Doobree and Comcare (Compensation) - [2022] AATA 3564

Doobree and Comcare (Compensation) [2022] AATA 3564 (26 October 2022)
Division:GENERAL DIVISION
File Number(s):2020/3696
Re:Keeshan Doobree
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:L M Gallagher, Member
Date:26 October 2022
Place:Perth

The reviewable decision, being the decision of a delegate of the Respondent dated 21 April 2020 that the Respondent was not liable under section 14 of the Safety Rehabilitation and Compensation Act 1988 for the Applicant’s claimed condition, is affirmed.
.............[Sgd]...........................................................
L M Gallagher, Member
Catchwords
COMPENSATION – Commonwealth employee – adjustment disorder – whether adjustment disorder syndrome contributed to, to a significant degree, by employment -reasonable administrative action – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 5A, 5A(1), 5B, 5B(1)(a), 7(4), 14, 14(1) 16, 19, 37
Cases
Comcare v Mooi (1996) 69 FCR 439
Comcare v Stewart [2019] FCA 365
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 63
Georges and Telstra Corporation [2009] AATA 731
Hart v Comcare (2005) 145 FCR 29
Keen v Workers’ Rehabilitation and Compensation Corporation [1998] SASC 7056
Lim v Comcare (2017) 250 FCR 298
Martin v Comcare [2015] FCAFC 169
Prowse v Comcare [2019] AATA 411
Re Cross and Comcare [2018] AATA 52
Re Lynch and Comcare [2010] AATA 38
Von Stieglitz and Comcare [2010] AATA 263
Wiegand v Comcare [2002] FCA 1464
Secondary Materials
REASONS FOR DECISION
L M Gallagher, Member
26 October 2022
the application

On 14 October 2019, a delegate of the Respondent determined that the Respondent was not liable under section 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) for the Applicant’s claimed condition of “anxiety, flashbacks, sleep disorders, restlessness and loss of confidence”[1] (the Claimed Condition) (the Original Decision).[2]
[1]The Respondent’s delegate at first instance, and later on review, characterised the Applicant’s claim as one for “adjustment reaction” (R1, T23 and T33). The Claimed Condition refer to those listed in the Applicant’s claim for workers’ compensation (R1, T11, p 60) and however characterised subsequently.
[2]R1, T23.
On 21 April 2020 the Respondent affirmed the Original Decision (the Reviewable Decision).[3]
[3]R1, T33.
The Applicant seeks review of the Reviewable Decision.
issues
The issue for the Tribunal is whether the Respondent is liable under s 14 of the SRC Act to pay compensation to the Applicant for the Claimed Condition. This in turn requires the Tribunal to determine:
(a)whether the Applicant suffered from an “ailment” as defined in s 4 of the SRC Act, or aggravation of such an ailment, for the purposes of the definition of “disease” in s 5B of the SRC Act;
(b)if so, whether the ailment or an aggravation of the Applicant’s ailment was contributed to, to a significant degree, by his employment for the purpose of the definition of “disease” in s 5B of the SRC Act and may therefore be an “injury” for the purposes of s 5A(1)(a) of the SRC Act;
(c)if so, whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment for the purpose of s 5A(1) of the SRC Act and is therefore excluded from the definition of “injury” under s 5A(1) of the SRC Act; and
(d)if so, the date of onset of the condition having regard to section 7(4) of the SRC Act.
BACKGROUND
In 2010, the Applicant commenced working in the Compliance Division of the Department of Human Services.[4] In December 2015, the Compliance Division became part of the Department of Health (the Agency).[5]
[4]A1 [7]; A7 [2].
[5]A1 [7]; A7 [2].
In April 2018, the Applicant commenced in the Investigation Business Management (IBM) team of the Agency as an APS6 Senior Business Management Officer.[6]
[6]A1 [11]; A7 [6].
On 10 May 2018, the Applicant and his manager, Mr Damon Coleman, Assistant Director (Mr Coleman), met to discuss the requirements of the role.[7] At this meeting, the Applicant was advised that:[8]
…he would be undertaking only Entity Analysis (EA) and not the additional APS6 work (reporting, Senate Estimates, media enquiries, Question on Notice, Question Time Briefs, Dashboard reporting) until such a time he settles in and becomes familiar with the work. This was to ensure he was best placed to complete the EA work prior to the additional APS6 requirements of the role.
[7]A1 [66]; R1, T16 p 89.
[8]R1, T16, p 89.
On 6 September 2018, Mr Jeffrey Moon, Acting Assistant Director (Mr Moon) sent an email to several staff members, including the Applicant:[9]
As part of the entity analysis processes within IBM, there is a requirement to complete 3 EA cases per week. For those staff that are brand new to the team there will be a little bit of transition with this especially with getting access to systems and used to the processes that are in place.
With everything that goes on with the team and with the various tasks that we undertake, we realise that there are occasions where three cases being completed isn’t possible.
At the end of the week, if you have completed your three EA cases, can you please send through an email to your manager indicating that you have completed your cases.
Where you don’t complete three EA cases, can you please send an email to your manager indicating why you haven’t been able to complete the three cases.
This needs to be done at the end of each week as completing the cases forms part of your PDS management.
If you have any concerns with this, please speak to your manager, [Mr Coleman], or I.
[9]R4, Attachment A.
On 30 November 2018, the Applicant and Mr Coleman had a discussion, following which Coleman sent the Applicant an email setting out the topics that were discussed.[10]

These topics included:
(a)The requirement that the Applicant commence work between 8am and 8.30am due to business needs and to continue to allow him the arrangement of assistance and training.
(b)Mr Coleman’s concerns regarding the Applicant’s failure to achieve his three completed EA cases each week.
(c)Concerns that had been raised regarding the Applicant constantly being away from his desk for extended periods without advising others, being in meeting rooms and playing with his phone.
(d)The Applicant’s concerns regarding being held to a different account than other APS6 employees, which Mr Coleman said was correct given that other APS6 undertake additional tasks aligned to the APS6 job description having completed the EA component of their work.
(e)The Applicant’s concerns about people gossiping or rumours.
[10]R1, T16.
On 12 February 2019, the Applicant’s PDS 2018/19 Mid Cycle performance review was undertaken.[11] The Applicant’s overall performance rating Partially Effective, being a two-star rating.
[11]R1, T16 pp 110-116.
On 21 March 2019, the Applicant met with Mr Coleman to discuss his training requirements.[12] These requirements were documented in an email from Mr Coleman to the Applicant on 22 March 2019 and included:
(a)One on one discussions to take place for 30 minutes every Tuesday and Wednesday to reflect on the Applicant’s case load and any issues he may have.
(b)The Applicant to advise what style of training he requires to assist in his development, by 25 March 2019, failing which he would revert to one-on-one training with Mr Moon.
(c)The Applicant to articulate any issues or concerns with process documentation to Mr Coleman, along with solutions and ideas to be workshopped as a team.
[12]R1, T5 pp 17-18.
Mr Coleman’s email dated 22 March 2019 also reiterated to the Applicant that he had been advised that:[13]
…given your two star rating in your PDS a vast and significant improvement in your performance is to be demonstrated over the next 4 weeks. If this is not demonstrated conversations will be initiated with HR regarding your performance.
You agreed that you currently have a reduced workload and this is to assist you in your development to be impeded [sic] you in performing your role. I stated I wished to see fully effective and I will supply you the support and tools to do this.
You raised concerns about the how too [sic] aspects of your role. I again reiterated you need to identify what those issues are and to discuss possible solutions.

