Dong and Comcare (Compensation)
[2025] ARTA 1236
•20 February 2025
Dong and Comcare (Compensation) [2025] ARTA 1236 (20 February 2025)
Applicant/s: Ai Ngoc Thi Dong
Respondent: Comcare
Tribunal Number: 2023/5175
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:20 February 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the respondent is liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 in relation to the applicant’s adjustment disorder with mixed anxiety and depressed mood which is an aggravation of the applicant’s pre-existing condition.
Damien O’Donovan
........................................................................Deputy President O'Donovan
Catchwords
COMPENSATION – Safety, Rehabilitation and Compensation Act – aggravation of underlying condition – reasonable administrative action - perception of workplace events induced anxiety – where separate employment related events significantly contributed to the aggravation of applicant’s underlying condition – where some but not all significant contributors were reasonable administrative action – applicant’s adjustment disorder with mixed anxiety and depressed mood not excluded from definition of injury – decision under review set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5B, 14
Cases
Comcare v Martin [2016] HCA 4
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Lim v Comcare [2017] FCAFC 64
Wiegand v Comcare [2002] FCA 1464
Wonson v Comcare (2020) 276 FCR 613Statement of Reasons
On 15 March 2023, the applicant submitted a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The claim arose out of a series of interactions at work between the applicant, her co-workers and her supervisors. Comcare accepts that the applicant suffered an aggravation of an underlying psychological condition as a result of the interactions and this resulted in an adjustment disorder with mixed anxiety and depressed mood.[1] Comcare accepts that her condition was contributed to, to a significant degree, by her work. Consequently, the applicant’s condition meets the definition of a ‘disease’ under the SRC Act.
[1] Exhibit R 1 p 1056
However, to be compensable under the SRC Act, the ‘disease’ must also meet the statutory definition of an ‘injury’. A disease that is suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment (referred to from this point as ‘reasonable administrative action’) falls outside of the definition of ‘injury’.[2]
[2] See the definition of injury in section 5A of the SRC Act
Comcare contends that the disease from which the applicant suffers was suffered as a result of reasonable administrative action.
To resolve the issue, it is necessary to identify the events which resulted in the applicant’s underlying psychological condition being aggravated, and then consider whether they amounted to reasonable administrative action.
In the event that some, but not all of the significantly contributing events constituted reasonable administrative action, a question arises as to whether it is sufficient for one or some of the contributing events to amount to reasonable administrative action to exclude the condition from meeting the requirements of a statutory ‘injury’.
Evidence
The evidence before me consisted of the following:
· Applicant’s statement filed 8 January 2024, located at Tender Bundle tab B5, pages 812-863 (Exhibit A1)
· T-Documents, located at Tender Bundle tab A1, pages 1 to 362 (T-Documents)
· Briefing letter to Dr Malik dated 12 February 2024, located at Tender Bundle tab C1, pages 1049-1052, and supplementary report of Dr Malik dated 8 March 2024, located at Tender Bundle tab C2, pages 1053-1063 (Exhibit R1)
· Briefing letter to Dr Malik dated 2 September 2024, located at Tender Bundle tab C7, pages 1104-1105, and report of Dr Malik dated 3 September 2024, located at Tender Bundle tab C8, pages 1106-1108. (Exhibit R2)
· Statement of Joanna Zhu dated 24 May 2024, located at Tender Bundle tab C4, pages 1087-1091 (Exhibit R3)
· Statement of Joanna Zhu dated 5 September 2024, located at Tender Bundle tab C5, pages 1092-1096 (Exhibit R4)
· Statement of Mitchell Davison dated 15 April 2024, located at Tender Bundle tab C3, pages 1064-1086 (Exhibit R5)
· Statement of Mitchell Davison dated 6 September 2024, located at Tender Bundle tab C6, pages 1097-1103 (Exhibit R6)
There were some disagreements as between the applicant’s recollection of events and the witnesses who gave their account of the various incidents. I will consider the conflicts in the evidence in the course of making my findings of fact.
Findings of Fact
The applicant is an employee of Services Australia. She commenced employment there in 1998. She currently works in the Data Online Systems Division, and at the time of her claimed condition was a Senior Developer in the Technology and Digital Programmes Group.
The applicant has for some time had a poor relationship with her supervisors, Ms Joanna Zhu and Mr Mitchell Davison. The source of her problems with Ms Zhu date back to 2012, when the applicant believed that Ms Zhu was responsible for identifying her as an appropriate candidate for redundancy.[3] Her poor relationship with Mr Davison developed primarily from what she regarded as inaction on his part in relation to the poor hygiene practices of colleagues which made her feel unsafe at work. In particular, she objected to colleagues coughing at work without covering their mouths. The applicant considered it was Mr Davison’s job to insist on higher standards from her colleagues. Mr Davison, on the other hand was prepared to act on her concerns but only to a limited degree. The applicant was not satisfied with his efforts.[4]
[3] Exhibit A1, p 812.
[4] Ibid, p 813.
While the applicant was almost certainly suffering symptoms of mental illness in various periods from perhaps as early as 2012,[5] her condition deteriorated significantly in early March 2023. It is in relation to this deterioration that the applicant submitted a claim for compensation.
[5] Exhibit R1, p 1055.
