Fairbrother and Reserve Bank of Australia (Compensation)

Fairbrother and Reserve Bank of Australia (Compensation) [2018] AATA 1339 (25 May 2018)
Division:GENERAL DIVISION
File Number(s): 2016/2912
Re:Rebecca Fairbrother
APPLICANT

AndReserve Bank of Australia
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:25 May 2018
Place:Sydney

The decision under review, being the decision of the Reserve Bank of Australia, made 20 April 2016, to reject Ms Fairbrother’s claim for compensation for a psychological injury made 4 December 2015, is affirmed
...............[sgd].........................................................
J W Constance
Deputy President
CATCHWORDS
COMPENSATION – psychological injury – bipolar depressive condition – whether Applicant suffered an ailment or aggravation of an ailment – whether the ailment or aggravation was contributed to, to a significant degree, by Applicant’s employment – whether the ailment or aggravation was suffered as a result of administrative action taken in respect of Applicant’s employment – whether administrative action reasonable – performance improvement process – whether administrative action taken in a reasonable manner – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14
CASES
Abrahams v Comcare (2006) 93 ALD 147.
Comcare v Martin [2016] HCA 43.
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463; [2012] FCAFC 21.
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.
REASONS FOR DECISION
Deputy President J W Constance
25 May 2018
INTRODUCTION