I indicated that if at any stage you have concerns with your EA work to contact me or in my absence contact Jeff Moon whom [sic] will provide support. You were reminded to show sound judgement [sic] as Jeff also has a large workload.
I would like to again remind you that I am always available and here to support your development.
[13]R1, T5 pp 17-18.
In the period that followed,[14] the Applicant attended twice weekly one-on-one training sessions, and undertook an excel course and a report writing course.[15]
[14]Through to the Applicant’s PDS End Cycle Assessment in July 2019.
[15]R1, T16, p 120.
On 28 May 2019, Mr Coleman advised the Applicant he would continue to report to him, and that Mr Moon would continue with training and peer review to ensure consistency.[16]
[16]R1, T16, p 145.
On 7 May 2019, Mr Jaime Black (Mr Black) took over from Mr Coleman as Acting Assistant Director of the IBM Team.[17]
[17]R5 [16].
On 1 July 2019, the Applicant’s PDS 2018/19 End Cycle performance review was undertaken.[18] The Applicant’s overall performance rating was again Partially Effective, being a two-star rating.[19]
[18]R1, T16, pp 117-123.
[19]R1, T16, p 122.
On the same day, Mr Black invited the Applicant to a meeting on 3 July 2019 to discuss the performance management process.[20]
[20]R5 [19], Attachment C.
On 2 July 2019, the Applicant declined the meeting invitation.[21]
[21]R5 [21], Attachment D
On 3 July 2019, Mr Black rescheduled the meeting with the Applicant for 4 July 2019.[22]
[22]R5 [22], Attachment E.
On 4 July 2019, the meeting between Mr Black and the Applicant did not take place as the Applicant did not attend work on that day.[23]
[23]R5 [23], Attachment E
Over the next few weeks, Mr Black initiated subsequent meetings to discuss the formal underperformance management process and to initiate the Applicant’s underperformance management plan.[24] The Applicant failed to attend these meetings due to taking unplanned personal leave at the time.
[24]Being a videoconference on 10 July 2019 and a teleconference on 26 July 2019 (R5 [24], Attachment F).
The Applicant ceased work for the Agency in August 2019 and has not returned.
On 14 August 2019, the Applicant submitted a claim for workers’ compensation in respect of the Claimed Condition.[25] On his form, the Applicant stated that:
(a)he first sought medical treatment on 17 December 2017;[26]
(b)he first noticed symptoms on 12 December 2018;[27] and
(c)he had not experienced a similar symptom, injury or illness.[28]
[25]R1, T11, p 60.
[26]R1, T11, p 64. The Applicant identified Dr Molopo William Selepe (Dr Selepe) as his medical practitioner.
[27]R1, T11, p 62.
[28]R1, T11, p 64
On 26 August 2019, Mr Augustine Hwee, Clinical Psychologist (Mr Hwee), reported that the Applicant’s symptoms were consistent with “an adjustment disorder with depression and anxiety in the context of work related [sic] stress.”[29]
[29]R1, T15, p 87.
On 12 September 2019, Dr Jonathan Spear, Consultant Psychiatrist (Dr Spear) assessed the Applicant.[30] In his report dated 17 September 2019, Dr Spear provided the following diagnosis:[31]
[the Applicant] most likely has a diagnosis of adjustment disorder. He reported the onset of mental health symptoms in September 2018. He ceased work on 26 July 2019. His symptoms are of moderate severity. Adjustment disorder is a limited condition which will resolve within six months of the resolution of the stressors, which in this case appear to be work related.
…
[the Applicant]
meets the criteria for adjustment disorder as defined by DSM.

He experiences significant stressors (work related) and mental health symptoms. He does not appear to meet the DSM criteria for other mental health disorders such as major depressive disorder or generalised anxiety disorder, although he does not have some symptoms of both.
[30]R1, T20.
[31]R1, T20, p 177 and p 182.
On 14 October 2019, a delegate of the Respondent made the Original Decision on the basis that while she was satisfied that the Applicant had suffered an ailment, she considered the Applicant’s employment was not significant in the causation of his condition and in any event the Applicant’s circumstances fell within the exclusionary provisions of the SRC Act.[32]
[32]R1, T23.
On the same day, the Applicant requested reconsideration of the Original Decision.[33]

In his request, the Applicant stated:[34]
I was bullied in December 2017, then moved to another area which [sic] everything was fine. I then moved back into the compliance area in August 2018, where I was bullied again.
[33]R1, T24. The Applicant later submitted a letter from his legal representative and a statement of facts in support of his request: R1, T26, T27.
[34]R1, T24, p 216.
In a letter to the Respondent dated 16 March 2020, the Agency stated, among other things:[35]
…
There is no available evidence to suggest that [the Applicant] was spoken to in an inappropriate manner during his performance discussions, or at any other time during his employment. There is also no evidence to support that [the Applicant] has been bullied or harassed during his time within the Compliance Operations Branch.
…
The department considers that the actions taken by [the Applicant]’s managers is reasonable administrative action taken in a reasonable manner. The department supports the original determination dated 14 October 2019 which denied [the Applicant]’s claim.
[35]R1, T28, p 253.
On 23 March 2020, the Agency advised the Applicant that the outcome of the preliminary assessment of his claims were that:[36]
(a)The claims were not substantiated.
(b)On the balance of probabilities the management action taken by Mr Coleman was reasonable management action undertaken in a reasonable way.
(c)No further action would be taken under the department’s complaint processes.
[36]R1, T30, p 284.
The Applicant disagreed with the conclusions reached in the preliminary assessment and on 2 April 2020 sent a statement to the Respondent expressing his “complete disagreement” with the outcome.[37]
[37]R1, T32.
On 21 April 2020, the Respondent made the Reviewable Decision.[38] The review delegate found that:[39]
(a)The Applicant suffered from adjustment disorder with mixed anxiety and depressed mood, which had been significantly contributed to by his employment.
(b)However, the Applicant’s condition resulted from reasonable administrative action taken in a reasonable manner in respect of his employment, specifically his being informally performance managed.
[38]R1, T33.
[39]R1, T33.
On 19 June 2020, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision.[40] In his application, the Applicant said that he did not believe that his adjustment disorder was due to reasonable administrative action and rather, it was a result of bullying and victimisation.
[40]R1, T2.
On 22 September 2021, Dr Spear provided a supplementary report following his receipt of additional documentation.[41] Dr Spear remained of the opinion that the Applicant suffers from adjustment disorder,[42] however, he changed his original opinion in his earlier report such that the most significant issue appeared to be the perceived unfair performance indicators which the Applicant considered were unachievable.[43]
[41]R12. The additional documentation includes the Applicant’s witness statements (Transcript, p 123 [5]).
[42]R12, p 15 of report, [3.1].
[43]R12, p 19 [3.4].
Dr Spear provided the following revised opinion, which he stated supersedes his earlier opinion, as that was based on limited information:[44]
[44]R12 [3.4]; Transcript, p 110 [30].
After considering the additional information the most likely significant causes of his current mental health disorder are:
·Personal stressors ongoing legal disputes with Comcare, bereavement given the loss of his father in 2017, ceasing work given he reported his mental health deteriorated after he ceased work, substantial financial hardship given a reduced income after ceasing work, his requirement to use sick leave and personal leave to support himself and social isolation when he reported to his GP.
·Vulnerability to mental health disorder given repetitive negative thoughts and limited distress tolerance.
·Medical comorbidities given obstructive sleep apnoea commonly causes mental health symptoms such as low mood, insomnia, and fatigue.
·Work-related stressors:
oinformal performance management requiring limited duties, extensive additional training and support from peers and an assistant director (industrial issue),
oprocess conflict over methodologies and documentation (industrial issue),
oa fear that his employment would be terminated (industrial issue).
Other work-related concerns raised by the Applicant have included:
odisputed and unsubstantiated allegations of bullying,
oalleged interpersonal issues with a manager between August 2018 and November 2018, which most likely are no longer significant causes of his current mental health issues,
oa perception of unfairly increased workload compared to other workers which was not substantiated.
LEGISLATIve framework
Section 14(1) of the SRC Act relevantly provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A(1) of the SRC Act defines ‘injury’ as follows:
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.
Section 5A(2) of the SRC Act lists reasonable administrative action as including the following types of actions:[45]
(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.
(Emphasis added.)
[45]These examples are not exhaustive and the words “in connection with” in s 5A(2)(e) of the SRC Act have been interpreted broadly (Re Lynch and Comcare [2010] AATA 38).