At the start of March 2023, the applicant had in place a flexible working arrangement. Under that arrangement she worked from home on Mondays and Tuesdays and was required to attend the office from Wednesday to Friday. This arrangement appears to have been in place since at least September 2022.[6]
[6] T-Documents, T20, p 237.
On the morning of Wednesday, 1 March 2023 the applicant contacted her supervisor Mr Davison about an issue she was experiencing. She contacted him using the chat function on Microsoft Teams. She asked:
Hi Mitch I have pain in my feet which I am seeing a podiatrist tomorrow and it hurts to walk. Can I work from home today?[7]
[7] Exhibit R5, p 1082.
Mr Davison responded that he didn’t have any work for the applicant to do at home and indicated that he was going to get her help with ‘regression testing Medicare this week’ and this could not be done from home. He advised ‘Unless you have CRM work that you can do for the whole day then you will have to take leave.’ The applicant responded that she still had some training to do. Mr Davison queried whether it would take all day. Eventually it was agreed that the applicant could stay at home and do training but would need ‘to do another day in the office next week to make up for it so you can do the testing’.
Following this interaction, the applicant went to her doctor. In her evidence she said to the Tribunal that she went to see the doctor in relation to foot pain.
What her GP recorded is as follows:
She has concerns about people coughing at work – this is going for a long period of time.
She said she is very stress and depressed about this – she thinks there is a high chance of getting COVID 19, if co-workers did not cover their mouth when coughing/not practising basic hygiene. Managers have told her that they cannot impose force others to cover their mouth when coughing sneezing then she said that she has asked many times to work in the empty room, managers has refused.
She said she has been thinking about this all the time. This caused lots of anxiety, insomnia and feel depressed. She has seen a psychologist who suggested for comcare claim.[8]
[8] T-Documents, T28, p 348.
The doctor noted in the reason for visit section of the notes - ‘anxious’.
The doctor issued the applicant with a medical certificate which stated:
Mrs Ai Dong has medical condition and she is fit to work from home 02/03/2023 and 10/03/2023.[9]
[9] Ibid, T14, A29, p 129.
Ms Dong was adamant in her evidence that she consulted the doctor about her foot. I do not accept that evidence. While one can readily accept that doctors may not record everything a patient says to them and may not record everything accurately, in this case the doctor recorded a significant amount of detail, all of it consistent with known issues that the applicant was having, and then issued a medical certificate that addressed the issue identified by the applicant – namely, that the applicant was anxious about attending work. A certificate which identified her as fit to work from home accommodated the condition which the doctor had recorded in her notes. In these circumstances, I do not accept that Ms Dong is accurately recounting the nature of her attendance on her GP.
The respondent accepts that it is the applicant’s fear of contracting COVID-19 in the workplace which has ‘underpinned the Applicant’s requests for a benefit’ (i.e. requests to work from home, and to be provided with testing equipment).[10]
[10] Respondent’s statement of facts, issues and contentions dated 5 August 2024 at [4.15].
Discussion with Mr Davison on morning of 2 March 2023
On the morning of 2 March 2023, Mr Davison contacted the applicant. He asked her whether she was coming into the office. She responded: ‘sorry I can’t’.
Mr Davison advised the applicant that:
you can’t just work from home with[out] discussing it with your manager. the only work we have for you is to Test Medicare in the office. It is not acceptable to say your (sic) working from home if you have no work to do.[11]
[11] T-Documents, T14; A33, p 135.
The applicant responded, ‘I can’t come to the office to work’. Mr Davison responded, ‘if you are unwell then you should take time off, I can’t support you working from home if we have no productive work for you to do.’ Upon being told this, the applicant responded, ‘The med cert says I am fit to work from home’. Mr Davison responded that that didn’t mean that she could just work from home. He also noted that the certificate did not say that she could not work from the office. He reiterated that there was no work for her to do from home. Mr Davison explained:
If you want to work from home you need to have conversion (sic) with me and detail what you will be doing. I am not approving you to work from home unless you meet me ½ way and have a meaningful discussion.[12]
[12] Ibid, p 136.
Ms Dong responded, ‘I will do training today as you told me previously’.
The conversation continued where Mr Davison endeavoured to get the applicant to engage with the problem that she had no meaningful work to do at home. He eventually said that the applicant would have to take leave or find work to do from home that was not training.
The applicant was shocked by this conversation. In her claim form she describes her reaction as follows:
On Thursday 2/3, I was told that I had no programming tasks to work from home, but I had to attend work to do testing (as a Tester), else I had to take leave. Shocked, anguished and distressed I took leave on Thursday 2/3 and Friday 3/3.[13]
[13] Ibid, T8, p 29.
She contacted her GP for a telephone consultation later that day. The doctors note records the following:
She was told that office can not provide any work from home
She c/o that other team mates working from home
She thinks that this is discriminatory
She said she is a computer programmer, but office asking to do testing
She is frustrated
Anxious
Insomnia[14]
[14] Ibid, T21, p 263.
This is one of the significant contributors to the aggravation of her condition.
The POP box
In the evening of 2 March 2023, the applicant wrote to both of her supervisors Joanna Zhu and Mitchell Davison seeking further accommodation of her desire to work from home.
She wrote:
I have a medical condition and I can’t attend the office but I am fit to work from home until 10/3/2023. Attached is my medical certificate.
I am a computer programmer but my Team Leader requested me to do testing for Express Plus mobile app and asked me to attend the office to do it. I would like to request a POP box to enable me to work from home.
