at some stage” he ceased to provide feedback to Dr Devasahayam because it was pointless. There was, however, a series of emails in the T documents (pp. 343-345) indicating that, at least in August 2008, Dr Harvey and Dr Devasahayam were negotiating her next PPR.
32. Dr Valerie Villiere, General Manager, Legal Metrology took over responsibility for management of Dr Devasahayam. Dr Devasahayam was critical of this change because Dr Villiere was not experienced in legal metrology. On 26 September 2008 a meeting took place between Dr Devasahayam, Dr Besley, the new CEO, Dr Harvey, Dr Villiere, Ms Walsh and a union representative. Dr Devasahayam said she went to the meeting thinking it was about her promotion application. She said she was not prepared when she was provided two options - either to accept voluntary redundancy or to undergo underperformance management. Dr Devasahayam said she agreed to undergo underperformance management because, she said, she did not want to leave. The union representative told her, she said, that it was a six week process. She said she asked Dr Besley how she had failed so she might have the opportunity to improve. She said he told her he would provide evidence later, but never did. Dr Villiere wrote that she had no recollection of Dr Besley saying such a thing and he was in no position to make comments as there had been no assessment since he had been CEO.
33. After the meeting, Dr Villiere provided Dr Devasahayam with an opportunity to provide a draft individual performance plan by 1 October reflecting her understanding of the skills required and role of the position. She was provided with documents in relation to performance management, NMI work level standards and a position profile and directed to the Australian Public Service Commission website. Another meeting was to be held later that day to discuss Dr Devasahayam’s current work.
34. Dr Devasahayam said that initially Dr Villiere had told her she could identify her own proposal for a project, but what Dr Devasahayam proposed was rejected, and instead Dr Villiere imposed a project which Dr Devasahayam thought had been suggested by Dr Harvey. Dr Devasahayam sought, and obtained, assurances that Dr Harvey would not be further involved.
35. On 10 October 2008 Dr Devasahayam was informed that, at the end of two months a decision would be reached on whether her performance was adequate. If adequate, she would resume her duties with a new PPR and Dr Harvey would remain her supervisor. If inadequate, then a new level would be identified or she would be terminated. A formal work plan was put in place to commence on 13 October 2008, and Dr Devasahayam was informed that the work plan would form the basis of a formal performance assessment. Fortnightly meetings were scheduled. The work plan sets out the behaviours, position functions and skills against which her work would be assessed, and provides characteristics of tasks and outcomes expected of someone of Dr Devasahayam’s designation. Each fortnight required specified tasks to be completed and outputs to be achieved.
36. In correspondence from Dr Devasahayam to Dr Villiere dated 13 October 2008 Dr Devasahayam was critical of Dr Harvey, and she stated that when she had met with him and Dr Inglis (on 30 November 2007) she was unaware of Dr Harvey’s comments before the meeting. Dr Villiere told Dr Devasahayam in email correspondence dated 15 October 2008 that she was only interested in Dr Devasahayam’s work performance from that week and over the forthcoming two months. She cautioned Dr Devasahayam against making defamatory remarks. She directed Dr Devasahayam to relevant documents so “you are well aware of the steps we are taking and the meaning of the process.”
37. On 24 October 2008 a meeting was convened to discuss Dr Devasahayam’s work plan. The meeting had been called early at Dr Villiere’s request. Dr Devasahayam said she agreed to accommodate Dr Villiere. The lengthy meeting was attended by Dr Devasahayam, Dr Villiere and Ms Walsh. Dr Devasahayam raised the possibility of an independent assessment of her project, but Dr Villiere considered this inappropriate. Dr Devasahayam alleged that she “... was repeatedly criticised by unjustifiable and unwarranted questions and comments”.
38. Although meetings were to be held fortnightly, another meeting was convened on 31 October 2008 to discuss Dr Devasahayam’s work. Dr Villiere told Dr Devasahayam that her performance to that date against the work plan indicated that she was not meeting the required standards and an “Underperformance Record of Discussion” was completed. Dr Villiere wrote “Two reports provided failed to provide the information in a format and with details that would enable [sic] to take an informed decision without important re-writing. Failed to understand the difference between a policy and a scientific document”. Dr Devasahayam strongly disagreed with Dr Villiere’s views. Dr Villiere wrote that she was going to start drafting a recommendation to the delegate on termination of employment. Dr Villiere terminated the work plan because the outcome was not satisfactory. She also had reservations about Dr Devasahayam’s behaviour, and was not prepared to continue the process because Dr Devasahayam would have had extensive dealings with external stakeholders. Dr Devasahayam was to provide a “show cause” by 5 November 2008 “with the possibility to provide a policy type document on the milk measurement as per work plan”.