‘Disease’ is defined in s 5B(1) of the SRC Act as follows:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree by the Commonwealth or a licensee.
(Original emphasis.)
Section 4(1) of the SRC Act defines ‘ailment’ to mean:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
evidence
The matter was heard in Perth on 7 and 8 December 2021. The Applicant was represented by Mr Patrick Mullally of Workclaims Australia. Comcare was represented by Counsel, Mr Tom Offer. Mr Offer was instructed by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal received the following evidence:
·Applicant’s witness statement filed on 4 February 2021 (“A1”);
·Index to Applicant’s Book of Documents filed on 4 February 2021 (“A2”);
·Applicant’s Book of Documents filed on 4 February 2021 (“A3”);
·Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 26 July 2021, filed on 27 July 2021 (“A4”);
·Applicant’s second witness statement filed on 27 July 2021 (“A5”);
·Applicant’s Second Book of Documents filed on 27 July 2021 (“A6”);
·Applicant’s Revised Statement of Facts, Issues and Contentions, filed on 8 October 2021 (“A7”);
·Letter to Dr Selepe dated 16 September 2021 and filed 8 October 2021 (“A8”);
·Applicant’s third witness statement dated 7 October 2021 and filed 08 October 2021 (“A9”);
·Applicant’s fourth witness statement dated and filed 29 November 2021 (“A10”);
·Index to Applicant’s Documents – Pursuant to Directions of 16 September 2021 and filed 29 November 2021 (“A11”);
·Index to Applicant’s Documents – Pursuant to Directions of 15 June 2021 and filed 29 November 2021 (“A12”);
·Respondent’s T-Documents (T1-T36, 373 pages) filed on 17 July 2020 (“R1”);
·Respondent’s Supplementary T-Documents (ST1-ST8, pages 1-906) filed on 1 April 2021 (“R2”);
·Respondent’s Supplementary T-Documents filed on 22 September 2021 (ST9-ST10, pages 907 - 1022) (“R3”);
·Witness statement of Jeffrey Moon dated 29 June 2021 (“R4”);
·Witness statement of Jamie Black dated 29 June 2021 (“R5”);
·Respondent’s Statement of Facts, Issues and Contentions filed 23 August 2021 (“R6”);
·Witness statement of Damon Coleman dated 30 August 2021 (“R7”);
·Respondent’s Amended SFIC filed 23 September 2021 (“R8”);
·Respondent’s Index of Documents (“R9”);
·Respondent’s Statement of Issues filed 23 August 2021 (“R10”);
·Briefing letter to Dr Spear dated 8 September 2021 (“R11”); and
·Supplementary Report of Dr Spear dated 22 September 2021 (“R12”).
At hearing, oral evidence was given by Dr Spear, Mr Coleman and Mr Moon. The witnesses’ reports and statements were provided prior to the hearing as follows:
oThe Applicant, in person – A1, A5, A9, A10 and numerous documents within R1.
oMr Hwee, by telephone – A11, document 7; R1, T10 and T15.
oDr Spear, by telephone – R1, T20; R12.
oMr Black, by telephone – R5.
oMr Coleman, by telephone – R7.
oMr Moon, by telephone – R4.
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
CONSIDERATION
As noted above, the issue for the Tribunal is whether the Respondent is liable under s 14 of the SRC Act to pay compensation to the Applicant for the Claimed Condition. This in turn requires determination of each of the sub-issues set out at para [4] above.
Whether the Applicant suffered from, at the relevant time and/or continues to suffer from an ailment, and if so, the appropriate diagnosis of that ailment
The parties accept[46] and the Tribunal finds that the Applicant’s Claimed Condition is an ailment in accordance with the definition of “ailment” in ss 4(1) of the SRC Act[47] and for the purposes of subsection 5B(1) of the SRC Act.
[46]See, for example, R8 [4.1].
[47]An ailment being a condition outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi [1995] FCA 508; (1996) 69 FCR 439]. See also the discussion of ‘ailment’ in the SRC Act in the context of psychological conditions in Prowse v Comcare [2019] AATA 411 at [68]-[70] (Prowse).
In making this finding, the Tribunal relies on Dr Spear’s report dated 12 September 2019,[48] which diagnosed the Applicant with adjustment disorder with symptoms of depression and anxiety.[49] Dr Spear’s diagnosis is maintained in his later report of 21 September 2020,[50] and is consistent with Mr Hwee’s observations of the Applicant in his various reports.[51]
Whether the Applicant’s adjustment disorder is a disease, that is, an ailment that was contributed to, to a significant degree, by his employment with the Agency
[48]R1, T20.
[49]See [25] above.
[50]See R12.
[51]See A11, document 7; R1, T10 and T15.
Having satisfied itself of the existence of an ailment, the next matter that falls for the Tribunal’s consideration is whether, as at and from 21 April 2020 (being the date that Comcare initially denied liability under section 14 of the SRC Act), the Applicant’s Claimed Condition was contributed to, to a significant degree, by his employment with the Agency.[52]
[52]The Tribunal refers to the thorough discussion of the meaning of “contributed to, to a significant degree” in paragraphs 128 to 135 of the decision of Re Cross and Comcare [2018] AATA 52.
The Respondent’s position is that it accepts that the Applicant’s Claimed Condition was contributed to, to a significant degree, by his employment with the Agency. The Respondent identified those significantly contributing factors as being:[53]
(a)Regular and reasonable appraisals of the Applicant’s underperformance in completing EA work.
(b)Reasonable counselling action taken by Mr Black and Mr Coleman in respect of the Applicant’s employment.
(c)Actions reasonably taken in connection with the performance appraisals and counselling action, including the arrangement of formal performance management meetings.
[53]R8, [4.2].
In his written submissions, the Applicant makes no express statement as to whether the Claimed Condition was contributed to, to a significant degree, by his employment with the Agency. However, given that:
(a)the Applicant’s primary argument is that the Respondent ought not to be excused by the reasonable administrative action exemption in s 5A(1) of the SRC Act;[54] and
(b)this presupposes the existence of the necessary causative link between the Applicant’s Claimed Condition and the employing Agency,
the Tribunal considers it necessarily follows that:
·the Applicant is of the view that his Claimed Condition was contributed to, to a significant degree, by his employment with the Agency, however,
·those significantly contributing factors (their characterisation, in the Applicant’s view, being addressed below) were not reasonable administrative action undertaken in a reasonable manner.
[54]See for e.g., A4 [29] and A7 [30].
Medical evidence
The Applicant reported to Dr Selepe that the proposed formal management process was the main source of his stress.[55]
[55]R1, T14; [63(p)] below.
In his initial report, Dr Spear identified the most significant causative employment factor to be the Applicant’s perceptions regarding his key performance indicators.[56]
[56]R1, T20, p 183, p 13 of report [7a].
In his supplementary report, Dr Spear revised his opinion after consideration of additional evidence and considered that, among other things, one of the most likely significant causes of the Applicant’s Claimed Condition was work-related stressors, being:[57]
(a)Informal performance management requiring limited duties, extensive additional training and support from peers and an assistant director (industrial issue);
(b)Process conflict over methodologies and documentation (industrial issue); and
(c)A fear that his employment would be terminated.
[57]R12, p 19 of report [3.4].
Mr Hwee considered the Applicant’s psychological symptoms had arisen in the context of work-related stress,[58] dating back to late 2017.[59]
[58]R1, T10 and T15.
[59]A11, document 7.
Other evidence
There are several actions that occurred in association with the Applicant’s employment[60] with the Agency that the parties agree[61] have significantly contributed to his claimed condition. They are:
(a)The action of appraising the Applicant’s underperformance in completing his EA work.
(b)The counselling action taken in respect of the Applicant’s employment.
(c)The actions taken in connection with the Applicant’s employment, the performance appraisals and counselling action, including the arrangement of formal performance management meetings.
(Emphasis added).
[60]The Tribunal notes the contemporaneous records and medical evidence indicating the Applicant’s main grievances relevant to the onset of his condition were 1) the weekly EA requirement and 2) the transition to a formal performance management process following the Partially Effective rating he received.
[61]Transcript, p 152 [35]-[40]. At hearing, the parties came to a common understanding of what the relevant actions before the Tribunal are, and that those actions significantly contributed to the Applicant’s Claimed Condition. Clearly, however, the parties have divergent views about the reasonableness of those actions and whether they were undertaken in a reasonable manner. These matters are addressed below at [87] - [107].
In each of the cases set out in paragraph 54 above, it is clear from the Applicant’s witness statements[62] and oral evidence[63] that he is of the strong view that:[64]
(a)His workplace had a “toxic” culture, and no reasonable steps were taken to address this or to move him into another section.
(b)He was repeatedly bullied, harassed, and victimised due to his work performance. The Agency failed to heed, act on or investigate his complaints in this regard.
(c)The KPIs set for him were unrealistic, unreasonable and he was singled out and isolated in this respect. He was not provided with additional duties as he should have been as an APS6. He felt humiliated by this.
(d)He was assigned excessive work, which made it impossible for him to complete his tasks and placed him under severe pressure.
(e)He was never properly trained to complete his work or afforded any support.
(f)When he sought advice, he received information that he felt was ambiguous or incorrect.
(g)His work and achievements were overlooked and belittled.
(h)The performance concerns raised caused him embarrassment.
[62]A1, A5, A9 and A10.
[63]Transcript, pp 19 to 76.
[64]See also A4, A7.
While the Applicant and the Agency give significantly different accounts of what happened at the relevant time,[65] the evidence from both parties is that the actual appraisal and counselling events, along with several actions taken in relation to those, did take place.[66]
[65]The Applicant’s perception of what was happening to him at work is sufficient to establish causation (see [53] above). As stated in Wiegand v Comcare[2002] FCA 1464, all that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a significant contributing factor to the ailment or an aggravation of the ailment suffered by the employee. If the incident or state of affairs actually occurred and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a significant degree to the requirements of the definition of disease are fulfilled.
[66]See for example, the evidence referenced under “Background” above.
That being so, considering Mr Hwee’s and Dr Spear’s opinions and the related relevant authorities,[67] the parties accept, and the Tribunal finds that the Applicant’s Claimed Condition is a disease, that is, an ailment that was contributed to, to a significant degree, by his employment with the Agency.[68]
[67]See for example the summary at R8 [4.8], [4.11] and [4.12].
[68]Unless the exclusion for reasonable administrative action in a reasonable manner in ss 5A(1) of the Act applies. This is addressed at paras [59]-[63] below.
Whether the disease was suffered as a result of reasonable administrative action
Having determined that the Applicant’s Claimed Condition is a disease, the next issue for determination is whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment for the purpose of s 5A(1) of the SRC Act. If so, it is excluded from the definition of “injury” under s 5A(1) of the SRC Act and liability does not arise. If not, liability arises, and the date of injury then falls for consideration.
The Respondent contends that as the ‘reasonable administrative action’ exception applies, the ‘disease’ is prohibited from constituting an ‘injury’ under s 5A of the SRC Act.