I believe I can perform my full duties with the right equipment and I am only asking for these arrangements for a short timeframe, based on my doctor’s advice.
If this request will not be approved, please provide your response in writing.[15]
[15] Ibid, T14; A34, p 140.
The term ‘POP box’ refers to a Point of Presence brief case which contains special antennae and routers to enable a highly secure connection to be established to the Department’s network. The POP box enables Services Australia issued Surface Pro devices to connect to the Services Australia corporate Wi-Fi through the 3G/4G network or through satellite (when available), as well as secure access to Services Australia systems.
They are an expensive piece of equipment and are not an item issued to staff routinely.
Ms Zhu investigated the request and responded to the applicant several days later in the following terms:
Sorry about the late reply, I was trying to get more information about POP box.
The short answer for POP box is, the agency no longer hands out more POP box due to various reasons, such as costs and security risks. The POP box currently assigned are for essential need.
…
Today you didn’t attend the office and it was your scheduled day in the office, you are required to attend the office tomorrow and Friday, as there is no approvals in place and it is against your scheduled day in the office. The agreed home based arrangement needs to be followed.
As previously advised if you are going to be absent from the workplace, you will need report your absence via phone prior to your scheduled start time, in order to determine the most appropriate leave type to grant, your manager or I may request reasons for leave and discuss expectations regarding the period of leave, ensuring your right to privacy.
Thanks for forwarding the medical certificate, maybe you have attached wrong certificate as this is the one you have provided for two days off last week. If the issue I still a request to do a home based work arrangement on a fulltime basis, I’d like to recap past Flexible Work Arrangement requests and the decision from 3 NMs previously and it is likely that the decision may not have changed, as we are still having the same barriers.
…
Please let us know if you would like to discuss further with me, I would also like to remind you that if you want to talk to a private and confidential counsellor about work related or private matters, you may make use of the Employee Assistance Program by contacting Benestar on…[16]
[16] Exhibit R5, p 1084.
In her claim form, the applicant describes this interaction in the following terms:
On Friday 3/3, I asked my director for equipment (POP box) to work from home (testing 6/3-10/3) like all members in my team who can test at home while on flexible working arrangements/working full time at home. My request was rejected on Thursday 9/3 as the Director said Services Australia didn’t issue anymore POP boxes due to security and cost concerns.
Since 9/2022, I was informed that I had to become a Tester, so I requested to be given a POP box but was rejected. Yet when Anita Wallace joined the team from QLD on 23/12/2022 she was given a POP box.[17]
[17] T-Documents, T8, pp 23-24.
The applicant devoted considerable energy in the preparation of her case to establishing that there were other employees of Services Australia who had been given access to POP boxes. I am satisfied that there was more availability than Ms Zhu represented in her email. I am however, satisfied that POP boxes are a restricted commodity and that Ms Zhu had made inquiries and formed a reasonable opinion about how readily one could be obtained.
Relevantly, in May 2022 the Director, Network and Telecommunications Branch of the Department advised Mitchell Davison:
…we don’t have any other PoP’s available. We are looking at recalling these POP’s. Just a reminder these POP’s were a temporary solution.[18]
[18] Exhibit R3, p 1090.
Ms Zhu also confirms in her statement that the POP box obtained for Ms Wallace was the result of having an unused one in the Brisbane office. As the applicant had an arrangement whereby she was to work in the office three days a week (being the only days on which she was required to undertake testing), there was no business need for her have a POP box issued. That was not the case in relation to Ms Wallace.
Discussion concerning retirement
The next incident which is claimed to have provoked the applicant’s psychological condition occurred on 8 March 2023. The applicant describes it in the following terms:
On Wednesday 8/3 at 11.30am, Joanna Zhu – my director – had an MS Teams meeting with me in which she asked why I hadn’t retired and she couldn’t understand why anyone would work beyond 60 and not retire to enjoy life. She also mentioned that later on there wouldn’t be any SAP CRM work for me to work on and I have to learn new skills. I feel what my Director told me was undue influence and pressure for me to retire. My team has 3 full-time testers. I am an SAP CRM developer and I would like to work as an SAP CRM developer and not as a Tester. Services Australia terminated 1,000 IT SAP CRM developer contractors and I am sure there is a great need for developers like me to work outside my team. It’s not proper fit for an SAP CRM developer like me to do testing.[19]
[19] T-Documents, T7, p 22.
Ms Zhu’s account of the meeting is as follows:
As EL2 director, I had a discussion with Ms Dong on 8 March 2023 about her Workplace Adjustment request (16552) to work in an office room at the work. Ms Dong had sent a number of follow up emails to line manager, director and National Manager, she appeared to be anxious about the outcome. The purpose of the meeting was to assure Ms Dong that we are working closely with HR and National Disability Access Coordinator to assess her request, so that we can make necessary changes to remove or minimise the barriers for her to participate in the workplace.
As EL2 Director, I have worked with Ms Dong in the same team on and off for around 10 years, I felt it is safe and necessary to have formal or informal discussion with my staff about their career plan. It was intended to understand Ms Dong’s career plan and the continuous growth need, so that adequate support and opportunities can be provided. Ms Dong indicated during Teams chat on 8 March 2023 that she has no intention to retire.[20]
[20] Ibid, T14B, p 163.