Ms Fairbrother commenced employment by the Reserve Bank of Australia in its graduate program in 2009. Two years later she was offered, and accepted, a permanent position as a Senior Analyst.
In December 2015 Ms Fairbrother lodged a claim for compensation in respect of a psychological injury which she claimed was suffered by her as a result of a meeting between herself and her supervisors on 17 November 2014. Her claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The Bank determined that it was not liable to pay compensation in respect of the claimed injury. Ms Fairbrother requested this be reconsidered. On 20 April 2016 the Bank decided to affirm its earlier determination.[1] In June 2016 Ms Fairbrother applied to the Tribunal to review the Bank’s decision.
[1] Exhibit R1 p.146.
For the reasons which follow the decision under review will be affirmed.
BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are made on the basis of the evidence of Ms Fairbrother.
On several instances in these reasons I prefer the evidence of other staff of the Bank to that of Ms Fairbrother. This should not be taken to indicate that I consider Ms Fairbrother to be a dishonest witness; I am satisfied that she gave her evidence to the best of her recollection. However on the basis of the medical evidence available to me I am satisfied that the bipolar condition and her personality traits affected her perception of how she was treated by her employer. I am satisfied that her beliefs as to the conduct of those involved in her supervision were not always accurate. On the other hand I am satisfied that the witnesses called by the Bank gave accurate evidence as to the circumstances relevant to the determination of this matter and, on occasions, had the benefit of notes made at the time of, or shortly after, the events in question.
Ms Fairbrother is 39 years of age.
Following her employment on a permanent basis, Ms Fairbrother took part in annual performance reviews as part of the Bank’s normal staff management program. At first these were satisfactory, but after 2012 her work performance deteriorated. In her assessment for the period September 2012-August 2013 her Manager stated that “during the review period Rebecca did not display in this position the level of competency expected of a senior analyst with her experience at level 3/4 across the key competencies”.[2]
[2] Exhibit R6.
In July 2014 Ms Fairbrother consulted her general practitioner, Dr Whitson, as she was feeling anxious and depressed. Dr Whitson made a preliminary diagnosis of Bipolar Affective Disorder (Type II) and referred Ms Fairbrother to a psychiatrist.
Ms Fairbrother advised the Bank of this preliminary diagnosis. She described the circumstances of doing so as follows:
In July 2014, I was fully transparent with the RBA, advising my managers of the preliminary diagnosis. Initially I spoke with Crystal Ossolinski, and then with Stephanie [Stephanie Bolt, Workflow Manager] who strongly advised that I inform the senior manager, David Emery. I therefore told David at that time and he said that human resources (HR) could get involved to put in place ‘reasonable adjustments’. However, I declined this because I did not want any further stress at that time. Getting my head around the diagnosis and managing the symptoms until I was able to see a psychiatrist was sufficiently stressful; I envisaged that involving HR would make the experience even more traumatic. This is because I had previously observed HR staff to be incompetent.[3]
[3] Exhibit A1 para.22.
Circumstances leading up to the performance review meeting of 17 November 2014
Mr Emery was a Senior Manager in the Payments System Efficiency section of the Bank in 2014 and 2015. During this time Ms Fairbrother reported to Ms Bolt who reported to Mr Emery.
Mr Emery provided two statements dated 28 January 2016[4] and 19 June 2017[5] respectively and gave evidence. I am satisfied that Mr Emery was an honest witness who gave his evidence to the best of his recollection.
[4] Exhibit R79.
[5] Exhibit R80.
In his statement of 28 January 2016 Mr Emery described the events leading up to the performance review meeting as follows:
In 2013-14, the annual performance review cycle was from 1 September 2013 to 31 August 2014, with appraisals normally completed by end November. In preliminary discussions with Stephanie about Rebecca’s performance she raised concerns with me about aspects of her performance. We rate five skill areas in the reviews. Of these, Rebecca’s work output and organisation skills, as well as her critical thinking skills were poor. She was good at proofreading but not at critical analysis or problem solving.
The level of Rebecca’s performance was such that we had discussions with human resources and Marija Dumovic from HR became involved.
I had become aware of Rebecca having flagged mental health issues in July 2014. She had spoken to Stephanie about this situation, and Stephanie had indicated that she should consider discussing this with me. I received an email from Rebecca relating to these issues on 22 July 2014. Thereafter there were discussion with Rebecca about this situation and RBA’s obligations. At this stage Rebecca did not have formal diagnosis but had done some internet research and provided Stephanie and I with material relating to bipolar disorder. She was advised that a formal diagnosis would be required for the RBA to make appropriate adjustment. Stephanie and I also indicated to Rebecca that the Employee Assistance Program (EAP) was available to her.
Ahead of a formal diagnosis, Stephanie and I sought to make some modifications to provide Rebecca with some work flexibility, including more flexible working hours, latitude to take time to see medical professionals including at short notice and a reduced workload, aiming to streamline her work so that she did not have too many tasks on at the same time. Rebecca also had regular meetings with Stephanie to check in on how she was going, and periodic meetings with Stephanie and me. Even with the initial modifications, our concerns regarding Rebecca’s performance persisted.[6]
I accept this evidence.
[6] Exhibit R79 paras.13-16.
The performance review meeting 17 November 2014
The performance review meeting held on 17 November 2014 was attended by Ms Fairbrother, Ms Bolt, Ms Ossolinski, Mr Emery and Ms Dumovic.[7] Ms Dumovic was a member of the Bank’s Human Resources department. Her role at the meeting was limited to observation of the process.[8]
[7] Exhibit R80.
[8] Exhibit R33.
Ms Dumovic provided an undated statement[9]. She did not give evidence and was not required to attend for cross-examination.
[9] Exhibits R33 & R36.
Mr Emery conducted the meeting. He described the meeting as follows:
During the performance review in November 2014 I was careful about the language I used and tried to stick to being specific about the performance issues, with reference to specific examples. It was, however, a difficult experience for everyone present, since we were raising issues of significant underperformance, and Rebecca clearly had a strong negative reaction to this feedback. Rebecca’s body language was negative. It was not a subjective matter of opinion, Rebecca’s performance was demonstrably well below the standard required of an analyst with some years of experience. She did not take this well despite the obvious need to address the issues.
During the meeting, Rebecca referred to her mental health issues, although she acknowledged that her performance had not been up to the standard required. In a written response to the performance review Rebecca agreed that the observations in the document were reflective of observed performance over the period, but claimed that some of the issues identified stemmed from a lack of clear expectations between managers, clerical staff and her. She also asserted that communication from management and clerical staff was often opaque, with unclear expectations around aspects of the role and task directions, and insufficient effective feedback, including praise. She also implied that her mental health issues had not been appropriately taken into account.
In consultation with Marija a performance improvement plan (PIP) was to be developed that would measure performance and identify targets. This was all conceived taking note of her preliminary diagnosis of mental health issues and potential work adjustments that would be required. That was not ignored or treated with a lack of sensitivity in this process.[10]
In his statement of 19 June 2017 Mr Emery said that:
During this meeting we discussed with Ms Fairbrother that if she had been diagnosed with mental health issues that we would have discussions with the Human Resources Department in relation to implementing reasonable adjustments to assist her.
After the above meeting I arranged for Mrs Bolt to contact Ms Marija Dumovic to discuss reasonable adjustment options for Ms Fairbrother and for Ms Dumovic to send Ms Fairbrother an email advising her of the Employee Assistance Program (EAP) and her options for the use of this facility.[11]
[10] Exhibit R79 paras.17-19.
[11] Exhibit R80 p.1.