The Applicant takes the alternate view.
For completeness, it is non-contentious that the causal actions in the present matter[69] clearly fall into the category of administrative action. The Tribunal refers to the usual line of authorities in making this finding.[70] For example, in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 63 (CBA v Reeve), Gray J characterised ‘administrative action’ as:[71]
…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 a capacity as employer.
[69]Being those identified at [54] above.
[70]See the summary of authorities in Prowse [83]-[88].
[71]CBA v Reeve at [33].
As noted in Prowse:[72]
The reasonable administrative action provision refers to “reasonable administrative action taken in a reasonable manner”. With any action identified as administrative, this test in subsection 5A(1) of the SRC Act therefore requires that a distinction be made between the action and the manner in which it is taken. That is not always straightforward…
[72]At [91].
As to determining the reasonableness of an administrative action:[73]
[73]Prowse at [92], [93], [103] and [104].
In Von Stieglitz and Comcare SM Creyke noted that reasonableness was highly dependent on the particular facts of each matter:
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’.
The Senior Member quoted Georges and Telstra Corporation, where soundness of judgment, good sense, moderation, keeping expectations within reasonable bounds, tolerability and fairness are identified as among dictionary meanings of reasonableness.
…
Hart v Comcare established that where there is more than one contributing factor to an injury under the SRC Act, it is only necessary for one of the significant contributing factors to be identified as reasonable administrative action, reasonably taken, for the exclusion in subsection 5A(1) to apply, disentitling the claimant to compensation (Branson, Conti and Allsop JJ, at [20–25]). Thus in this case, while only one of the identified causative factors can be regarded as administrative action, this would be sufficient to trigger the exclusion provided all the other criteria were met. But in Martin[74] the High Court (French CJ, Bell, Gageler, Keane and Nettle JJ) held that for the exclusion to apply, the administrative action must have been a necessary cause (at 480 [47]):
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.
A similar issue was considered by the Full Federal Court in Lim v Comcare. In that case the only causative factors contributing to the applicant’s condition were employment-related. Kenny, Tracey and Bromberg JJ, upholding the appeal, concluded (at 509 [43]) that:
Given that the only causal factors identified in Dr Lim’s case are employment-related factors, 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.
(Footnotes and citations omitted, emphasis added)
[74]Referring to Martin v Comcare [2015] FCAFC 169
With respect to whether a reasonable administrative action was undertaken in a reasonable manner, this is an objective assessment of context and circumstance.[75] In Comcare v Stewart, the Federal Court set out the following considerations:[76]
[62]  …That is to say, whether or not an administrative action was undertaken reasonably is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned.
[64]  …Martin at [46] does not require that no regard is to be paid to the effect which the administrative action has, and was observed by the person taking the administrative action, to have on the employee. It was put that it would be impermissible for the Tribunal to look only at the impact on the employee but this did not mean that the Tribunal could not look at that impact.
[68]  … the issue of whether reasonable administrative action was “taken in a reasonable manner” in respect of the employee’s employment was a question of objective fact, related to the specific conduct involved, was to be assessed without the benefit of hindsight, and did not involve asking whether the action could have been done more reasonably. For this reason, the issue has to be addressed as a matter of substance.
…
[70]  Did the Tribunal in substance identify the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacted upon the worker, the circumstances in which the administrative action was implemented, and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer? Did the Tribunal in substance decide whether what it assumed for this purpose to be reasonable administrative action was taken in a reasonable manner by approaching it as a question of objective fact, to be determined against the ordinary standards of reasonable employers in all the circumstances of the case?
Oral evidence at hearing
[75]Keen v Workers’ Rehabilitation and Compensation Corporation [1998] SASC 7056.
[76][2019] FCA 365.
The Applicant