I am not satisfied that Ms Zhu did make the comment attributed to her about not understanding why Ms Dong had not retired to enjoy life. Ms Dong has misremembered or misrepresented other matters in these proceedings and I am not satisfied that she is an entirely reliable historian. I do however accept that the topic of her career plans were discussed and that Ms Dong interpreted the discussion as an attempt to influence her to stop work. I also accept that she felt overwhelmed and pressured by the questions concerning her future plans.
There are some aspects of Ms Zhu’s account that Ms Dong challenged which I have not reproduced here. It is unnecessary for me to determine whether the contested matters were said. If they were said, they were supportive of Ms Dong continuing in the workplace. I have proceeded on the basis that they were not said.
Further discussion with supervisors
In a further discussion on 8 March 2023 at 5 pm, the applicant met with Mr Davison. In that discussion, the applicant claims that she was prevented from working at home on backlog tasks and told to attend the workplace to do testing or take leave.
Mr Davison describes this conversation in the following terms:
In the afternoon of 8 March 2023, after I had spoken to the rehab case manager for Ms Dong, I contacted Ms Dong to discuss her coming back to the office the following day. Ms Dong said she had a sore foot and could [not] come in. There was a discussion on why she was able to work from home but not the office as the office is fully accessible eg Lifts etc. Ms Dong didn’t provide suitable response and had not provided suitable medical evidence to approve any Ad Hoc work from home days.
It was explained to Ms Dong that there was no productive work for her to do from home and that there was testing that needed to be done that can only be done on site and that would benefit the team.
The discussion then moved to how work was assigned to the team and Ms Dong and I discussed how she could get work from the backlog. Ms Dong disagreed and stated she should not have to get work from the backlog that is not how it works in the agency she needs approval to do work. I gave an example of other Developers finding code maintenance work to do when they are in between projects. Ms Dong talked about how she was assigned training to do in November (2022) and ask why does she have to do testing now. It was explained to her that that is new work and the build for this testing was not done in November for her to start testing. There was a discussion on agile practices and how work is assigned and how team members can add work to the backlog and take work from the backlog to work on. The conversation with Ms Dong became challenging, and I engaged the Director to join the conversation. Ms Dong was offered to have leave or come to the office as she has not provided medical evidence to show she cannot come to the office. Ms Dong took personal leave the next day.[21]
[21] Ibid, T14C, p 166.
In her claim form, the applicant’s complaint about this interaction is expressed as follows:
…I was prevented from working at home on backlog SAP CRM tasks and told to attend the workplace to do testing (because I couldn’t test at home without a POP box) or take leave. I couldn’t attend the workplace due to foot pain and I was so distressed, I took leave.[22]
[22] Ibid, T8, pp 24-25.
I am satisfied that Mr Davison has accurately recorded the scope of the meeting and what was discussed. I am also satisfied that Ms Dong has deliberately misrepresented why she was not willing to come into the office on 9 March 2023. It had nothing to do with foot pain.
Medical Evidence
The applicant was assessed by psychiatrist Dr Malik in May 2023 at the request of the respondent’s claims manager.
She gave an account of the events which aggravated her anxiety in the period from 2 March 2023,[23] which was broadly consistent with the matters raised in her claim form.
[23] The period identified as subject to her claim – see T-Documents, T8, 32.
Dr Malik was satisfied that the applicant was suffering from a psychological disorder which was best characterised as an adjustment disorder with mixed anxiety and depressed mood. He considered that the symptoms were the result of an aggravation of a pre-existing psychological condition. He identified the stressors which caused the aggravation as:
…[the applicant] wanting to work from home while her employer was asking her to work from the office. She was not keen to be a tester and when she was asked to perform that task, she tells me she was not given equipment so she can work from home.[24]
[24] T-Documents, T20, p 237.
He summarised the development of the condition in the following terms:
[The applicant] has adjustment disorder with mixed anxiety and depressed mood which is a trauma/stressor based disorder as per DSM5. At the time of her injury, she was exposed to both work and non-work-related stressors and this is what led to a decline in her mental health and she developed the psychological injury which is an aggravation of her pre-existing symptoms.[25]
[25] Ibid, p 243.
When asked whether the applicant’s employment contributed to a significant degree, Dr Malik responded:
Yes, in my professional opinion, and the balance of probabilities I believe her employment contributed to a significant degree to the causation of her adjustment disorder…the workplace stressors were the main reason behind the decline in her mental health and development of her psychological injury.[26]
[26] Ibid.
In a subsequent report, Dr Malik was asked the following:
Would the applicant have suffered from her diagnosed condition(s) if not for:
a. Her requests to work from home being denied;
b. Being directed to undertake testing, and not being provided with the equipment to do so from home;
c. Her meeting with Ms Joanna Zhu on 8 March 2023; and
d. Her fear of contracting COVID-19 due to her perception that staff members were not adhering to hygiene requirements.[27]
[27] Exhibit R1, pp 1051-1052.
He responded:
Each of the scenarios described contributed to the exacerbation of her pre-existing conditions, and their individual and cumulative effects are considered below:
Denial of Requests to Work from Home…Without this denial it is conceivable that her psychological symptoms may not have escalated to the same degree.
Being Directed to Undertake Testing Without Adequate Equipment…The feeling of being undervalued and unsupported by her employer likely aggravated her psychological conditions.