The evidence of Mr Emery was supported by the undated statement of Ms Dumovic.[12] She said that there was nothing inappropriate in the manner in which the meeting was conducted. She described Ms Fairbrother being “taken aback and finding the situation unpleasant but she was not distressed or crying or anything of that sort”.
[12] Exhibit R33.
I accept the evidence of Mr Emery and the statement of Ms Dumovic.
Ms Fairbrother says that when she telephoned Ms Dumovic prior to the meeting to enquire as to its purpose she was told that it was to discuss reasonable adjustments to her work environment and that she should rest assured that the process was to support her.[13] Nevertheless Ms Fairbrother formed the view that those attending the meeting were mean, aggressive and dismissive of her requests. She says that she “just shut down psychologically”.
[13] Exhibit A2 para.6.
Meeting 18 November 2014
A further meeting between Ms Fairbrother, Mr Emery, Ms Bolt and Ms Dumovic was held on 18 November 2014. Mr Emery described this meeting as follows:
There was a further meeting held with Ms Fairbrother on 18 November 2014. This meeting was in relation to the potential management of performance issues. The meeting also included some discussion regarding implementing reasonable adjustments.
Mrs Bolt took some notes during the meeting. The notes indicate that it was a difficult meeting because a discussion about needing to improve performance was not something that Ms Fairbrother wanted to hear. However, we emphasise that this would be done consistent with medical professional advice and that the Bank would implement any reasonable adjustments recommended.
In relation to the adjustments, Ms Fairbrother had identified some adjustments that she wanted implemented. Ms Dumovic noted that the Bank needed to go through a process which included getting professional advice before adjustments could be put in place. Ms Dumovic stressed that the Bank (and Ms Fairbrother) would first need to determine what the needs/issues to be addressed were and then work out how best to make adjustments to reach those outcomes; that might mean implementing Ms Fairbrother’s suggestions, but it might also involve adjustments recommended by professionals that none of us had thought of. Mrs Bolt’s notes indicate that Ms Fairbrother seemed to interpret the fact that Ms Dumovic didn’t say yes immediately to her suggestions as an outright rejection of those suggestions, whereas it was clear that nothing was being ruled out and it was a matter of obtaining appropriate professional advice. An excerpt from Ms Bolt’s notes is attached as Annexure A.
My recollection of the meeting with Ms Fairbrother on 18 November 2014 is consistent with Mrs Bolt’s in that it was a difficult meeting. Ms Fairbrother did advise that she was capable of working at fulfilling the role of a senior analyst, however I still had to address that there were long standing performance concerns and in the light of the mental health issues that had been raised that we were willing to make adjustments. I encouraged Ms Fairbrother to use the resources available to her. I had to explain to Ms Fairbrother that we also required a medical diagnosis, so that we could make adjustments in accordance with her medical advice. Ms Fairbrother was very uncomfortable during this meeting, however, there were concerns that needed to be dealt with.
…
Towards the end of this meeting with Ms Fairbrother I noticed that she stopped responding in detail to our questions and comments and stop engaging in any eye contact. I noticed that she was just staring down at the papers she had in front of her and writing notes. In doing so she was pressing her pen down very heavily. Accordingly, we terminated the meeting to ensure that what we interpreted as emotional distress was limited.[14]
[14] Exhibit R80 paras.9-12 & 14.
Annexure A to Mr Emery’s statement reads as follows:
Annexure A: excerpt from Mrs Bolt’s notes
18/11/14 Meeting with HR, didn’t go well. Bec outlined the adjustments she wants - work from home; assigning a senior analyst to act as a quasi-manager; more effective positive feedback. Most of the discussion was around the first two, Bec seemed to interpret the fact that Marija didn’t say yes immediately as an outright rejection, whereas I would say no one ruled out anything but it was noted that the Bank need to go through a process which included getting the proper professional advice before adjustments should be put in place. Marija stressed that the Bank (and Bec) would first need to determine what the needs/issues to be addressed were and then work out how best to make adjustments to reach those outcomes, that may mean implementing Bec’s suggestions, but it might mean introducing suggestions from the professionals that none of us had thought of. This was the first conversation where Bec has acknowledged the point about protocols and values and the first time where she acknowledged that there had been some lack of judgement in some of her actions.
I accept the evidence of Mr Emery set out in the preceding two paragraphs.
By the time this meeting took place the Bank had already instituted some adjustments to the work expected of Ms Fairbrother. Compared to other Senior Analysts her workload had been reduced and flexible leave arrangements had been approved. When Ms Fairbrother informed Mr Emery of her health issues in July 2014 he suggested to her that the support of the Human Resources department be engaged but Ms Fairbrother indicated that she did not wish this to happen.[15]
Report of Dr Cannon 24 November 2014[16]
[15] Exhibit R80 para.15.
[16] Exhibit A6 document 3.
Following the meetings in November 2014 the Bank requested Dr Cannon provide a report on Ms Fairbrother's condition.
In a short report to the Human Resources Department of the Bank and dated 24 November 2014, Dr Cannon advised that she had been treating Ms Fairbrother since October 2014 and was currently treating her for bipolar depression. Dr Cannon further advised that:
Rebecca’s Bipolar Affective Disorder (and possible second condition) have a significant impact on her ability to do her work, and may account for her weak performance.
To answer your questions definitively I will need to complete my assessment and see how she further response to treatment. My next appointment with Rebecca is this coming Tuesday the 16th of December. During this appointment I hope to complete my assessment and thus have a better idea of prognosis etc.
Report of Dr Cannon received 6 January 2015[17]
[17] Exhibit R32.
On 6 January 2015 the Bank received a detailed report from Dr Cannon.
Dr Cannon reported that Ms Fairbrother’s medical conditions included Attention Deficit Hyperactivity Disorder - mixed type and Bipolar Affective Disorder (type 2), the latter being presumptive, based on the history given by Ms Fairbrother.
Under the heading “Past psychiatric history” Dr Cannon reported that Ms Fairbrother had suffered “episodes of hypomania and bipolar depression since adolescence which is the usual time of onset”.
In the “Summary and Recommendations” section of the report Dr Cannon stated that the two medical conditions “impact on her mood, behaviour and functioning. Both of these conditions are long-standing and she has not received adequate and appropriate treatment.… These medical conditions affect a person’s functioning over many domains including occupational, social and interpersonal”.
Dr Cannon recommended workplace modifications in light of Ms Fairbrother’s medical conditions to include:
1) A quiet workspace that minimises her exposure to distractions such as noise and movement.
2) A single line of contact for non-urgent communication such as phone, email etc. to reduce the number of message services that she is required to check and respond to.
3) Clear communications with direct instruction and confirmation that she is clear about what is expected of her.
4) A single line manager or supervisor who oversees her work and can provide constructive feedback.
5) Rebecca should not be subjected to excessive workloads that cause significant or persistent stress.
6) Rebecca should not be expected to work great than 8 (eight) hours per day, 5 (five) days per week.
7) Rebecca should not be expected to work later than 8pm or earlier than 8am as maintenance of a good sleep pattern is important at preventing relapse. In addition, a regular routine will help minimise the effect of her ADHD symptoms on her work timetable.
8) Rebecca should have access to annual leave of at least 4 weeks per year.
9) Rebecca should have access to sick leave for periods of illness during the year.
10) Rebecca should be allowed to take medication during the day at the times that it is prescribed as necessary.
11) Rebecca would benefit from the ability to work from home on occasion if practical and possible.
12) Rebecca would require greater time allowance for tasks that require sustained attention to detail such as checking statistics.[18]
[18] Exhibit R82
The intervention of Mr Harries, Deputy Head – Human Resources
During 2014 and 2015 Mr Harries was the Deputy Head of the Human Resources Department of the Bank. In that role both Ms Dumovic and Ms Saboisky reported to him.