39. In correspondence dated 3 November 2008, Dr Villiere wrote to Dr Devasahayam informing her that that her recommendation of termination would be based on:
1. employee failed to provide satisfactory reports despite meetings being held explaining the quality required; employee does not have the skills required at NMI level 7 in particular analytical skills; project management skills, self management;
2. employee does not demonstrate any willingness to amend her attitude towards her work quality and refuses to take responsibility for her failure;
3. employee does not demonstrate any willingness to amend her attitude towards her supervisor(s) and her peers; however she justifies her behaviour as her rights without any regard for someone else’s rights,
and confirming that Dr Devasahayam was invited to “‘show cause’ with information on how she [had] contributed to the Legal Metrology Policy section’s goals”. It was proposed that, in the interim, Dr Richard Brittain, Executive Officer of Legal Metrology, would manage a new work plan against which she would continue to be assessed. This arrangement commenced on or about 7 November 2008. At about that time Dr Devasahayam was moved out of her office and into a work station, ostensibly, Dr Devasahayam said, so that she could be closer to Dr Brittain.
Dr Devasahayam’s Application for Promotion
40. At about the same time as Dr Devasahayam received her adverse End-of-Cycle Feedback Review for the period 2007-2008 in May 2008, she submitted an “NMI Proposal for Merit Advancement across a Firm Barrier”, that is to Level 8.
41. Unsurprisingly, Dr Harvey did not support Dr Devasahayam’s request for Merit Advancement or Promotion as he did “not believe Dr Devasahayam is performing at Level 7”. On 27 June 2008, the Performance Assessment Committee (PAC) reviewed Dr Devasahayam’s proposal for “Merit Advancement across a firm barrier from NMI 7.4 to NMI 8.1”. The PAC concluded that Dr Devasahayam “had not demonstrated that she meets the performance requirements of the NMI Collective agreement … at NMI 8”. Dr Laurie Besley, Chief Executive and Chief Metrologist, recorded Dr Devasahayam’s request as “Not Approved”. By correspondence dated 2 July 2008, Dr Besley informed Dr Devasahayam that her Merit Advancement case was unsuccessful.
42. On 17 July 2008, Dr Devasahayam submitted a detailed appeal. By correspondence dated 14 August 2008, Mr James Roberts, Acting Chief Executive and Chief Metrologist, informed Dr Devasahayam that the Performance Assessment Committee had reviewed her appeal regarding her unsuccessful merit advancement proposal and had not found grounds to reverse the decision.
43. Dr Harvey, who was not on the “advancement committee” said in his evidence he thought it “ridiculous” that Dr Devasahayam should even have applied for Level 8 promotion, when, in his view, she was not performing at Level 7, and in fact he regarded her performance as at that of Level 4 or 5. To achieve promotion, he said, one would need positive performance appraisals and also have made some significant advances such as international initiatives. In cross-examination he was asked why he had not “stretched” Dr Devasahayam, but said there was no point because she was performing well below her designated level (Level 7).
Dr Devasahayam’s Sick Leave
44. On 10 November 2008 Dr Devasahayam went to see her GP because of work stress. The clinical notes recorded: “Crying before starting to hear the complaints; lot of stress at work; threat for termination; under going stress; no sleep”.
45. In her evidence Dr Devasahayam said that one of the main things on her mind when she went to the doctor was that she had been asked to move out of her office, and that she had “one day” to provide her “show cause”.
46. Dr Devasahayam attended the GP again on 11 December 2008. The clinical notes record that Dr Devasahayam:
She is on stress leave because of the present work condition at Legal Metrology, National Measurement Institute, where Sheila has been criticised repeatedly and she believes unjustifiably regarding her performance. According to her she has been provided with no resources or requests pertaining to her duties, her requests for intervention has been denied. Humiliation and insults by the senior management has caused her anxiety. This has resulted in an anxiety situation presenting with headaches, sleeplessness, unable to concentrate, depression, and palpitations.
…
She would be happy to return to work provided it is in a different division in a new environment where she does not have to deal with the same managers that she was dealing with before.
47. Ms Karadeniz, the psychologist, reported that when she initially assessed Dr Devasahayam on 12 December 2008, Dr Devasahayam said that “after she voiced her objection to being humiliated by her supervisor in front of international stakeholders, her performance assessment was graded down. She reported that she was unfairly denied promotion afterwards because of the input by her supervisor”.
48. Ms Karadeniz also recorded that Dr Devasahayam reported that “she was being unfairly criticized for her work capability and attitude.”
49. Ms Aisling O’Reilly, a psychologist with Lifeworks Health Services, prepared a report dated 13 February 2009 in which she reported that Dr Devasahayam was willing to attempt to return to work, “provided her complaint about the previous performance management was addressed, and that she be treated fairly in the future.”
50. Dr Devasahayam was examined by Dr Janelle Miller, consultant psychiatrist, on 9 February 2009. Dr Devasahayam complained to Dr Miller of the matters outlined in her claim, including her dissatisfaction with the appraisal process and her failure to obtain promotion. Dr Miller observed:
However, it may be that her perception of events is distorted by personality factors (e.g. her abilities have not been properly recognised or appreciated; excessive sensitivity to criticism, and difficulty using negative feedback constructively).
Administrative Action
51. Under s 5A of the SRC Act an injury includes a disease suffered by an employee, except when a disease is suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. Subsection 5A(2) provides a non-exhaustive definition of what might be reasonable administrative action. These refer to performance appraisal, counselling, suspension or disciplinary action and “anything reasonable done in connection with” any of these examples: s 5A(2)(e). Reasonable administrative action also includes anything reasonable done in connection with the employee’s failure to obtain a promotion: s 5A(2)(f). “In connection with” has been interpreted as words which “have an ambulatory significance capable of a wide range of applications”: Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414. “Administrative action” therefore is capable of having a broad meaning.