Meeting with Ms Joanna Zhu on 8 March 2023…Without this meeting, or if the meeting had been perceived as more supportive, the aggravation of Ms Dong’s condition might have been lessened.
Fear of Contracting COVID-19 Due to Perceived Lack of Hygiene…Ms Dong’s fear of contracting COVID-19 exacerbated by her observations of inadequate hygiene practices among staff, contributed significantly to her anxiety. This fear was not unfounded…The stress associated with this fear, particularly in a work environment that she perceived as disregarding her health concerns, likely played a significant role in the aggravation of her psychological conditions. Without this specific fear, or if her workplace had implemented and enforced strict hygiene measures, it’s plausible that her anxiety related to this issue would have been substantially reduced.
In summary, while it is difficult to definitively state that Ms. Dong would not have suffered from her diagnosed conditions in the absence of these specific events, it is clear that each event contributed significantly to the aggravation of her existing psychological symptoms. The cumulative effect of these stressors, in conjunction with her pre-existing vulnerabilities, amplified the severity and clinical significance of her condition.[28]
[28] Exhibit R1, p 1058.
Consideration
As noted at the outset, the respondent accepts that the applicant’s employment contributed to the aggravation of her underlying psychological disorder to a significant degree. However, it contends that in relation to the following incidents, the conduct by the applicant’s supervisors constituted reasonable administrative action:
·denial of the applicant’s requests to work from home;
·being directed to undertake testing without being provided with the equipment to do so from home; and
·a meeting with Ms Joanna Zhu on 8 March 2023.[29]
[29] Respondent’s statement of facts, issues and contentions dated 5 August 2024 at [4.13].
The respondent accepts that the fourth identified employment contributor, the applicant’s fear of contracting COVID-19 ‘does not amount to administrative action’.[30]
[30] Respondent’s outline of submissions 27 September 2024 at [34]
I am affirmatively satisfied that the three incidents identified in paragraph [52] above constituted reasonable administrative action.
Denial of the applicant’s request to work from home
The first contributing incident identified by the applicant occurred on Thursday, 2 March 2023. On that day, Mr Davison advised the applicant that he expected her to come into the office and undertake testing or take personal leave. He did this in circumstances where the request was consistent with the work from home arrangement that was in place with the applicant and the applicant had not produced a medical certificate that said she was unfit to work in the office. The medical certificate she produced simply stated that she was fit to work from home.
The action taken by Mr Davison amounts to administrative action taken in respect of the applicant’s employment. It was not an action forming part of the everyday duties of the applicant. It was an action in relation to the applicant’s employment relationship and in particular, denied her the benefit of being able to work from home.[31]
[31] See SRC Act, s 5A(2)(f)
The approach taken by Mr Davison was reasonable. There was work to be done and the only place it could be done was in the office. The requirement was consistent with the work from home arrangement that had been agreed with the applicant. There was no meaningful work for the applicant to perform at home. He communicated with the applicant in a reasonable manner.
Given these conclusions, the aggravation of Ms Dong’s underlying condition resulting from this interaction is excluded from the statutory definition of injury, and the claim cannot be accepted. It is excluded on the basis that it was an aggravation of a disease suffered as a result of reasonable administrative action.
Denial of the POP Box
On 2 March 2023, the applicant requested a POP Box to enable her to work from home.
Several days later that request was refused. As a result, the applicant felt she was being discriminated against and this caused an aggravation of her underlying psychological condition.
I am satisfied that the refusal of the POP Box amounts to reasonable administrative action.
It was not action forming part of the everyday duties or tasks that the applicant performed in her employment.[32] What the applicant was seeking was a special benefit which would mean she could perform her work without attending the office. The refusal of the POP Box followed investigation of the request. The decision to refuse was based on the fact that the equipment was expensive and not routinely given out. Her supervisors dealt with the request in a reasonable manner. There is insufficient evidence to support the conclusion that the applicant was being singled out and treated unfairly.
[32] See Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463.
Given these conclusions, the aggravation of Ms Dong’s underlying condition resulting from this interaction is excluded from the statutory definition of injury. It is excluded on the basis that it was an aggravation of a disease suffered as a result of reasonable administrative action.
Meeting with Ms Zhu on 8 March 2023
I accept the respondent’s characterisation of this meeting. It describes it in the following terms.
On 8 March 2023, the applicant met with Ms Zhu. Two essential conversations occurred. First, a conversation where the applicant was required to attend the workplace to do testing because she could not test at home without a POP box and she was not permitted to work from home due to alleged foot pain.
In relation to the first conversation, the discussion about the applicant’s career plan amounts to administrative action taken in respect of her employment. It was not an action forming part of the everyday duties or tasks that the applicant performed in her employment. It was an action in relation to the applicant’s employment relationship because it concerned how that relationship would evolve, or might conclude (as all employment relationships ultimately do), in the future.
In relation to the second conversation, the meeting of 8 March 2023 amounts to, or indluces, administrative action taken in respect of the applicant’s employment for reasons consistent with those as discussed at paragraphs 25 and 28 above.