Mr Harries provided two statements dated 3 February 2016[19] and 29 May 2017[20] respectively and gave evidence. I am satisfied that Mr Harries was an honest witness who gave his evidence to the best of his recollection. I accept his evidence.
[19] Exhibit R22.
[20] Exhibit R23.
In January 2015 Mr Harries was advised by Ms Saboisky that Ms Fairbrother had told her that she did not consider the Bank had been helpful in relation to a work adjustments process and that Ms Fairbrother considered that Ms Dumovic had not been supportive of her. As a result of being advised of this Mr Harries met with Ms Fairbrother in mid-January 2015.
In his statement of 3 February 2016 Mr Harries described his dealings with Ms Fairbrother as follows:
The nature of Rebecca’s dissatisfaction with the process and with Marija [Ms Dumovic] was based on her considering that the work adjustments did not need discussion but rather should have just been automatically implemented. I explained to her the need for discussion about the operational impacts of the proposed adjustments and that Marija was playing an appropriate role in working with Rebecca’s line managers to ensure a mutually agreeable solution was put in place. Rebecca had a defensive mindset and considered that she should be able to deal with Myfwny [Ms Saboisky] rather than Marija if she so chose. Her tone was abrupt and demanding.
I was aware that a meeting was set up by Marija with Rebecca to discuss the proposed work adjustments and plan for implementation. The meeting attendees included Rebecca, Marija, Karen Thomas (our Injury Management Consultant) and Rebecca’s direct supervisor (Clare Noone) and Section manager (David Emery). This meeting did not involve the performance management issues and was solely focused on discussing the work adjustments as suggested by Rebecca’s psychiatrist. I did not attend the meeting as there was appropriate HR representation through Marija and Karen.
After that meeting Karen Thomas came to me and gave me unsolicited feedback that Rebecca had been very difficult in the meeting and aggressive in her attitude towards Marija. Karen said she wanted to let me know how well Marija had handled the situation and emphasized that Marija had been very calm and professional in all her dealings with Rebecca. I subsequently asked Marija about the meeting and she confirmed Rebecca had been very difficult.
A day or two later Rebecca again approached Myfwny, despite my request to Rebecca to contact me and not Myfwny if she had any concerns about HR’s involvement, to complain that she did not like how Marija was handling the situation.
I spoke with David Emery and he confirmed that Marija had behaved entirely appropriately in the meeting despite Rebecca being aggressive and refusing to properly engage. I note at this point that Marija Dumovic is quietly spoken, gentle and empathetic human resources professional with a psychology background.
Myfwny forwarded to me an email exchange from Rebecca to her claiming that the meeting to discuss her work adjustments had been traumatic and that she was not able to attend any follow up meeting.
At this point I became directly involved in the matter as I wanted to address Rebecca’s concerns and help resolve her issues. A number of emails were exchanged with Rebecca asking her to meet with me to discuss those concerns. At her request I provided a summary of the matters to be discussed and indicated she could bring a support person is she wished.
We met on 4 February 2015, Rebecca was ok at the meeting and she agreed to participate in a further meeting with David Emery and Clare Noone. She said that she did not want Marija Dumovic to attend that meeting as she found her aggressive and unsupportive. I advised Rebecca that my enquiries into Marija’s conduct did not support those claims, but in the interests of resolving the reasonable work adjustments, I would attend the meeting as the HR representative in place of Marija.
A meeting to finalise the adjustment was held on 9 February 2015. The adjustments, which should always have been straight forward, involved areas of flexibility in her working arrangements to assist with her mental health in accordance with her psychiatrist’s recommendations.[21]
[21] Exhibit R22 paras.10-18.
Introduction of the Performance Improvement Plan
On 18 February 2015 a meeting took place between Ms Fairbrother and her support person (Ms Davis) and Mr Emery, Ms Noone (Ms Fairbrother’s Manager) and Ms Saboisky (Human Resources). The purpose of this meeting was to discuss the introduction of a Performance Improvement Plan in respect of Ms Fairbrother.
Prior to the meeting Ms Fairbrother was provided with a draft plan, a referral to the Employee Assistance Program and a copy of her position description and goals.[22]
[22] Exhibit R46.
On the basis of an email prepared by Ms Saboisky on the day following the meeting, I am satisfied that the following is an accurate summary of what was discussed:
[David Emery] opened the meeting stating that we would discuss in order the EAP referral and then go through the PIP to ensure that all parties had an understanding of expectations and requirements. [David Emery] and [Myfwny Saboisky] confirmed that we hoped it would be a productive discussion and we are happy to answer any questions [Rebecca Fairbrother] has about the process or documents.
[David Emery] talked [Rebecca Fairbrother] through the referral to the EAP. Confirming that this was separate to any other interactions she may be having with them. [David Emery] confirmed the intention of the EAP referral was to allow [Rebecca Fairbrother] to work through specific performance areas, especially with regard to taking feedback and prioritising. [David Emery] advised that we will receive a report after the initial meeting and after the last meeting and that the time frame (six sessions) is what had been recommended by the EAP provider, having explained to them the circumstances. [Rebecca Fairbrother] asked if we receive interim reports on progress, I confirmed we would not. [Rebecca Fairbrother] asked if there was a possibility for more sessions. [David Emery] reiterated that the six sessions was the initial recommendation and we can re-assess at the end of these to see if more are appropriate.
[Rebecca Fairbrother] asked if she can choose the consultant she would work with at the EAP. [Myfwny Saboisky] replied that I am unsure, but she can provide us with a name and we can see if the EAP would consider that. [Myfwny Saboisky] again reiterated though that is separate to her other sessions with them.
[David Emery] then talked through the PIP. He stated from the outset that it is a process and we hope for sustained improvement. He stated too that failure to improve to the standard required, or to have improvements sustained that further management actions may be necessary. [Rebecca Fairbrother] said that she hopes it wouldn’t come to that, [David Emery], [Myfwny Saboisky] and [Claire Noone] all indicated that they agreed.
After talking through each development area in the PIP, [Rebecca Fairbrother] asked what happened at the end of the three month period specified, as her treating doctor had previously advised she may need six months for a full recovery. [David Emery] stated that we would need to see how things are working for all parties, especially with regard to the recent adjustments that have been made for [Rebecca Fairbrother]. [Myfwny Saboisky] advised that we will assess progress through the period (through her regular meeting with [Claire Noone]). At the end of the three months, we will have to consider in the round what options we have and we would not want to pre-empt them now. [David Emery] further confirmed that the three month period would be extended to allow for the three weeks that [Rebecca Fairbrother] is on holiday in April.
[David Emery] closed the meeting, after confirming with [Claire Noone], [Myfwny Saboisky] and [Rebecca Fairbrother] that no one had any further comments or questions.[23]
[23] Exhibit R46.
Ms Fairbrother said that she was “stunned” when she learned that a Performance Improvement Plan containing a threat of termination was to be put in place.[24]
[24] Exhibit A2 para.18.
When he learned that Ms Fairbrother had concerns with the wording of the Performance Improvement Plan Mr Harries again met with her. This meeting took place on 2 March 2015.
I accept the following evidence given by Mr Harries as to the conduct of that meeting:
In the meeting of 2 March with Rebecca, and after I consulted with Gerald Richardson, I set out the meaning and consequences of the PIP. In particular I made it clear to Rebecca that a possible consequence of failing to meet the required performance standards may result in disciplinary action up to and including termination. I was being open about the implications, as was entirely appropriate and it was certainly not a willful act to intimidate her. She has a right to be aware of the consequences of the process. As an employer the Bank also has a duty to ensure that the possible consequences are communicated to the employee.
At the conclusion of that meeting Rebecca agreed to close out the 2014 review and sign the Performance Improvement Plan to enable its commencement. This was confirmed by me in an email to Rebecca on 3 March.[25]
[25] Exhibit R22 paras.22-23.
The Performance Improvement Plan was signed by Ms Fairbrother and on behalf of the Bank on 3 March 2015.[26] It included all of the recommendations made by Dr Cannon in her letter received on 6 January 2015.
[26] Exhibit A1 para.35.
Management of the Performance Improvement Plan
Following the commencement of the Plan there were a number of email exchanges between Ms Fairbrother and Ms Noone. Ms Noone provided feedback to Ms Fairbrother on her work performance and Ms Fairbrother provided further information as to the state of her health.
On 1 April 2015 Ms Noone met with Ms Fairbrother to assess her progress against the performance targets in the plan. In the opinion of Ms Noone, Ms Fairbrother had made a substantial effort to improve her performance but she continued to perform significantly below the required standard in some areas.[27]
[27] Exhibit R50.