When asked, the Applicant stated his history of work issues included:
(a)Conflict with a colleague in 2013.[77] The Applicant said the issue that he had ultimately resulted in his seeing a medical practitioner and taking “a few days” off work for “work-related stress.”[78]
(b)A period in 2017 where he had a conflict with his then supervisor Robyn Manchester (Ms Manchester),[79] that they had some heated discussions and had brought complaints of bullying against each other.[80] The Applicant said his father had passed away during this time, which caused him significant stress[81] and significantly increased “everything going on” at work when he returned[82] after taking leave around September 2017.[83]
(c)Difficulties he experienced in 2018 and 2019, which have led to the present proceedings.[84]
[77]Transcript, p 20 [25], [40].
[78]Transcript, p 20 [30]-[45].
[79]Transcript, p 21 [45].
[80]Transcript, p 22 [35]-[40].
[81]Transcript, p 22 [45].
[82]Transcript, p 23 [5].
[83]Transcript, p 23 [10].
[84]Transcript, p 22 [5].
The Applicant said that on 6 December 2017 he saw a medical practitioner, Dr Shimmari, regarding his feeling stressed and sad following his father’s death.[85] The Applicant agreed that the doctor’s consultation note also said the issue was made worse by the Applicant’s manager, who was very strict and a bully.[86]
[85]Transcript, p 23 [45]. R2, ST8, p 833.
[86]Transcript, p 24 [5]. R2, ST8, p 833.
The Applicant said that the next day, on 7 December 2017, he saw Dr Selepe (his regular doctor)[87] at a different medical practice, in relation to his anxiety, his work-related stress and his experience of significant harassment at work.[88] The Applicant accepted that there was no reference in the doctor’s record to the death of his father.[89] The Applicant also agreed he had asked for a medical certificate at that consultation, seeking time off work for reasons related to workplace culture.[90]
[87]Transcript, p 25 [15].
[88]Transcript, p 25 [35]-[45]. R2, ST7, p 590.
[89]Transcript, p 24 [35].
[90]Transcript, p 27 [30]-[45]. R2, ST7, p 590.
When asked, the Applicant could not explain why he did not mention his father’s death when he presented to Dr Selepe on 7 December 2017, stating that it was untrue that he did not give “the full picture” to his doctor to buttress his claim against his supervisor.[91]
[91]Transcript, p 28 [5]-[10].
The Applicant then made several statements in response to propositions that were put to him:[92]
[92]Transcript, pp 34 to 59.
(a)He did not know whether Ms Manchester was on good terms with staff in the team he relocated to in April 2018.
(b)His feelings and suspicions about this influenced his mental approach to returning to work in this unit. He felt that he was being set up to fail.
(c)KPIs ought to be readily identifiable to managers and staff.
(d)Managers should communicate with employees about how the employee’s performance is perceived, including and problems or concerns, and where an employer is not meeting management expectations.
(e)He knew that by working in a government department there would be regular formal reviews.
(f)In the early period, Mr Coleman made clear to him his expectation that the Applicant complete three EA cases each week, with no additional responsibilities or duties until he was “up to speed.”
(g)When he first started in the IBM team, he was provided with some initial training about how to conduct EAs.
(h)He had some difficulties with carrying out the level of work that was required.
(i)Notwithstanding the extra training he requested and was provided with, he continued to have difficulties in meeting the KPIs and got some additional training. He also considered the training to be inadequate.[93]
[93]The Applicant did not identify the specific inadequacies of the training other than to say that it was never explained to him exactly what he needed to do in order to complete and EA.
(j)This additional training including one-on-one training from Mr Moon, who took him through individual EA cases that he was working on.
(k)He was aware that he was getting more training than other team members, so that he would be able to do his job at a satisfactory competence level, being three EAs per week.
(l)The plan was that once he was “up to speed” with his EAs, he would be tasked with additional duties that might take away from his EA work and be deemed their equivalent. He was never given any work in addition to his EA work.
(m)Staff output was assessed by EA work completed plus any other allocated work.
(n)He had no way of knowing what other duties other staff members in his team had been allocated.
(o)He was aware of his “Partially Effective” performance ratings in 2019, that he continued to fall short of management expectation despite ongoing training and he therefore felt the pressure of expectation.
(p)The predominant source of his stress, anxiety and deterioration in his mental state came about because he was not living up to management expectations and was going into the performance management process, which he thought would likely lead to his employment being terminated.[94] He reported as such to Dr Selepe on 16 July 2019.[95]
(q)By May 2019, he had closed his mind to any thought that his managers might be acting in a supportive manner and rather, he diverted from his assigned work to build a case against them. This included spending work time going through the EA output of the unit to try and prove his case, because he was concerned about the administrative process, along with the matters as noted at paragraph 68 (p) above.
(r)He believes that Mr Coleman or other deliberately used the KPIs to intimidate him.
(s)No adverse finding was made against him regarding the negative rumours he believed were being spread about him, for example his being away from his desk for long periods of time.
(t)His having been invited to a meeting in early July 2019, as part of a formal performance management process caused him enormous concerns. He didn’t turn up to the meeting as he wasn’t feeling well from 24 June 2019. He does not recall having failed to turn up to the meeting, went and saw Dr Selepe for a medical certificate and has not turned to work since 25 July 2019.
(u)Since then, he has been “fighting” with the Respondent, has had financial issues with respect to not working and several medical issues, including knee issues, sleep apnoea, insomnia, heartburn and other problems that have all fed into the continuing pattern of anxiety.
[94]The 10 factors the Applicant lists in his SFIC (A7, p 6, [31]-[40]) also caused him to “feel pressure,” however the Applicant stated that these were not the predominant factors. See Transcript, p 73.
[95]See R2, ST7, p 597.
Mr Hwee, Clinical Psychologist
Mr Hwee confirmed that the primary source of his information in relation to the present application came from the Applicant’s self-reporting and from the very brief referral letter from the Applicant’s GP.[96] Mr Hwee said that he has had access to Dr Spear’s report dated 17 September 2019,[97] he had not reviewed Dr Spear’s more recent report dated 22 September 2021 in any detail.[98]
[96]Transcript, p 79 [35]-[40], p 88 [35], p 89 [45] and p 90 [40]-[45].
[97]R1, T20,
[98]R12; Transcript, p 92 [30]-[35].
Mr Hwee stated that the Applicant had been referred to him on 4 July 2019 by Dr Ranika Muhandiram in the context of work-related stress and anxiety, due to bullying and increased or high pressure from management, in 2018.[99]
[99]Transcript, p 80 [5]-[35].
Mr Hwee said that at the time he saw the Applicant, he did not go into too much detail about the Applicant’s claims regarding the bullying and harassment.[100] Mr Hwee said that the focus and purpose of their contact was to provide psychological treatment and support, rather than to record the facts of the incidents.[101]
[100]Transcript, p 84 [5]-[15].
[101]Transcript, p 84 [5]-[35]. See also Transcript p 91 [10].
Mr Hwee was taken to the following passage from his report dated 25 November 2021:[102]
[the Applicant]
’s symptoms were reportedly precipitated by an increasingly difficult work situation where he described experiencing bullying, victimisation and working in a toxic environment. In our initial appointment on 5 August 2019 I noted [the Applicant] reported his difficult situation commenced in December 2017. He detailed ongoing work-related stressors since this time. This stress culminated in his taking leave from work on 26/7/2019 and he has been on leave since this time.

[The Applicant]
reports clear and ongoing work-related stressors since December 2017 and continuing through 2018, 2019 to the present time. On this basis it is clear that his psychological symptoms, described as Adjustment disorder with mixed depression and anxiety occurred in the context of his work circumstances dating back to late 2017.
[102]A11, document 7, p 1 of report.
The following exchange ensued between Mr Hwee and Mr Offer:[103]
[103]Transcript, pp 87-88, 91 and 92.
MR OFFER:Earlier in that same paragraph, you talk about his difficult work situation commencing December 2017. But you're not referring to any symptoms back that far, are you?---
MR HWEE:I believe that the circumstances as reported by [the Applicant], you know, the difficult work situation commenced in that period from December ‘18. I haven't noted what those symptoms were. Obviously I wasn't treating [the Applicant] back then, but I believe that those precipitating circumstances were contributed to, you know, cumulatively from 2017, 2018, and culminating with me seeing him in 2019. So I don't believe that his symptoms kind of just appeared when I - just prior to seeing him. I believe they appeared in the - you know, in a period precipitating my appointment in August 2019.
MR OFFER:And Mr Hwee, symptoms alone do not necessarily constitute a psychiatric condition, do they?---
MR HWEE:Certainly not, no. People can have symptoms for many causes. They can be different severity, and symptoms by themselves wouldn't necessarily constitute noteworthy of, you know, a psychiatric or psychological diagnosis.
MR OFFER:And those symptoms can wax and wane depending on situational issues?---
MR HWEE:Symptoms can certainly wax and wane. Even with a diagnosable condition, they can wax and wane.
MR OFFER:Were you informed by [the Applicant] of any other issues impacting upon his psychological condition, or state of mind, I should say, in December 2017?---
MR HWEE:Say that question again? Was I aware that - - -
MR OFFER:Of any other issues impacting upon his emotional wellbeing in December 2017?---
MR HWEE:No. The only - as my notes - the only thing that's of any significance that would have contributed to the symptoms I was seeing in August 2019 were those work circumstances. So I mean, if there was any other circumstance, like for example, I don't know, relationship stress or financial stress, then I would typically take a note of that.
MR OFFER: Yes?---
MR HWEE:The only thing I've seen suitable to make a note of is just that work timeline, which is at the bottom of that file note dated 13/18/2019.
MR OFFER:In respect to death of a parent, is that something typically you would expect to some degree of expression of symptomology?---
MR HWEE:Sure. I mean, a person would naturally - you know, typically - and obviously everyone is different. It depends on the relationship in terms of the contact with the parents or the person. But you know, typically, as you can most expect, people would have a grief response after the loss of a parent.
That would be a natural psychological response. And for most people, that's a fairly - what we call an uncomplicated grief response. And over a period of months, maybe a year or so, that psychological - that sort of psychological reaction would progress, but not to most people.
MR OFFER:In the context of reporting to you his difficult work situation in December 2017, did [the Applicant] disclose to you that his father had died in late 2017?—
MR HWEE:We didn't discuss that.
MR OFFER: Did Mr [the Applicant] disclose to you that his father had died in late 2017?
MR HWEE:No, we didn't discuss that. I'm aware that [the Applicant]’s father had passed away and was deceased. But just looking at my note of that first session we had on the 5th of the 8th, and looking at, you know, the next couple of sessions, including moving up to that 13th of the 8th, I have made no note of that being noteworthy, you know? Any complication or any particular complicated grief reaction to his father's death.
MR OFFER:He didn't tell you anything about that, other than his father or parent had died at some point in time?---
MR HWEE:I'm just looking at my notes. No, it didn't come up as noteworthy.
…
MR OFFER:And when you've talked about [the Applicant] experiencing bullying, victimisation and working in a toxic environment, you really haven't gone into that in any detail, that appears in your notes?—
MR HWEE:Do you mean the written - no, no. Well that's my actually [sic] file.