The action was reasonable and taken in a reasonable manner.[33]
[33] Respondent’s outline of submissions 27 September 2024 at [30]-[33]
Fears of Contracting COVID-19
The respondent does not contend that the applicant’s fears of contracting COVID-19 amounted to reasonable administrative action.[34] It does however make the submission that ‘those fears, which may justly be regarded as irrational and/or as imposing undue administrative burdens on her employer, underpinned the applicant’s perceptions of the workplace and informed her actions and their consequences at the material times’.[35] So much may be true. But even accepting those propositions, it is difficult to see how they assist the respondent. The medical evidence identifies the applicant’s ‘fear of contracting COVID-19 due to her perception that staff members were not adhering to hygiene requirements’ as contributing to the aggravation of her underlying psychological condition. The applicant identifies specific sneezing and coughing events in the workplace[36] that led to that fear, and it has never been suggested that those events did not happen.
[34] Respondent’s statement of facts, issues and contentions dated 5 August 2024 at [4.15].
[35] Respondent’s outline of submissions 27 September 2024 at [34]
[36] See Exhibit A1
In such circumstances, the fact that the fear that the applicant felt was irrational or that it led to further aggravating interactions which are properly classed as reasonable administrative action does not mean that any disease arising from the events is not compensable.
The framing of the respondent’s submissions implicitly accepts that proposition. The basis on which the respondent contends that the applicant’s claim fails insofar as it depends upon her fear of contracting COVID-19 in the workplace, is that it is sufficient that other contributors to the aggravation of her disease constituted reasonable administrative action. The respondent contends that it does not need to establish that the applicant’s fear of contracting COVID-19 constituted reasonable administrative action, it is enough to establish that one of the contributors meets that description. If the respondent is right about that proposition, then the application must be resolved in its favour. Resolving that question is the focus of the remainder of these reasons.
Reasonable administrative action exclusion where there are multiple contributions to the condition
As should be clear from the discussion above, there are three identified contributors to the aggravation of the applicant’s underlying psychological condition which constitute reasonable administrative action and one contributor which does not. This raises the question, whether is it sufficient for the respondent to establish that some but not all of the contributors to the applicant’s disease were reasonable administrative action.
The first point to note in considering this question is that the medical evidence establishes that the four matters identified above contributed significantly to the aggravation of the applicant’s underlying psychological condition.
As noted previously, when Dr Malik was asked: ‘[w]ould the Applicant have suffered from her diagnosed condition(s) if not for:
· Her requests to work from home being denied;
· Being directed to undertake testing and not being provided with the equipment to do so from home;
· Her meeting with Ms Joanna Zhu on 8 March 2023; and
· Her fear of contracting COVID-19, due to her perception that staff members were not adhering to hygiene requirements’[37]
[37] Exhibit R1, p 1058.
He responded as follows:
Assessing the impact of specific events on Ms. Dong's diagnosed conditions requires a nuanced understanding of how these factors interact with her psychological vulnerabilities. Each of the scenarios described contributed to the exacerbation of her pre-existing conditions, and their individual and cumulative effects are considered below:
…
Fear of Contracting COVID-19 Due to Perceived Lack of Hygiene…Ms Dong’s fear of contracting COVID-19 exacerbated by her observations of inadequate hygiene practices among staff, contributed significantly to her anxiety. This fear was not unfounded…The stress associated with this fear, particularly in a work environment that she perceived as disregarding her health concerns, likely played a significant role in the aggravation of her psychological conditions. Without this specific fear, or if her workplace had implemented and enforced strict hygiene measures, it’s plausible that her anxiety related to this issue would have been substantially reduced.
…
In summary, while it is difficult to definitively state that Ms. Dong would not have suffered from her diagnosed conditions in the absence of these [four] specific events, it is clear that each event contributed significantly to the aggravation of her existing psychological symptoms. The cumulative effect of these stressors, in conjunction with her pre-existing vulnerabilities, amplified the severity and clinical significance of her condition.[38]
[emphasis added]
[38] Ibid, p 1058.
Dr Malik therefore confirms that each of the four employment events meet the statutory threshold of contributing to the aggravation of the underlying ailment to a significant degree. He specifically confirms that the perceived lack of hygiene in the workplace ‘played a significant role in the aggravation of her condition’. His comment in the last sentence merely notes that the condition would have been less severe if any one or more of the incidents had not occurred.
It is in this context that I turn to the question of whether it is sufficient for the respondent to establish that three of the identified matters constituted reasonable administrative action, to exclude the applicant’s disease from the statutory definition of ‘injury’.
For the reasons that follow, I am not satisfied that it is sufficient for the respondent to establish that three of the aggravating events constituted reasonable administrative action where the medical evidence supports the conclusion that employment events that do not constitute reasonable administrative action contributed to the aggravation of the applicant’s ailment to a significant degree.
The relevant text of section 5A of the SRC Act is as follows:
[an injury] does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
The statutory purpose of the exclusion was described in Comcare v Martin (2016) 258 CLR 467 (Martin), by reference to the explanatory memorandum as follows:
…“[to] ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action.[39]
[39] Martin at [46].
In the applicant’s case, the medical evidence is that the aggravation of her psychological condition would have been contributed to by her employment, to a significant degree, even if she had not been denied the benefit of working from home or provided with a POP Box or not met with Ms Zhu on 8 March 2023.
Giving the words of section 5A their ordinary meaning in the context in which they appear, if a person would have suffered an aggravation of an ailment, and that ailment would have been contributed to, to a significant degree, by their employment even if the events constituting reasonable administrative action are removed from the assessment, it cannot be said that the applicant’s disease was ‘suffered as a result of reasonable administrative action’. The aggravation of the applicant’s ailment would still be classified as a disease even in the absence of the reasonable administrative action because it was contributed to, to a significant degree, by her anxiety about the hygiene practices of her colleagues.