A review meeting was planned for 15 May 2015. It did not proceed and was rescheduled for 15 June 2015 to allow Ms Fairbrother extra time to prepare for the meeting.[28]
[28] Exhibit A9.
On 9 June 2015 Dr Cannon wrote to the Bank.[29] In part she stated:
I am aware that Rebecca has been undergoing a Performance Improvement Program at work and I would like to bring to your attention that certain aspects of this process have caused significant stress and anxiety to Rebecca, which may have undermined the wellness and recovery process. More specifically, the increased surveillance of her work has caused her stress and anxiety. In addition, Rebecca feels that her interactions with managers are conducted in a formal manner, and that she doesn’t get the opportunity to discuss difficulties/challenges with managers in a less formal manner not involving evaluation. In addition, I understand that Rebecca has been given the opportunity to work from home on occasion. Rebecca reported that this opportunity came with some requirements including the requirement for her to send emails to managers letting them know when she was logging on and off. Also, Rebecca was required to write a proposal of the work she would do at home for it to be considered and approved. These additional requirements placed on Rebecca to enable her to work from home have led to some significant anxiety and stress.
In light of this, it is unclear that a performance management approach has been the most appropriate course. Instead Rebecca would find it valuable to have access to a reasonable period of rehabilitation, where she has an opportunity to improve her health without exposure to performance pressures.
[29] Exhibit A6 document 5.
The final Performance Improvement Plan meeting was held on 15 June 2015. Mr Emery gave the following evidence as to the conduct of that meeting:
Bruce Harries was also present, as was a representative from the Finance Sector Union and Meela Davis as a support person for Rebecca. This meeting was tense and Rebecca was upset by the performance outcome. She did acknowledge that her performance was not up to standard but did again reference her condition. Rebecca presented an extensive written response. This was another difficult conversation to have and Rebecca alleged that the PIP process was causing her anxiety and that she felt under pressure in relation to the process.
Rebecca also claimed that she had received no support. That was just simply untrue as Clare had provided her extensive and ongoing support as I have reference above. Meela Davis was the support person in the meeting.[30]
I accept this evidence.
[30] Exhibit R79 paras.26-27.
Ms Fairbrother described this meeting as follows:
At the meeting on 15 June 2015, which David and Bruce attended, as well as Meela and Jason Schultz (of the Financial Services Union) who were both in support of me, I explained how I considered the process to be unfair and inappropriate. I explained that their treatment of me was exacerbating my condition. My key point was “I am sick, I am not incompetent”. This was consistent with Dr Cannon’s letter of 9 June 2015.
I explained that the nature of the entire process did not provide me with support, despite being told otherwise. While Clare met with me often, I felt anxious about having these meetings. On one occasion when I asked Clare for positive feedback when I did something well, she said that “it’s not my job to give you praise”, and suggested that I self-evaluate instead.[31]
[31] Exhibit A1 paras.41-42.
Following the meeting on 15 June 2015 the Bank wrote to Ms Fairbrother on 17 June 2015.[32] In part the Bank stated:
[32] Exhibits R56 & R58.
Further to our meeting on 15 June, I note your responses to the Performance Improvement Plan (PIP) assessments and the initial conclusions.
…
Throughout the process we have taken into account the opinions from your treating psychiatrist (Dr Cannon) to implement reasonable work adjustments, The duration of the PIP was also established on the advice of Dr Cannon, who said that within 3 months there would be a “considerable improvement” in your symptoms and by 6 months you “should be able to fulfil the requirements of your job”. The letter from Dr Cannon dated 9 June 2015 verifies her earlier prognosis when it states that “your symptoms have improved considerably and Rebecca reports an associated improvement in both her work and personal functioning.”
In addition to the work adjustments, the Bank has also provided you with extended access to its Employee Assistance Program (EAP) to enable you to maintain contact with a psychologist for additional support and advice throughout the process. Changes were made (at your request) to your supervising manager and to the Human Resources representative involved in the process. Your manager has provided extensive support and coaching for the duration of the PIP.
Despite this, and not withstanding your doctors’ views on the improvement in your symptoms over the past 6 months, there has been no sign of material improvement in your job performance in the corresponding time frame. There are also contradictions in your assertion that you are “more focused and productive” than when you were rated “fully effective” in 2012, but at the same time the PIP and reasonable adjustments process has resulted in you being “unable to regain full performance capacity”.
Next Steps
To resolve the apparent contradictions, better understand the impact of the medical issues on your performance and the impact of the PIP on you, the Bank will require additional medical information. That information will also enable the Bank to make a fully informed decision about your ongoing employment arrangements.
Accordingly, we will contact Dr Cannon and seek clarification from her on these matters. We will also require you to be examined by Dr Michael Robertson, the Bank’s appointed Psychiatric specialist.
…
While the additional medical assessment process is underway, the current Performance Improvement Plan will be extended to allow time for the information to be gathered and assessed. This extension also provides you additional time to continue to improve your symptoms and further opportunity to demonstrate whether you can meet the required performance standards and at a consistent and sustained level. David Emery will provide you with a revised PIP to confirm the tasks and timeframes in this period. The PIP will be extended until we receive the reports from Dr Cannon and Dr Robertson. Based on the current information we estimate that this will be on or before 14 August 2015.
In the interim, your health remains a primary consideration and we expect you to continue to take appropriate medical advice and support in managing your condition. The Bank’s view is that it is accommodating your needs, and we are encouraged by the statements by you and your doctor that your symptoms are improving and you are feeling focused and productive. I note your request for further EAP access, and advise that the Bank will provide you with an additional four EAP consultations during the PIP extension period.
If the situation changes and you feel that continuing to attend work and perform the tasks assigned to you is adversely affecting your health you should take medical advice and inform your manager and Karen Thomas if you need to take time off for medical appointments or ill health.
In this letter the Bank advised Ms Fairbrother of an appointment for her examination by Associate Professor Robertson, Psychiatrist, on 31 July 2015.
Following his examination of Ms Fairbrother on 31 July 2015 Associate Professor Robertson reported to the Bank on 3 August 2015.[33] He reported, in part:
I also note that Ms Fairbrother increasingly demonises the employer and seems to evolve a somewhat hostile dependent relationship with the organisation.
…
The primary attribution of Ms Fairbrother’s recent deterioration in mental state has been the challenges in managing the performance improvement process.
…
I am not entirely convinced that Ms Fairbrother’s mood disorder was sufficiently stable when the PIP process was implemented. I believe a reasonable “middle ground” on this situation was that Ms Fairbrother’s performance was still sub-optimal at the time the process was implemented and her continued difficulty abiding with the various prescriptions of the PIB created a somewhat circular process of poor performance leading to increased disturbance of mood and anxiety.
[33] Exhibit A14.
Following receipt of Associate Professor Robertson’s report, the Bank changed its approach to the management of Ms Fairbrother. On 17 August 2015 Ms Thomas sent an email to Dr Cannon as follows:
Please find attached the recent report obtained by the Bank from A/Prof Michael Robertson.
In response to the report, the Bank is proposing to implement a three month work-based rehabilitation plan for Rebecca. The key features proposed are:
1. Suspension of the performance improvement process.
2. Reduced working hours to 21 per week for three months. (Rebecca has personal leave available to her to cover the remaining two days per week.)
3. Provision of suitable duties with an alternate reporting line to current. The duties proposed are yet to be finalised but may involve specialised tasks of an administrative nature that Rebecca would likely find interesting but not demanding. The view is that Rebecca would have few if any performance indicators to meet in this period. I am likely to have confirmation on the nature of these duties within a few days.
4. Review at the end of the three month period with A/Prof Michael Robertson, who advised that he would seek to discuss Rebecca with you.
We have not as yet communicated the proposal to Rebecca as we would like to ask you to review the attached report; and if in agreement with the plan outlined above, assist us by communicating this to Rebecca at her next appointment. If the next appointment is not in the near future, we would be happy to pay for Rebecca to attend for the purposes of this discussion. Alternatively if you wished me to attend a case conference with yourself and Rebecca, I would be happy to do this also.
I’ll await your advice.[34]
[34] Exhibit R62.