52. “Administrative action” does not embrace every instruction of and action by an employer. Something other than a mere instruction or requirement that the worker perform her duties is required: Workcover Corporation of SA v Summers (1995) 65 SASR 243 at 247. In other words, “administrative action” must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer.
53. Dr Devasahayam’s evidence canvassed long-standing disagreements with her employer, especially with Dr Harvey, her supervisor. Having said that, I agree with the Respondent’s submission that most of the incidents or exchanges, to which Dr Devasahayam referred in the statement annexed to her claim, were appropriately categorised as administrative action, and that they were either in connection with the appraisal of Dr Devasahayam’s performance or in connection with Dr Devasahayam’s failure to obtain a promotion.
was the Administrative Action reasonable?
54. In Re von Stieglitz and Comcare [2010] AATA 263 Senior Member Professor Creyke and Dr Miller, Member, observed at [67] (footnotes omitted):
Whatever administrative action is to be taken must be ‘reasonable’. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’. …
55. Counsel for the Respondent submitted that, as Dr Devasahayam’s performance appraisal and her promotion application were conducted in accordance with all relevant policies and guidelines, the administrative action was thereby reasonable. It was submitted that I should accept the evidence of Mr Bilimoria to that effect as that of an “independent expert”, because he had not been employed at NMI before November 2008 and because of his long-standing experience in human resources management in the Commonwealth (public service). I do not accept that Mr Bilimoria is appropriately described as an independent expert, because there was evidence that he had later, and continues to have, involvement in Dr Devasahayam’s performance management.
56. In the statement annexed to her claim form lodged on 20 November 2008 Dr Devasahayam raised her failure to obtain promotion. From at least 12 December 2008 Dr Devasahayam complained to her psychologist that she had been unfairly denied promotion.
57. Mr Bilimoria’s statement annexed NMI’s Salary and Merit Advancement Guidelines (“the guidelines”) which set out criteria relevant to advancement. The guidelines also stipulate that at the annual performance assessment in the PPR cycle, employees must be rated at least as “fully effective” for consideration to advance through a firm barrier. The guidelines are broadly reflected in the NMI’s Collective Agreement.
58. The guidelines also specify that a pre-condition of advancement is that employees have at least three years’ continuous service to be eligible for consideration for merit advancement through a firm barrier in any band of any stream. At the date of her application Dr Devasahayam did not have three years’ continuous service, and it was on that basis that her application for promotion was ultimately refused when reviewed, at her request, by the Secretary of the Department in October 2009.
59. Dr Devasahayam made detailed submissions at the PAC, which committee did not consist of anyone directly involved in Dr Devasahayam’s performance management. The PAC reviewed her application and found she had not demonstrated that she met the performance requirements of the NMI Level 8.Dr Devasahayam submitted a detailed appeal, but the PAC did not find grounds to reverse the decision.
60. I find that the promotion and review process up to the date Dr Devasahayam went on sick leave (and as it transpires, also subsequently) was undertaken in accordance with the NMI’s Salary and Merit Advancement Guidelines and the NMI’s Collective Agreement. I accept this to be evidence, in itself, of a reasonable administrative action that was reasonably done in connection with Dr Devasahayam’s failure to obtain a promotion.
61. Even if this were not the case, and the promotion and review process had not been conducted strictly in accordance with the Salary and Merit Advancement Guidelines and the Collective Agreement, in my view, the process undertaken was a reasonable administrative action, that was reasonably done in connection with Dr Devasahayam’s failure to obtain a promotion. There was nothing “untoward” about the actions involved, and the administrative action was not “irrational, absurd or ridiculous”: per von Stieglitz.
Conclusion
62. I am satisfied that one of the factors contributing to Dr Devasahayam’s condition, namely her failure to obtain a promotion, amounted to reasonable administrative action taken in a reasonable manner. Accordingly, and having regard to the conclusions in Hart v Comcare (2005) 145 FCR 29, Dr Devasahayam’s psychological condition is excluded from being an “injury” for the purposes of s 5A of the SRC Act, and hence there is no liability to pay compensation under s 14 of the SRC Act.
63. Having come to that view, it was not necessary to canvass whether the management of Dr Devasahayam’s performance appraisal, and the other related matters she raised, amounted to reasonable administrative action taken in a reasonable manner, other than to note that in Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 the Full Federal Court at [79] specifically observed that “the test is whether the [administrative action] was done ‘reasonably’, not whether it could have been done more reasonably or in a different way”. I understand that Dr Devasahayam has now been given notice of termination, and I make no further comment about that.
Decision
64. The decision under review is affirmed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ...[sgd]...........................................................................
AssociateDates of Hearing 30 September and 1 October 2010
Date of Decision 14 October 2010
Appearance for the Applicant Self-represented
Counsel for the Respondent Mr D Richards
Solicitor for the Respondent Ms V Haddad, Dibbs Barker
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