This approach is consistent with the High Court’s decision in Martin. In that case, the High Court was wrestling with a somewhat simpler scenario. The applicant had been told that she missed out on a promotion and suffered immediate psychological effects. The action of telling her that she had missed out on a promotion was found to be reasonable administrative action. Subjectively, it was not the case that the applicant suffered the psychological effect because she missed out on the promotion. What caused her to suffer the mental injury was the realisation that she would have to return to a position where she worked under a supervisor against whom she had made allegations of bullying in the past. In wrestling with this issue, the High Court considered how the test should be applied and expressed it in the following terms at [45]:
…an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.
In the present case, the applicant’s aggravation would have been a statutory disease even if the three reasonable administrative action events had not taken place. Consequently, it cannot be said that those are events ‘without which the employee’s ailment or aggravation would not have been a disease’.
The test as expressed in Martin has been the subject of consideration by the Full Court of the Federal Court on two occasions.
The first occasion was Lim v Comcare [2017] FCAFC 64 (Lim).
The facts in Lim are much closer to the circumstances that confront the Tribunal in this case.
In Lim there were three separate employment related events which had contributed to the development of the appellant’s psychological condition. Only one of them, a performance appraisal, constituted reasonable administrative action. The Tribunal said in relation to the performance appraisal, ‘…it was not the only cause. It may not have contributed to the same extent as did the [other workplace events]. But Dr Lim suffered the psychological condition as a result of the performance appraisal for the purposes of s 5A’.[40]
[40] Lim at [8], citing Re Lim and Comcare [2015] AATA 189 at [42].
The Tribunal did not consider the effect of any other administrative actions (including the other administrative actions that Comcare said contributed significantly to Dr Lim’s condition) on the basis that ‘[i]f only one cause of a condition satisfies the exclusion in s 5A, the exclusion applies – even if the condition had many separate causes’.[41]
[41] Lim at [9], citing Re Lim and Comcare [2015] AATA 189 at [43].
The Full Court did not accept that approach. It explained the Tribunal’s task in this way:
…only employment-related factors were identified as contributing to Dr Lim’s ailment. In this circumstance, applying Comcare v Martin, to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken.
In Ms Martin’s case, the High Court identified as “critical” the Tribunal’s finding that returning to her substantive position was a direct and foreseeable consequence of the decision in her mind and that this triggered the deterioration of her mental condition. There was no finding of this kind in Dr Lim’s case. In Dr Lim’s case, the Tribunal found simply that the performance appraisal contributed to the development of Dr Lim’s psychological condition. It is clear from the Tribunal’s reasons…that the Tribunal’s statement that the performance appraisal was “a cause” of Dr Lim’s ailment and that Dr Lim suffered the adjustment disorder “as a result of” the performance appraisal are supported by that finding and no other finding. The Tribunal did not address the question whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made. The failure to do so was an error of law...the exclusion in s 5A(1) will only be satisfied in her case if the Tribunal is satisfied that Dr Lim would not have suffered her adjustment disorder if the performance appraisal had not been made. In these circumstances, we conclude that the Tribunal’s decision involved legal error in the application of the causal connection in the exclusion in s 5A(1), read with s 5B of the Compensation Act.[42]
[emphasis added]
[42] Lim at [42].
Applying Lim to this case, it is not sufficient for the respondent to establish that three of four identifiable contributors to the applicant’s condition constituted reasonable administrative action. It is necessary for the respondent to establish that the applicant would not have suffered the disease from which she suffers if the three incidents that did constitute reasonable administrative action did not occur. However, in this case, the medical evidence establishes that even in the absence of the three reasonable administrative action events the applicant’s psychological condition would have been aggravated and the remaining workplace contributor would have contributed to the aggravation to a significant degree.
The respondent submits that Lim should not be understood in this way and that more recent Full Federal Court authority compels a different result in this case.
The respondent contends in its outline of submissions that the effect of the Full Federal Court’s decision in Wonson v Comcare[43] (Wonson) is that:
…there is no requirement for the Tribunal to assess the relative contributions made by the [four identified causes] of the applicant’s “disease”. In this case that means that if any one of the four above causes amounts to reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment, then the “disease” will not be an “injury” under s 5A of the Act.[44]
[43] (2020) 276 FCR 613
[44] Respondent’s outline of submissions dated 27 September 2024 at [5].
That submission overstates the principle that can be drawn from the Wonson decision.
The respondent filed further submissions in response to a post-hearing invitation from the Tribunal to address these issues. In a submission filed on 11 February 2025, the respondent explained the approach taken by the Tribunal in Wonson in the following terms:
In Wonson, Comcare had contended before the AAT that each of four separate events, the first in 2010, amounted to reasonable administrative action so that the employee’s claimed condition was excluded from the definition of “injury” … At Comcare’s invitation, the AAT considered the last event first…Having found that that action fell within the exclusion in s 5A(1), the AAT considered it unnecessary to consider the other three events on which Comcare had relied.[45]
[45] Respondent’s submissions on the issue identified by the Tribunal in its email to the parties dated 20 December 2024, dated 11 February 2025 at [10].