Dr Cannon discussed the Bank’s proposal with Ms Fairbrother on 26 August 2015. By email of 27 August 2015 Dr Cannon advised Ms Thomas that “The report and recommendations were discussed with Rebecca and she was broadly happy with the plan. There were a couple of details regarding the details of her new role that she will discuss with you”.[35]
[35] Exhibit R64.
On 1 September 2015 Ms Fairbrother advised the Bank that she was feeling better and that she would be at work the next day. She also advised that she was looking forward to the new project and that “it sounds like it will really suit me”.[36]
[36] Exhibit R64.
A meeting was held on 2 September 2015 attended by Ms Fairbrother, a union representative, Mr Harries, and Mr Richards, the manager of the Department in which Ms Fairbrother worked. The Bank proposed that this meeting was for the purpose of determining suitable duties for Ms Fairbrother; Ms Fairbrother raised issues relating to her past work reviews. During the meeting she formed the view that Mr Harries was being “mean” to her.[37]
[37] Exhibit A2 para.46.
A suitable duties plan was signed by Ms Fairbrother and on behalf of the Bank on 7 September 2015. It was based on Associate Professor Robertson’s advice and included modified hours and duties for a period of three months. It provided for Ms Fairbrother to be reviewed by Associate Professor Robertson in early December 2015 and for the possibility of the plan being extended for a further three months. Any increase in the hours to be worked by Ms Fairbrother was to be based on advice from Dr Cannon.[38]
[38] Exhibit R66.
On 11 September 2015 Ms Fairbrother lodged with the Bank an Incident & Investigation Report form.[39] She reported an injury being “an exacerbation of illness” affecting the brain and “physical manifestations of anxiety”. The hard copy of this report in evidence indicates that the electronic copy provided further information as to the physical manifestations of the injury alleged. The incident was stated to have occurred at 14:30 on 18 November 2014 in the Human Resources meeting room, Mezzanine. The report also recorded that the incident was reported to Dr Phil Lowe on 11 September 2015.
[39] Exhibit R68.
On the same day as the Incident Report was lodged Ms Fairbrother sent an email to Dr Lowe, Deputy Governor of the Bank, setting out details of her alleged mistreatment by the Bank and claiming financial compensation. She stated also that she intended to lodge a claim for compensation under the Safety, Rehabilitation and Compensation Act.[40]
[40] Exhibit R87.
Ms Fairbrother lodged the claim, the subject of this application before the Tribunal, on 3 December 2015.[41] At that time the suitable duties plan was still in effect and the Performance Improvement Plan remained suspended.[42]
[41] Exhibit R77.
[42] Exhibit A1 para.46.
The claimed injury was described as:
‘Problem relating to employment’ (DSM-5, code V62.209) that caused significant stress and anxiety, destabilised my illness (ADHD and Bipolar 2), and contributed to achieving delay in remission of symptoms.
The injury was said to have happened on 18 November 2014 at 2.30pm and to have affected the “Brain (also physical manifestations of anxiety and depression, including poor sleep, panic attacks, muscle tension)”.
THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
(1) Subject to this Part, [the Bank] 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.
“Injury” is defined in subsection 5A(1) to mean:
(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.
Subsection 5A(2) provides:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B:
(1)     In this Act:
“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 employee’s employment by the Commonwealth or a licensee.
(2)     In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)     In this Act:
“significant” degree means a degree that is substantially more than material.
“Ailment” is also defined:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).[43]
[43] Subsection 4(1).
THE ISSUES
The circumstances and timing of the injury for which compensation is claimed is different to that set out in the claim form submitted by Ms Fairbrother in December 2015. The initial claim was for a mental injury suffered at the time of the meeting held on 18 November 2014.[44] At the conclusion of the evidence at the hearing, Counsel for Ms Fairbrother submitted that the injury for which she was entitled to compensation was a “depressive episode commencing approximately 23 June 2015”.[45] It was put that the depressive episode was caused by the Bank’s actions in commencing and maintaining the Performance Improvement Plan.
[44] Exhibit R77.
[45] Transcript 01/12/17 p.2.
Following the principles set out by the Federal Court in Abrahams v Comcare[46] I am satisfied that the Tribunal has jurisdiction to determine the amended claim. The Bank did not contend otherwise.
[46] (2006) 93 ALD 147.
The following issues remain for determination.
(1)Did Ms Fairbrother suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If so, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the Bank?
(3)If so, was the ailment or the aggravation suffered “as a result…of administrative action…taken…in respect of [Ms Fairbrother’s] employment”?
(4)If so, was the administrative action “reasonable”?
(5)If so, was the action “taken in a reasonable manner”?
REASONING
Issue 1: Did Ms Fairbrother suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
It is not in dispute that Ms Fairbrother suffers from Bipolar II Disorder and that she suffered from this condition prior to her employment by the Bank. It is also not in dispute that such a condition is an “ailment” as defined in subsection 4(1) of the Act. I am satisfied that this is correct.
The Bank does not agree that Ms Fairbrother suffered an aggravation of the Bipolar II Disorder on or about 23 June 2015.
Evidence of Dr Cannon, Psychiatrist
Dr Cannon began treating Ms Fairbrother in October 2014. She provided several reports[47] and gave evidence.
[47] Exhibit A6.
Dr Cannon said that by mid-February 2015 Ms Fairbrother had responded well to the prescribed medication and was not exhibiting any stress or significant anxiety in her workplace or life outside the workplace. However she diagnosed Ms Fairbrother as suffering “increasing and persisting severe stress and anxiety” as a result of issues in her workplace during March 2015 and the months following.[48]
[48] Transcript 30/11/2017.
When Ms Fairbrother consulted Dr Cannon on 23 June 2015 Ms Fairbrother’s depression was more pervasive and at that time she met the criteria for bipolar depression. Dr Cannon’s clinical notes of the consultation refer to several events in the workplace which were causing Ms Fairbrother distress. Dr Cannon prescribed an increased dose of anti-depressant medication. In October 2015 Dr Cannon prescribed a different drug which decreased the symptoms of depression.
By the end of February 2016 the symptoms of the depressive episode had fully resolved. Both prior to and after this episode Ms Fairbrother’s condition had been relatively stable. From February 2016 until Dr Cannon gave evidence on 30 November 2017 Ms Fairbrother had not suffered a further episode of depression.[49]
[49] Transcript 30/11/2017.
Evidence of Associate Professor Robertson, Consultant Psychiatrist
Ms Fairbrother was examined by Associate Professor Robertson on 31 July 2015 at the request of the Bank. He was specifically asked to report upon the deterioration in Ms Fairbrother’s mental state.
In his report of 3 August 2015 Associate Professor Robertson accepted that there had been a recent deterioration in Ms Fairbrother’s mental state and that she had suffered “increased disturbance of mood and anxiety”.[50]
[50] Exhibit A14 p.8.
Evidence of Dr McClure, Consultant Psychiatrist
Dr McClure assessed Ms Fairbrother in August 2016 at the request of her Solicitors. He provided two reports dated 30 August 2016[51] and gave evidence.
[51] Exhibits A7 & A8.
Dr McClure reported, in part:
In my opinion, the pattern of recurrent episodes of hypomania and depression is fairly clear, at least since October 2013. … Ms Fairbrother’s recent depressive episode had largely resolved by late 2015, or early 2016, with ongoing treatment from her psychiatrist and some environmental manipulation (altered workplace conditions).[52]
[52] Exhibit A7 pp.8-9.
Evidence of Dr Champion, Psychiatrist
Dr Champion examined Ms Fairbrother on 15 December 2017 at the request of the Bank’s Solicitors. He provided reports dated 22 December 2016 and 16 August 2017[53] and gave evidence.
[53] Exhibits R84 & R85.