The notes of the therapy sessions or whether it's the correspondence that I've provided to with GP or other parties. No, it's not something that I've investigated in a sort of investigative manner where you might collect, you know, information from various sources to try to determine a particular set of events. (indistinct) actually - information that's been provided in the course of my contact with [the Applicant].
MR OFFER:And that's from [the Applicant] and you accept what he told you?‑‑‑
MR HWEE:Certainly.
…
MR OFFER:Mr Hwee, I note in your in your notes that you haven't made any reference to any performance management issues or any sense that [the Applicant] was not meeting management expectations, simply that he was experiencing bullying, victimisation and working. Am I characterising that correctly?
…
MR HWEE:That's certainly been something that he reports, that, you know, managers have - the workplace, he's been put under sort of a performance management process. I've not been, you know, privy to any documentation about that or how that's progressed or how it was conducted in a formal sense in terms of reviewing any documents but certainly over the course of our contact, obviously talking initially, you know, about the stresses and the work situation he's dealing with.
…
MR OFFER:But you concluded in your letter to [of] 13 August 2019 that the primary source of his psychological stress was ongoing conflict and strain regarding workplace issues. Is that still your view?‑‑‑
MR HWEE:Yes, it is. It is and by workplace issues I'm speaking, you know, quite broadly. So, again in the context of that letter it's - when I wrote it, I don't think I needed necessarily to specify exactly what those workplace issues wee [sic] but, you know, in describing it that way, I'm thinking quite broadly in terms of the whole range of issues that go on in - well, reported to be going on in [the Applicant]'s work which would include, you know, the things - all the things he found stressful which is whatever culture is there, the deadlines and work pressure he might be facing.
Dr Spear, Consultant Psychiatrist
As to Dr Spear’s reported opinion regarding the Applicant’s vulnerability to mental health disorder:[104]
MR OFFER:In relation to the vulnerability to mental health disorder, you were asked a question at one point in that report about a medical record dating from 2013 which suggested that he had previous issues with work and the impact of that on his mental wellbeing?---
DR SPEAR:Yes.
…
…I'd already noted that [the Applicant], in my opinion, had a vulnerability to mental health disorder because of these issues of negative thoughts and limited distress, because of course you could add to that the previous mental health issues in 2013, so all of them are pointers - significant indicators of a vulnerability to mental health disorder.
[104]See [33] above and transcript, pp 110-111.
As to what led Dr Spear to the view that the Applicant’s work-related stressors[105] were significant causes in the onset of his condition, Dr Spear stated:[106]
Because these were the issues that he had raised with his general practitioner, and also to the extent with myself as well during the assessment…
…
So, the ones that he reported to his GP I have noted … were occurring on or around the time of the worsening of his mental health condition, so, again, they to me seemed to be more significant than other issues…
[105]See [33] above.
[106]Transcript, p 111 [40]-[45].
Dr Spear gave further evidence regarding his opinion that the Applicant’s Claimed Condition occurred ‘as a result of’ the following actions:[107]
[107]R2, p 21 [3.6], [3/7]
a. The regular performance appraisals of the Applicant’s performance, in particular relating to his inability to meet the KPI of three EA cases per week.
b. The [sic] actions taken as part of the informal and subsequent formal performance management process commencing from approximately August 2018 when the one-on-one training commenced and culminating in the transition to a formal performance management in July 2019.
…
…[t]he reasonable administrative actions of performance review, peer support and one-on-one support from an assistant director were most likely misinterpreted by [the Applicant] as “demeaning” because of trust issues. He reported to his GP that this performance process was his main source of stress. His mental health symptoms and difficulty coping became consistent with the DSM-5 criteria for Adjustment Disorder at or around late July 2019.
…
I consider that actions taken as part of the informal and subsequent formal management process commencing from approximately early August 2018 when the one-on-one training commenced and culminating in the transition to a formal performance management in July 2019 were most likely a significant cause of Adjustment Disorder according to DSM-5 criteria because he misinterpreted these actions as “demeaning.”
I am not able to estimate where [sic] or not [the Applicant] would have experienced a mental health disorder if not for the actions listed above.
I believe that personal issues such as ongoing legal disputes with Comcare, bereavement, ceasing work, substantial financial hardship, his requirement to use sick leave and personal leave to support himself and social isolation are most likely more significant causes of his current mental health issues than the work-related actions listed above.
…
On balance, the most likely significant causes of his current mental health disorder include work-related stressors…
At hearing, Dr Spear added:[108]
When people have trust issues…When someone offers help it can be misinterpreted as being threatening, demeaning or challenging integrity, whereas the normal response - you know, for example, if I was offered assistance with my performance, then I would take it in a positive way, because it would be helpful for me. I want to work to the best standard, and my manager would sit down with me, and we would address the issues and, as I say, I would welcome it. But, [the Applicant] didn't welcome it, he saw it as demeaning, and to him that would be very stressful.
…
And these [factors] are the things I've considered to be the most significant causes currently of his mental health condition taking into account everything, whether we say it is related to his mental health due to his work condition or not isn't for me to judge.
…
…[i]t seems like the work-related stresses would be the three issues here about the performance management, the process (indistinct) and the fear of being terminated were the main triggers or precipitants for his current mental health, absolutely. Therefore they continue to be significant causes of his mental health, because they appear to be the factors which triggered his illness. So, you know, until his (indistinct) I would consider those still to be having significant impact, or even though they are in the past now, but they were the triggers which sent him off, so all the precipitants.
[108]Transcript, pp 112-114.
Mr Black