The reason it was unnecessary on the particular facts in Wonson to consider the other events was explained by the Full Court by reference to the following finding of the Tribunal:
…I find that had the Department not refused to reclassify the leave as requested by Ms Wonson, she would have been able to continue working in the position she held at the Agency and would not have suffered the ailment which she did…
The causal connection between the reasonable administrative action and the condition suffered by Ms Wonson is established. Consequently, the condition suffered by Ms Wonson is not an “injury” within the meaning of the Act and she is not entitled to compensation in respect of that condition.[46]
[46] Wonson at [58], citing Wonson and Comcare (Compensation) [2019] AATA 2779 at [138].
The Court went on to say:
…the effect of the Tribunal’s finding that the adjustment disorder was suffered as a result of the administrative action taken with respect to Ms Wonson’s request for the reclassification of her leave is that the ailment did not arise until 18 September 2015 at the earliest. …if Ms Wonson would not have suffered the ailment which she did if that action had not been taken, she cannot have suffered it before the time the action was taken.[47]
[47] Wonson at [62].
In other words, the Tribunal found that prior to the reasonable administrative action the applicant did not have an ailment and after the reasonable administrative action she did. The factual findings established that, in the absence of the reasonable administrative action the applicant would not have suffered the disease. The Martin test was therefore satisfied. In those circumstances it was not necessary for the Tribunal to go further. However, in Lim, the factual findings did not allow the Martin test to be addressed.
In Wonson, the Full Court separately ruled out any requirement to consider the relative contributions of all other potential contributors and confirmed that Lim ‘did not say that it was necessary for the Tribunal to consider all the other causes, let alone assess their relative contributions’.[48]
[48] Wonson at [84].
But ruling out that requirement does not obviate the need to apply the Martin test to the evidence. In this case, the evidence establishes that each of the events identified were independently aggravating and each contributed significantly. Any three of the four events can be removed from the analysis and the applicant would still pass the threshold for a finding that she suffered a disease.
If the submission advanced by the respondent and referenced at paragraph 89 above were correct, the Full Court could not have reached the decision it did in Lim. In that case, there were three separate employment related events which had contributed to the development of the applicant’s psychological condition. The Court considered that the Tribunal had failed to ask itself an essential question by ending the analysis at the point where only one contributing event had been found to constitute reasonable administrative action.
On the evidence in this case, I am satisfied that even if the applicant had not been exposed to the three reasonable administrative action events and had only been exposed to the incidents that raised her concerns about contracting COVID-19 and which aggravated her psychological condition, she would have suffered an aggravation of her underlying condition and her employment would still have contributed to the development of that condition to a significant degree. Dr Malik’s description of the fear of COVID-19 as a contributor is that it ‘significantly’ contributed to the aggravation of the applicant’s underlying condition.
I note that in its final submissions, the respondent urged a different understanding of the report of Dr Malik to the one articulated above. Having emphasised Dr Malik’s conclusion that ‘…it is clear that each event contributed significantly to the aggravation of her existing psychological symptoms’ the respondent submitted:
Based on the above matters, there is only one legally permissible conclusion open to the Tribunal in this case. That conclusion is that each of the events which are said to constitute reasonable administrative action “contributed significantly” to the applicant’s condition and must therefore have been events without which she would not have suffered a disease: Martin at [45]. In other words:
30.1. the applicant’s “requests to work from home being denied” was an event without which she would not have suffered a disease;
30.2. the applicant being “directed to undertake testing, and not being provided with the equipment to do so from home” was an event without which she would not have suffered a disease;
30.3. the meeting with Joanna Zhu on 8 March 2023 was an event without which
the applicant would not have suffered a disease.
31. Once such matters are established, that is the end of the inquiry insofar as the causal connection required to meet the exclusion from the definition of “injury” is concerned.[49]
[49] Respondent’s submissions on the issue identified by the Tribunal in its email to the parties dated 20 December 2024, dated 11 February 2025.
I do not accept that submission. In Dr Malik’s report, the use of the phrase ‘each event’ makes clear that Dr Malik is commenting on the contribution of each one of the four identified contributors disaggregated from the others. He concludes that ‘each event’ meets the statutory contribution threshold of contributing ‘significantly to the aggravation of [the applicant’s] existing psychological symptoms’. In these circumstances, it is not true to say that the applicant’s ‘request to work from home being denied’ was an event ‘without which [the applicant] would not have suffered a disease’. On the contrary, Dr Malik’s opinion is that even in the absence of that event, the applicant’s psychological condition would have been aggravated by the other employment events. He confirms that each of those events contributed to the aggravation of her ailment to a significant degree. The correct conclusion is that even if the applicant was only exposed to the fear of COVID-19 induced by her workplace, her underlying psychological ailment would still have been aggravated, and that employment event alone meets the required level of contribution, being contribution to a significant degree.
Decision
I set aside the decision under review and substitute with a decision that the respondent is liable to pay compensation under the SRC Act in relation to the the applicant’s adjustment disorder with mixed anxiety and depressed mood which developed due to an aggravation of her pre-existing condition.
Date(s) of hearing: 26 and 27 September 2024 Date final submissions received: 11 February 2025 Applicant: Self-Represented
Counsel for the Respondent: Mr Peter Woulfe Solicitors for the Respondent: Monica Macor, Sparke Helmore
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