Dr Champion agreed that Ms Fairbrother had suffered an onset of a depressive episode between 2014 and 2016[54] but he did not agree that the depression suffered by Ms Fairbrother in July 2015 was a different episode to that suffered previously.
[54] Transcript 30/11/2017.
Discussion
On the basis of the evidence of Dr Cannon I am satisfied on the balance of probabilities that between approximately 23 June 2015 and the end of February 2016, Ms Fairbrother suffered an episode of bipolar depression which was an aggravation of her Bipolar II condition. Further I find that after the end of February 2016 Ms Fairbrother’s bipolar condition had again stabilised and she ceased to suffer from the depressive episode. I have taken into account that Dr Cannon was Ms Fairbrother’s treating practitioner during 2015 and 2016 and was consulted by her on several occasions during that period.
The opinion of Dr Cannon is supported by Associate Professor Robertson who examined Ms Fairbrother in July 2015 for the purpose of advising whether the Performance Improvement Plan should continue at that time. This was during the period of the episode the subject of this claim. Dr McClure also agreed that Ms Fairbrother’s “recent” depressive episode had largely resolved by late 2015 or early 2016.
Although Dr Champion did not agree that Ms Fairbrother had suffered a discrete episode of depression in June 2015 he had not been given the history that Ms Fairbrother’s condition had stabilised between October 2014 and February 2015.
Issue 2: Was the aggravation of Ms Fairbrother’s Bipolar II condition “contributed to, to a significant degree” by Ms Fairbrother’s employment by the Bank?
Both Dr Cannon and Associate Professor Robertson are of the opinion that the depressive episode suffered by Ms Fairbrother in about June 2015 was contributed to, to a significant degree, by her employment by the Bank. As noted earlier in these reasons Ms Fairbrother’s claim is for this particular episode.[55] I accept their evidence as they both had the advantage of assessing her condition at the time and as Dr Cannon was her treating practitioner.
[55] Transcript 01/12/2017 pp.2&4.
Evidence of Dr Cannon
On 9 June 2015, shortly before she diagnosed Ms Fairbrother as suffering depression, Dr Cannon reported, in part:
I am aware that Rebecca has been undergoing a Performance Improvement Program at work and I would like to bring to your attention that certain aspects of this process have caused significant stress and anxiety to Rebecca, which may have undermined the wellness and recovery process.[56]
[56] Exhibit A6.
In her report of 14 July 2015 (written after the diagnosis) Dr Cannon said, in part:
Problem related to employment
This is not a medical condition per se. However it has been the focus of clinical care and is mentioned in classification systems of mental disorders including the Diagnostic and Statistical Manual – version 5 (DSM-5) so I think it is appropriate to discuss it here. The DSM-5 code for this is V62.29 “Other problem related to employment.”
This condition is relevant when workplace-specific situations cause enough stress for an individual to be the focus of clinical care.
For Rebecca this has arisen in 2015 as a direct result of the Performance Improvement Plan. Rebecca has found this process extremely stressful and it has caused her significant stress and anxiety. In particular, Rebecca has found that particular words/phrases in the documents presented to her early in the year threatening. Examples of these include “termination” and “disciplinary action” in response to her illness. The increased scrutiny and surveillance of her work has caused significant distress for Rebecca. As a result she has experienced symptoms of stress including muscle tension, poor sleep and anxious ruminations which has caused her to take sick leave. There have been panic attacks and this may have contributed to her most recent episode of depression.
Dr Cannon confirmed these opinions when she gave evidence.
Report of Associate Professor Robertson, Consultant Psychiatrist
In his report of 3 August 2015[57] Associate Professor Robertson expressed the opinion that:
Ms Fairbrother presents with an evolving depressive pole of her type II bipolar disorder, which appears to be in response both to the travails of the workplace and to a lesser degree her physical health difficulties.
…
The primary attribution of Ms Fairbrother’s recent deterioration in mental state has been the challenges in managing the performance improvement process.
…
I am not entirely convinced that Ms Fairbrother’s mood disorder was sufficiently stable when the PIP process was implemented. I believe a reasonable “middle ground” on this situation was that Ms Fairbrother’s performance was still sub-optimal at the time the process was implemented and her continued difficulty abiding with the various prescriptions of the PIB created a somewhat circular process of poor performance leading to increased disturbance of mood and anxiety.
[57] Exhibit A14.
Discussion
I prefer the evidence referred to above to that of Dr Champion on this issue.
Having examined Ms Fairbrother in December 2016 Dr Champion was of the opinion that:
a range of factors are likely to have destabilised Ms.Fairbrother and affected her workplace functioning quite separate from perceptions of poor treatment she complains of in the workplace. The background includes a level of drug and alcohol abuse which had continued into the period of poor employment function.
Difficulties developed in the context of the background of mood instability and a recent marital breakdown and it is my view that the treatment received for the unlikely diagnosis (ADHD), involving the regular use of quite a high dose of stimulate medication, is likely to have increased anxiety considerably. The effect of Amphetamines when used as a recreational drug are to increase apparent levels of arousal which includes a significant heightening of anxiety. In cases of undoubted ADHD the stimulant drug is reported to have a paradoxical effect of producing a reduction of anxiety, reducing attention deficit and reducing hyperactivity.
…
None work related factors identified above, are also likely to have played into the situation. From Ms.Fairbrother’s perspective however, her failure in the workplace, she believes, was not due to any incapacity on her part but due to mental illness and in this she is correct.
…
I do not consider Ms.Fairbrother’s employment with the Reserve Bank significantly contributed to, or caused, the condition. Bipolar II Affective Disorder is considered to be due to constitutional factors but may be effected by lifestyle factors or stressors encountered.[58]
[58] Exhibit R84.
In his supplementary report of 16 August 2017,[59] Dr Champion disagreed with the view that events in the workplace contributed to severe anxiety and clinical depression in 2015:
This is inconsistent with the history provided elsewhere and that provided to me which indicated that Ms.Fairbrother had had pre-existing difficulties in the workplace associated with the illness that Dr.Cannon had diagnosed, causing Ms.Fairbrother and her employers concern well before PIP implementation in early 2015.
…
It appears that Dr.Cannon’s current views concerning the causation of the depressive episode in 2015 reflect the claims and perceptions of Ms.Fairbrother. This is unsurprising given Dr.Cannon’s role as the treating psychiatrist.
[59] Exhibit R85.
However at the time he wrote his reports Dr Champion was not aware of the history of Ms Fairbrother’s Bipolar II Disorder being stabilised prior to March 2015. He was considering the injury alleged by Ms Fairbrother in the claim made in December 2014, being an ongoing psychiatric injury caused by the meeting of 18 November 2014. When he gave evidence Dr Champion agreed that the history provided by Dr Cannon of the events leading up to June 2015 did support a diagnosis of a discrete episode of depression.
Issue 3: Was the aggravation of Ms Fairbrother’s Bipolar II Disorder “suffered as a result of” administrative action?
It was argued on behalf of Ms Fairbrother that the depressive episode which commenced about 23 June 2015 was caused by the Bank’s actions in commencing and maintaining the Performance Improvement Plan. It was conceded that the implementation of the plan was administrative action in respect of Ms Fairbrother’s employment.[60]
[60] Transcript 01/12/2017 p.2.
In Commonwealth Bank of Australia v Reeve and Another[61] the Full Court of the Federal Court said:
The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment… Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
…
Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1).[62]
[61] (2012) 199 FCR 463; [2012] FCAFC 21.
[62] Paras.60 & 62.