Mr Black confirmed that from July 2016 to May 2019 he was a senior investigator in the Investigations Section of the Agency[109] and in that role, he was the Applicant’s supervisor.[110] Mr Black also confirmed that between 3 December 2018 and 21 December 2018 he was on higher duties whilst Mr Coleman was on leave, as acting Assistant Director of the NSW Investigations Team and the IBM team.[111]
[109]Transcript, p 95 [10]; R5 [2].
[110]Transcript, p 96 [10].
[111]Transcript, p 96 [15]; R5 [3].
Mr Black was taken to the following paragraphs of his statement:[112]
[112]R5.
13.During the three weeks I managed [the Applicant] in December 2018, [the Applicant] did not complete a single EA report to the state where it could be approved or submitted for approval. This was notwithstanding that the cases that had been allocated to [the Applicant] were very basic and uncomplicated. I know this because I was reviewing all of his work at this time and was tasked with signing off or escalating the reports.
…
22.On Wednesday, 3 July 2019 I rescheduled the meeting for Thursday, 4 July 2019 as this was my last day in Perth before flying home. [The Applicant] responded to this invite advising that he wished to seek advice on this matter, and that due to his health he would be going home early…
23.[The Applicant] did not come into work on Thursday and therefore the meeting did not take place during my time in Perth.
24.Over the next month, I had several conversations with [the Applicant] about holding a video or telephone conference with him to initiate the underperformance management plan with him. During that time, [the Applicant] failed to attend the invited meeting due to taking unplanned personal leave. [The Applicant] ceased work in August 2019 and has not returned since…
…
26.Following [the Applicant] ceasing work, I took over all of [the Applicant]’s work, despite this not usually being the role of an Assistant Director. All of the cases that [the Applicant] had been allocated were very simple cases and I am unable to understand why he was unable to complete them. In addition to my other duties, I was able to complete at least one EA per week and some of them could be completed in under a day.
27.It is my opinion that [the Applicant] was provided with substantial support to assist him to perform well in his job. Keeshan received one-on-one training each week for months and should have easily been able to complete three EA reports per week.
When asked, Mr Black stated that at the time the Applicant had finished working in July 2019, he was unaware that the Applicant was on personal leave for medical reasons because no leave application or request had been made to him.[113] Mr Black stated that the Applicant had advised him in their subsequent telephone conversations that he was seeking medical leave and that he had asked the Applicant to provide him with the related correspondence.[114]
[113]Transcript, p 97 [35]-[40].
[114]Transcript, p 97 [40]-[45].
Mr Black gave evidence on several matters in answer to questions to put following his being directed to paragraph 8 of his statement, which reads:[115]
When I spoke to [Mr Coleman] on 30 November 2018, he advised me that [the Applicant] was still struggling with EA work. He explained that he had therefore not given [the Applicant] other more complex work, as he didn’t want to overload him or set him up to fail.
[115]R5 [8].
Mr Black then stated:[116]
(a)During the period referred in paragraph 8 of his statement,[117] the Applicant did not achieve his KPIs.
(b)During the period referred in paragraph 8 of his statement, he does not believe he saw any formal report that detailed who had completed what EAs. He did keep his own statistics in a personal spreadsheet so he would be able to indicate to his line manager what work was being completed, when required.
[116]Transcript, p 101-102.
[117]R5 [8]
Mr Coleman
Mr Coleman confirmed that from August 2017 to approximately May 2019 he was the Assistant Director in the Investigations Team and the IBM team, that he was the Applicant’s supervisor and that during the period 3 December 2018 and 21 December 2018, he was on leave and Mr Black acted in his role.[118]
[118]Transcript, p 124 [20]-[35]; R7 [2].
As to his conversation with the Applicant on 30 November 2018 regarding his concerns over the Applicant’s failure to achieve three completed EA’s per week,[119] Mr Coleman said:[120]
[119]See T26 and [9].
[120]Transcript, p 129 [45] to p 130 [5], [45], pp 131-138.
MR COLEMAN:        …I do remember the conversation, I also let him know that if he wasn't to improve vastly, he would receive a two star rating, it wouldn't have been advised to him at that point in time that he was getting two star. Because it was an informal performance discussion, I was giving him pre- warning that we were on that track so I could work with him to support him to get to where he needs to be to be fully functional.
In respect of the commentary around the actual APS job description, [the Applicant] did have a (indistinct) performance development agreement in place where it outlines all his roles and responsibilities at the APS6 level, bearing in mind that the KPI for the EA work is only one small component.
…
MR OFFER:They were the main component, weren't they, the three reports?---
MR COLEMAN:        No, they were the main component for him, for [the Applicant], because he was having issues completing that one component.
…
So whilst he - [the Applicant] - was only doing one small component, that being the EA component, that was to allow him to support him to get better at it, to know it back to front, to be able to deliver on that work. Because at the APS6 level you're also expected to manage a team and be able to quality assure people's work.
…
MR OFFER:Now the meeting of 30 November itself was quite distressing for [the Applicant], wasn't it, Mr Coleman?
MR COLEMAN:        Not to my knowledge.
MR OFFER:Did you speak to him in an aggressive manner during that meeting?
MR COLEMAN:        Most definitely not.
MR OFFER:So you disagree with what he says about it generally?
MR COLEMAN:        Strongly, strongly disagree.
MR OFFER:…[Y]ou say he had an unparalleled level of support and training which was not provided to other staff?
MR COLEMAN:        That's correct.
MR OFFER:Now there was no formal training of [the Applicant], was there?
MR COLEMAN:         There was - well I would say formal training because he was being given one on one training by the subject matter experts, obviously that person, Mr Moon, as also responsibility for part of the policies and procedures in consultation with myself.

So that, to me, is formal training, provided - well it could be seen as excessive because no one had ever gotten that one on one, that in depth consistent training at one point in time, being every day for two weeks, that was very intense, that never gets provided. And training went over for about three months, possibly longer, and that was twice a week, that was training that was never provided to any of the staff at the four level, five level, or the six level.
…
MR OFFER:But in the end, he says that the training didn't work, Mr Moon's training didn't work with [the Applicant]?---
MR COLEMAN:        Yes. And that's why we kept like evolving the training itself, asking [the Applicant] what he wanted. Whilst he said it wasn't working, it had worked through a large majority of the other staff and that's why there was that continual evolution support for [the Applicant] to see what type of training he needed and how that could be delivered…
Mr Moon
Mr Moon confirmed that from October 2015 to May 2020 he was an APS6 in the IBM team, that at various times in 2018 and 2019 he acted in the Assistant Director role for that team and that during this time he worked alongside the Applicant.[121]
[121]R4; Transcript, p 139 [30]-[40].
At hearing, Mr Moon gave evidence that he is experienced in training people for precisely the role the Applicant undertook.[122] Mr Moon added that whilst most staff were competent after three or four days of group training the Applicant was not, even after intensive input.[123]
[122]Transcript, p 143 [35].
[123]Transcript, p 143 [35]-[40].
Parties’ submissions on reasonable administrative action exclusion
At hearing, the Applicant made number of submissions in the context of his broader position that the reasonable administrative action exclusion ought not apply in the present matter, which the Tribunal understands are:[124]
So we've got very simple propositions, Member. The proposition is that the employer says, 'I've put you on an informal performance management plan'. Now, we say, well, that might be so, but … you didn't tell me. And if per chance the member believes that some little conversation that I was on it is sufficient, we say it was never documented…
…
…we say that that informal performance management process with respect to the training lacked - or lacked effectiveness, of course, because that's part of the evidence of [the Applicant]. It was inadequate, because it didn't achieve an outcome…
…
…he was not given the feedback from Mr Moon that he was providing to his manager, Mr Coleman. So to that extent we say that the informal performance management process, together with the complete lack of documentation of it, … wasn't put into operation reasonably, in a reasonable manner…
[124]Transcript, pp 157-168. The Applicant made a number of additional propositions in closing; however these are not addressed in this decision as they did not, in the Tribunal’s view, relate to the issues for review.
In turn, the Respondent has submitted that in the circumstances, the Applicant’s reasons for not completing the EA requirement do not provide justification for this failure and that rather, the Agency went to great lengths to assist and support the Applicant to meet the work standard.
The Respondent is of the view that the Applicant has misinterpreted the Agency’s efforts for historical reasons that have perhaps sensitised him and heightened his sense of caution, briefly[125]:
(a)Medical records suggesting the Applicant had previous issues at work in 2013.
(b)A mutual bullying complaint lodged in 2017 by the Applicant and Ms Manchester, his then supervisor[126].
[125]Transcript, p 18 [10]-[15].
[126]The Tribunal notes there is no evidence before it to indicate a formal finding that Ms Manchester had bullied the Applicant or any other staff member. An investigation found that the Applicant’s claims of bullying were unsubstantiated (R1, T30).
The Respondent contended that the administrative actions were reasonable, and taken in a reasonable manner, for at least the following reasons:[127]
(a)The requirement to complete three EAs per week was imposed on all employees, not just the Applicant and was subject to other work priorities, which could be explained as required. The Applicant had no other work priorities and was only required to complete his three EA cases per week. Other staff within the team were often able to meet the weekly EA case requirement.
(b)The Applicant was provided with significant training (including one-on-one training with Mr Moon for around 10 weeks), peer review feedback and courses on Microsoft Excel and report writing. The Applicant had no issues with Mr Moon’s training.[128]
(c)The Applicant was made aware of his role and what was expected of him during his discussions with Mr Coleman in May 2018[129] and November 2018.[130]
(d)Further supports were put in place following the Applicant’s Partially Effective rating during his mid cycle assessment in February 2019, including one-on-one training and discussions, and peer reviews.[131]
(e)Following the Applicant being rated Partially Effective at his end cycle assessment, a formal performance management process was scheduled. However, the Applicant declines meeting invitations regarding this and ceased working before it could be commenced.
[127]R8 p 4[17]
[128]R1, T16, p 138.
[129]R1, T18, p 89.
[130]R1, T16, p 108.
[131]R1, T16, pp 110-116; T5, pp 5-7 and T28, p 269.
In considering the reasonableness of the actions taken by the Agency in relation to the Applicant and the manner in which they were undertaken, the Tribunal notes several relevant aspects of the Applicant’s role and his workplace that inform the context in which the actions were taken.
The Agency had set requirements of its employees. One of these requirements was that the Applicant and his team members needed to complete three EA cases per week.