Applying what was said by the Court in Reeve I am satisfied that the concession that the action of commencing and maintaining the plan was administrative action in respect of Ms Fairbrother’s employment within the meaning of subsection 5A(1) is proper.
In reaching this conclusion I have taken into account the types of administrative action set out in subsection 5A(2). These include formal and informal counselling action and formal and informal disciplinary action. The list contained in this subsection is not exclusive but it gives some indication of the type of action which is administrative and in respect of an employee’s employment.
In Comcare v Martin[63] the High Court considered the causal connection which is required to give rise to the operation of the exclusionary provision of section 5A(1).
[63] [2016] HCA 43.
The Full Court said, in part:
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.[64]
[64] [2016] HCA 43 at para.47.
On the basis of the evidence of Dr Cannon and Associate Professor Robertson referred to in paragraphs 83-86 inclusive of these reasons, I am satisfied that had the Bank not commenced and maintained the Performance Improvement Plan during 2015, Ms Fairbrother would not have suffered the episode of depression which she did between the commencement of June 2015 and the end of February 2016.
Issue 4: Was the administrative action taken in respect of Ms Fairbrother’s employment “reasonable”?
The Performance Improvement Plan was first discussed with Ms Fairbrother in February 2015, although the need for her to improve her performance had been discussed with her on several prior occasions. Ms Fairbrother had informed the Bank that she had been diagnosed with a mental health condition seven months earlier, although at that stage a formal diagnosis had not been made.
The Bank did not act immediately to introduce a Plan although Ms Fairbrother’s performance had been below the required standard during the assessment period September 2012-August 2013 and subsequently. Instead she was advised that the Bank was prepared to make appropriate adjustments to her work environment on being advised of a formal diagnosis. In addition Ms Fairbrother was advised that the Employee Assistance Program was available to her. Even before the formal diagnosis was received Mr Bolt and Mr Emery assisted Ms Fairbrother by modifying her working hours and reducing her workload to give her greater flexibility and to make it easier for her to attend medical appointments. Ms Bolt met with Ms Fairbrother on a regular basis to assess her progress. Notwithstanding these efforts Mr Emery’s concerns with Ms Fairbrother’s work performance persisted.[65]
[65] See the evidence of Mr Emery at para.13 of these reasons.
Given this background, the implementation of a Performance Improvement Plan in February 2015 was reasonable action for the Bank to take. This was part of the Bank’s normal processes when an employee was not performing to an acceptable standard. It was not peculiar to Ms Fairbrother. Her work performance had been an issue since her 2013/2014 annual performance review.[66]
[66] Exhibit R79 para.13.
Although Ms Fairbrother was experiencing mental health issues and from time to time was absent from her employment, she was still able to attend on most days. While the Bank could reasonably be expected to assist Ms Fairbrother with her recovery, it is not reasonable to expect it to suspend its usual methods of performance improvement in circumstances in which Ms Fairbrother continued to come to work and to be paid on a full-time basis.
Issue 5: Was the administrative action taken in a “reasonable manner”?
The requirement is that the action be taken in a “reasonable” manner, not that it be faultless.
In Comcare v Martinez (No 2)[67] the Federal Court cited with approval the findings of the Supreme Court of South Australia in Keen v Workers Rehabilitation and Compensation Corporation,[68] which said:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
[67] (2013) 212 FCR 272 at para.83.
[68] (1998) 71 SASR 42 at paras.47-48.
Having considered all of the evidence I am satisfied that at all times the manner in which the Performance Improvement Plan was implemented and maintained was reasonable. My reasons for this conclusion follow.
During the meeting on 18 November 2014 Mr Emery was conscious of the difficulties being experienced by Ms Fairbrother and conducted the discussions appropriately. I accept his description of the nature of the meeting set out earlier in these reasons.
I accept also Mr Emery’s evidence that the plan was developed to measure performance and to identify targets, taking into account Ms Fairbrother’s preliminary diagnosis and the need to adjust workloads and hours worked.[69] It was not designed principally as a disciplinary measure.
[69] Exhibit R79 para.19.
On the basis of Mr Emery’s evidence I am satisfied that the meeting of 18 November 2014 was conducted in a reasonable manner and was brought to an end when it became apparent that Ms Fairbrother was becoming distressed.
I have also taken into account that the Bank sought the opinion of Dr Cannon and incorporated all of the matters raised by her in the plan.
I am satisfied that, as the senior staff member involved in managing Ms Fairbrother, Mr Harries acted in a reasonable manner at all times. He attempted to allay Ms Fairbrother’s concerns as to how she was being treated by agreeing to stand in for Ms Dumovic. This he did even though there was no proper basis for Ms Fairbrother’s objecting to Ms Dumovic’s conduct.
Ms Fairbrother was critical of the Bank’s reference to possible disciplinary action and/or termination. Ms Fairbrother attended her place of work and worked in her designated role during most of the period during which he suffered the depressive episode. In these circumstances it was reasonable for the Bank to seek to address Ms Fairbrother’s failure to perform the duties and it was reasonable for Mr Harries to make clear the consequences of her failure to improve.
The introduction of the plan was discussed at the meeting on 18 February 2015. Ms Fairbrother was accompanied by an appropriate support person. She was provided with a copy of the draft plan and a referral to the Employee Assistance Program before the meeting. On the basis of the record made by Ms Saboisky I am satisfied that this meeting was conducted appropriately.
When it received the advice of Dr Cannon in her letter of 9 June 2015 the Bank acted in a reasonable manner in seeking the advice of Associate Professor Robertson and subsequently suspending the plan. I am satisfied that the delay in obtaining the opinion of Associate Professor Robertson was reasonable bearing in mind that Dr Cannon became aware of the existence of the plan shortly after its implementation but did not write to the Bank expressing her concerns as to its effects until 9 June 2015.
I have taken into account the evidence of Ms Fairbrother as to the circumstances of the introduction and implementation of the plan. In many respects she disagrees with the evidence of the witnesses called by the Bank. As I said at the outset, I am satisfied that Ms Fairbrother was an honest witness who gave her evidence to the best of her recollection. However I am satisfied that her perception of the incidents which affected her was affected by the illness from which she suffered at the time and that, in turn, this has affected her recollection of events. This has caused me to conclude that where there is conflict between the evidence of Ms Fairbrother and the witnesses called on behalf of the Bank, I prefer the evidence of the latter.
In reaching this conclusion I have taken into account the report of Mr O’Neill dated 9 December 2016,[70] in particular his assessment of Ms Fairbrother’s personality and her likely reaction to the environment in which she worked at the Bank. I consider that it is inappropriate to reproduce the details of this report in these reasons.
[70] Exhibit R83.
In these circumstances I am satisfied that the administrative action was taken in a “reasonable manner”.
CONCLUSION
In summary, I am satisfied that the depressive episode suffered by Ms Fairbrother from about 23 June 2015 until late February 2016 was suffered as a result of the Bank’s commencement and maintaining of a Performance Improvement Plan in respect of Ms Fairbrother. I am satisfied also that this action was reasonable administrative action taken in a reasonable manner in respect of her employment by the Bank.
The decision under review, being the decision of the Reserve Bank of Australia, made 20 April 2016, to reject Ms Fairbrother’s claim for compensation for a psychological injury made 4 December 2015, will be affirmed.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

...............[sgd].........................................................
Associate
Dated: 25 May 2018

Date(s) of hearing: 27-30 November, 1 & 4 December 2017

Counsel for the Applicant: Mr A Coombes

Solicitors for the Applicant: Turner Freeman Lawyers

Counsel for the Respondent: Mr P Jones

Solicitors for the Respondent: Graham Jones Lawyers

[2018] AATA 1339

25 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Damages

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Date(s) of hearing:	27-30 November, 1 & 4 December 2017
Counsel for the Applicant:	Mr A Coombes
Solicitors for the Applicant:	Turner Freeman Lawyers
Counsel for the Respondent:	Mr P Jones
Solicitors for the Respondent:	Graham Jones Lawyers