This requirement was flexible in the sense that if it were a week where an employee had other duties, there would be justification or accommodation for not completing three EA cases in that week. If an employee did have other duties in addition to their EA cases in a particular week, they were required to advise their supervisor.
The Applicant was unable to complete three EA cases each week. While the parties hold differing views as to why this was the case, it is not in dispute that:
(a)The Applicant was unable to meet this requirement.
(b)The Applicant’s being unable to meet this requirement was brought to his manager’s attention at the time.
(c)The Applicant was reminded on several occasions of this requirement.
(d)It was incumbent on the Agency to assist and train the Applicant to complete the EAs.
(e)The Applicant was provided with one-on-one training and attended several training courses.
(f)Despite these measures being taken, the Applicant was unable to achieve three EA cases per week and was rated in his 2019 performance reviews at Partially Effective.
(g)The Applicant ceased employment as performance management measures were being introduced.
The Applicant has expressed his reasons as to why he was unable to achieve the EA requirement and his belief that he was being singled out and targeted rather than assisted.
The Applicant has also given lengthy recollections and submissions regarding his claims of being bullied, workplace culture, toxicity in the workplace and the like. The Tribunal considers that while these claims lend themselves to providing context, care needs to be taken to ensure they remain (quite correctly, in the Tribunal’s view) separate from its consideration of the relevant administrative actions, whether those actions were reasonable and, if so, whether they were undertaken in a reasonable manner.
The Tribunal finds it unnecessary to make general findings on whether the Applicant was effective in completing his EA’s, whether he was otherwise an effective employee, or whether his attendance at various times was satisfactory. These matters are relevant only to the extent that they inform findings about whether Mr Coleman’s and Mr Black’s actions at times, as the Applicant’s managers, were reasonable or not, and whether those actions were taken in a reasonable manner.
Similarly, while the Tribunal accepts Dr Spear’s opinion regarding the Applicant’s personal vulnerabilities in the context of the Claimed Condition, for example:
(a)his pattern of repetitive negative thoughts,
(b)limited stress tolerance,
(c)medical comorbidities and
(d)his father’s death,
these matters do not relate to the exclusions provided in s 5A(2) of the SRC Act.
Addressing first the reasonableness of the administrative action of the Agency by appraising the Applicant’s underperformance in completing his EA work, the Tribunal notes in agreement the following comment made by the Respondent at the commencement of its closing submissions:[132]
Performance management, it's not punitive in nature. The idea is that performance, underperformance in particular, is managed. The way in which the applicant appears to have perceived this, as being a threat, has coloured his reaction to all sorts of actions and assistance in a way which is, frankly, tragic. We say that he has gone in, for whatever reason, rightly or wrongly, in April or May or whenever it was, of 2018 with a preconception of what he was walking into, and he's put a filter across things and actions that have led, inevitably, to where we are today.
…
The question is reasonableness. It's not whether it meets some standard of perfection. It's not whether it could have been done better, because things can always be done better with the benefit of hindsight. It's a question of what is reasonable in all the circumstances as known to the parties at the time.
[132]Transcript, p 168 [35]-[45], p 169 [5].
That the Applicant perceived and misinterpreted the performance management process (whether informal or formal) as threatening or demeaning because of the trust issues he had was also identified by Dr Spear. By the Applicant’s own evidence, his preconceived suspicions, and feelings upon his relocating into the IBM team in April 2018 influenced his mental approach to his work, and he felt he was being set up to fail.
This is the setting in which his initial and ongoing training took place. This is also the setting in which further additional training resources were provided once it became apparent the Applicant needed assistance in completing his three EA cases each week. Clearly, and without criticism to the Applicant, the training and courses did not achieve the desired effect.
The evidence regarding the steps taken by the Respondent to try to train the Applicant to achieve the EA requirement is that the Respondent essentially tried everything it could (one-on-training over a lengthy period, training courses and the like, leading to the implementation of his performance appraisal and performance management).

The Applicant was appraised. The Applicant understood his targets and what was required of him to achieve them. The Applicant was then provided with support over and above that of his colleagues.
The Applicant failed to improve and was rated Partially Effective on two occasions.

This led to a formal performance management process that barely commenced as the Applicant ceased work almost immediately following his second Partially Effective rating.
The Tribunal considers that the Respondent’s administrative action of implementing performance management was objectively positive, consultative, constructive, and designed to improve the Applicant’s performance. The Applicant’s preconceptions and suspicions have, unfortunately, led him to perceive these actions in a negative fashion. Therefore, the Tribunal finds that the administrative action undertaken in appraising the Applicant’s underperformance in completing his EA work was reasonable.
As to whether the reasonable administrative action of the Agency appraising the Applicant’s underperformance in completing his EA work was undertaken in a reasonable manner, the Tribunal accepts that given the Applicant’s preconceptions, he believes he was, for example, spoken to in a condescending tone at times or that the KPI was used to deliberately intimidate him. Similarly, it is those preconceptions that would cause the Applicant to take this view no matter how he was treated, or how any action at all was taken in relation to him.
However, given the lay evidence from the Respondent’s witnesses, in particular the Applicant’s supervisors, the Tribunal considers that the appraisal process was carried out in a reasonable manner that demonstrated support to the Applicant. This is not just due to the contemporaneous evidence regarding the interactions between the Applicant and Mr Black, Mr Coleman and Mr Moon at the time, but the underlying and ongoing support shown to the Applicant with the objective of improving his work performance, over a lengthy period.

The Tribunal therefore concludes that the reasonable administrative action of the Agency appraising the Applicant’s underperformance in completing his EA work was undertaken in a reasonable manner.
As it is only necessary for one of the significant contributing factors to be identified as reasonable administrative action, reasonably taken, for the exclusion in subsection 5A(1) to apply,[133] the Tribunal is not required to determine:
(a)whether the remaining administrative actions were reasonable and/or undertaken in a reasonable manner; or
(b)the date of onset of the Claimed Condition.
[133]See [94] above.
CONCLUSION
Broadly, the Applicant seeks orders which would have the effect of granting liability under section 14 of the SRC Act in relation to his Claimed Condition.
The Tribunal finds that while the Applicant’s Claimed Condition is a “disease” for the purposes of s 5B(1) of the SRC Act, the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment for the purpose of s 5A(1) of the SRC Act and is therefore excluded from the definition of “injury” under s 5A(1) of the SRC Act. Therefore, no liability arises.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

............[Sgd]............................................................
Associate
Dated: 26 October 2021

Dates of hearing: 7–8 December 2021

Applicant: In person: self-represented

Counsel for the Respondent: Tom Offer

Representative for the Respondent: Ms Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	7–8 December 2021
Applicant:	In person: self-represented
Counsel for the Respondent:	Tom Offer
Representative for the Respondent:	Ms Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers