Forrest and Comcare (Compensation) - [2024] ARTA 596

Forrest and Comcare (Compensation) [2024] ARTA 596 (11 November 2024)
Applicant/s:  Belinda Anne Forrest
Respondent:  Comcare
Tribunal Number:                2024/0826

Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:11 November 2024

Decision:The Tribunal is satisfied that the meetings held on 27 April 2022, 4 May 2022, 9 May 2022 and 17 May 2022 constitute reasonable administrative action taken in a reasonable manner.
The Tribunal directs that the matter be listed for a telephone directions hearing to consider whether the decision under review should be affirmed, at 9am on 20 November 2024.

Catchwords
WORKERS COMPENSATION – applicant required to attend meetings to discuss whether she was performing at level – the meetings were preliminary meetings to advise her that her supervisors did not consider that she was performing at level – whether the meetings were reasonable administrative action – whether the meetings were consistent with the procedures for giving feedback on underperformance – whether the applicant should have been given prior notice of the initial meeting – whether the applicant should have been allowed a support person at the meetings – whether the applicant was yelled at in the meetings – whether the applicant was ‘gaslit’ during the meetings – the meetings were reasonable administrative action
Legislation
Safety, Rehabilitation and Compensation Act 1988 s5A
Statement of Reasons

The applicant began work with the National Archives of Australia (NAA) in 2017. She worked as a case manager in the Human Resources team. She worked successfully in that role for two years and the reports on her performance were good. Her relationship with her supervisor Margaret Knox was close. However, in October 2019 a disagreement developed between the applicant and Ms Knox about the handling of a particular workplace issue. Ms Knox raised her voice in a discussion with the applicant, which the applicant took exception to, and as a consequence, the applicant took leave. She was certified unfit for duty until 4 November 2019. She was certified as suffering from an ‘adjustment disorder with mixed anxiety and depression due to workplace bullying’.
The applicant returned to work on 5 November 2019 but was placed in a different location doing different work. She no longer had any dealings with Margaret Knox. The applicant’s mental health appeared to stabilise in the new role even though she was not happy with the new work arrangement. The work she was doing, which involved generating Human Resources (HR) reports for analysis by management did not play to her strengths. The applicant’s discontent with the job caused her to seek work outside the NAA. She secured a temporary contract as a Senior HR advisor in the ACT Health Directorate. However, the transfer did not run its full term as the applicant felt she was being bullied. She submitted her resignation and resumed duties at the NAA. She resumed her position as an APS 6 doing HR reporting on 1 July 2021. Her direct supervisor was Anthony Ronson. His supervisor was Andrew Spencer.
Soon after the applicant returned to the NAA a COVID 19 lockdown was imposed. The applicant worked from home until the lockdowns were gradually lifted through November and December 2021. The applicant’s mental health appears to have been poor in this period but she was able to work. When the applicant returned to work her supervisor was Cheryl Toussaint.
She had a good relationship with Ms Toussaint and her enjoyment of her work increased. In February 2022 the applicant was advised for the first time that there may be issues with her work performance. No specifics were provided but the issue was raised in the context of a mid-cycle performance review. Soon after, Ms Toussaint moved to another area and Mr Ronson became her direct supervisor again.
On 27 April 2022 the applicant attended a meeting with Mr Ronson and Mr Spencer. Concerns about her work performance were raised which upset the applicant and she took a period off work. She was certified unfit for work between 29 April 2022 and 6 May 2022.
On 4 May 2022 the applicant scheduled a meeting with Mr Spencer’s supervisor Ruth Fenwick to complain about what she described as bullying by Mr Spencer and Mr Ronson. Ms Fenwick was not sympathetic to the complaints and the applicant left the meeting extremely angry. There are differing accounts as to how Ms Fenwick behaved at that meeting.
On 9 May 2022 the applicant returned to work and met again with Mr Spencer who assigned the applicant a new supervisor, Ronelle Seaton, and assigned her a new project to work on under the supervision of Ms Seaton. The applicant subsequently complained about the conduct of this meeting as well. However, she attended work for the next week and worked on the task she was assigned. However, the day before a follow up meeting was to occur, the applicant discovered that what she had understood the task was, was different to the task which she had actually been given. Despite reassurance from Ms Seaton that the work she had done was still salvageable, the applicant arrived the next day concerned that she had been mislead about the task she was required to undertake. The meeting to check on progress proceeded. The progress of the task and the confusion about the nature of the task was discussed. Mr Spencer then raised an email which the applicant had sent him which referred to his children and implied the applicant was being singled out and bullied by Mr Spencer. When Mr Spencer described this as unprofessional the applicant responded with the allegation that Mr Spencer was bullying her and soon after left the meeting slamming the door behind her.
The applicant left work that day and has not returned since.
She remains employed by the NAA but is not attending work. She remains extremely unwell. Since May 2022 the applicant has made bullying allegations to the Director General of Archives who had the allegations formally investigated. No bullying complaint has ever been substantiated. The applicant has made complaints about how she was treated through a variety of channels including the police and the National Anti-Corruption Commission. From the applicant’s perspective she has been unable to achieve a suitable outcome or even a fair hearing on the issue.
The applicant applied for workers compensation on 18 January 2023. The claim was in relation to a major depressive illness.
In a determination dated 31 May 2023, Comcare accepted liability for the applicant’s condition. However, liability was only accepted for a closed period. The Comcare delegate accepted that the applicant suffered an aggravation of a Major Depressive Disorder with anxious distress based on a report prepared by psychiatrist Dr Tessa Daws dated 9 May 2023. The delegate was satisfied that the applicant’s employment significantly contributed to the aggravation.
Dr Daws’ report supported the view that the applicant was experiencing symptoms of depression from 2019 due to perceived bullying/mistreatment by Ms Knox. The delegate however also noted Dr Daws’ conclusion that the applicant’s condition stabilised for a period before a further exacerbation took place in April 2022 with the perceived bullying and mistreatment by supervisors being the significant contributing factor.
The delegate then went on to consider whether, despite the fact that the applicant’s employment contributed to a significant degree to the aggravation of her depressive illness, any exclusion applied. The delegate concluded that the aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner.
Ailments which arise as a result of conduct of this kind are excluded from the definition of compensable injuries and no compensation is payable in relation to them.
The delegate determined that the meetings conducted on 27 April 2022, 9 May 2022 and 17 May 2022 all constituted reasonable administrative action conducted in a reasonable manner.
The delegate concluded that Comcare was liable to pay compensation in relation to the period from 8 October 2019 to 19 October 2020, however it was not liable to pay compensation for the aggravation of “Major Depressive Disorder with anxious distress” with the date of injury being 27 April 2022 onwards. The ‘reasonable administrative action’ exclusion applied.
In a reviewable decision dated 20 July 2023 that decision was affirmed.
There was a delay in the applicant applying to the Tribunal for a review of that decision. An application for review was received on 9 February 2024. The Tribunal granted an extension of time to allow the application to proceed.
However, in course of considering the extension of time, it became clear to the Tribunal that because the applicant had not been working since May 2022 and had exhausted her leave entitlements, she was at risk of mortgage foreclosure and losing her house if she did not access another source of income. As the only identifiable issue between the parties based on the reviewable decision was whether or not the meetings in April and May 2022 constituted reasonable administrative action, the Tribunal decided to hold a hearing in relation to that issue. It did so on the basis that if the outcome of that issue were known it may render a hearing on other issues unnecessary.
The parties were given opportunities to file evidence and statements of facts, issues and contentions. The matter was heard over three days from 4 to 6 November 2024. The applicant represented herself.
The only question considered was whether each of the identified meetings constituted reasonable administrative action conducted in a reasonable manner.
I am satisfied that each of the meetings meets that description. The likely effect of that conclusion is that the applicant’s claim for compensation cannot succeed in relation to any period on or after 27 April 2022.
To explain why, I have structured my reasons as follows. First, I set out the evidence which has been made available to me. Second, I consider a specific issue which arises in relation to the applicant’s evidence – namely, whether she has a tendency to misperceive the conduct of others when she is being given adverse information. This issue is important because the applicant’s evidence as to what occurred at the various meetings is in stark contrast to the other accounts of the meetings. It has not been put to me that the applicant is being dishonest. The contention advanced by the respondent is that her evidence should be discounted as a consequence of her personality structure which causes her to misperceive events. It is necessary to determine this issue before making findings about what occurred at the meetings in question. Third, I make my findings of fact in relation to each of the meetings including whether the meeting constituted administrative action and whether it was reasonable and the meeting was conducted in a reasonable manner. Finally, I consider what the consequences for the further conduct of the matter will be in light of the findings which I make.
Evidence
The evidence before me consisted of the following:
(a)The T Documents;
(b)The bundle of documents obtained under section 71 marked from A1 to A28 (which include witness statements taken for the purposes of an earlier bullying inquiry conducted at the request of the Director-General of the NAA);
(c)The bundle of documents entitled ‘Applicant’s Submissions’ marked from A1 to A6 which include the report prepared by O’Connor Marsden & Associates (OCM) into the applicant’s bullying complaint;
(d)Exhibit R1 – which consists of relevant agreed summonsed documents marked S1 to S12 which includes primary material relevant to the conduct of the meetings in April and May 2022;
(e)Exhibit R2 – which consists of emails and other documents relevant to the applicant’s return to work in November 2021 following the COVID lockdowns;
(f)Exhibit R3 – A supplementary report by psychiatrist Dr Tess Daws dated 11 October 2024;
(g)Exhibit R4 – A statement by Andrew Spencer dated 16 September 2024;
(h)Exhibit R5 – A statement by Anthony Rosson dated 16 August 2024;
(i)Exhibit R 6 – A statement by Ronelle Seaton dated 17 September 2024.
The applicant’s evidence
The applicant gave evidence that in each of the meetings which she attended she was bullied. She initially claimed that she was yelled at in two of the meetings but backed away from that claim in relation to the meeting of 27 April 2024. She claims that her colleagues set out unfairly to demean her and her work and without any justification singled her out for criticism for small errors in her work. She also claimed that her colleagues engaged in ‘gaslighting’. Gaslighting is a term which has become popular in recent years and refers to manipulative behaviour by a person designed to make another person question their own perception of reality. The expression is derived from the title of a 1944 film called ‘Gaslight’ in which a husband subtly alters things in the family home which make his wife feel that she is losing her mind. She claims that she was deliberately misled by her supervisors as to what tasks she was required to perform and that this was done maliciously. She also complains that the way in which she was advised about the meetings and the way in which they were conducted was inappropriate and inconsistent with the requirements for managing performance in the NAA.
There cannot be any doubt that what the applicant told the Tribunal happened is consistent with what she remembers about the various encounters and how they made her feel. I am satisfied that the applicant is a truthful person who takes being honest very seriously. I am certain that she believes that she was bullied and gaslit. Since June 2022 she has pursued complaints about how she was treated in the hope of achieving what she regards as suitable redress for unfair and unacceptable conduct by employees of the NAA.
Her accounts of the meetings however differ markedly from the accounts given by other witnesses in significant ways. In order to reach proper conclusions about how the meetings were conducted it is necessary to make a decision as to who to believe where the accounts differ. In my assessment, the applicant does not always perceive and remember accurately the tone and content of meetings where adverse information is being delivered. One example of this is the following.
Immediately following the applicant’s first meeting with her supervisors to discuss issues with her performance, the applicant made a file note of what occurred. The file note was headed ‘Workplace Incident 27 April 2022 – Bullying, verbal abuse, intimidation’.
The applicant recorded:
·No warning of meeting invite, called into Mr Spencer’s office straight off the floor;
·No offer to bring a support person;
·No prior warning of what meeting was in regards to and being able to plan;
·No health & wellbeing check prior to yelling at me and telling me that I was not performing as an APS6 in my role; and
·No evidence provided to support false allegations.
When the applicant gave her account of the meeting of 27 April 2022 to OCM, the investigators into her bullying complaint, she characterised her treatment in the meeting in this way:
I’ve always been open to constructive criticism…I always want to perform better. Then to be absolutely pulled down and ripped to shreds over nothing when everyone else just gets away with it.
The applicant backed away from the claim that Mr Spencer yelled at her in the meeting of 27 April 2022 in her oral evidence before the Tribunal. However, she maintained that he spoke to her in a demeaning and condescending way and in a tone that he would never use in relation to anyone else. The allegation remains a serious one.
The applicant’s descriptions of the conduct of the meeting stand in contrast to how the other witness to the meeting Anthony Rosson describes what occurred.
We didn’t yell or raise our voices. Andrew was very gentle with Belle, he did a lot of the talking, he was very supportive. Ultimately, we were there because we wanted her to be able to perform ok in the role.
In relation to the other meetings between Mr Spencer and the applicant, she reported on each occasion being bullied. In her file note of the meeting of 9 May 2022 she noted that during the meeting she said to Mr Spencer that ‘discussion was pointless because he has an agenda to bully me that was all. So, it would never matter what I said, it was never going to make any difference’.
In contrast Ronelle Seaton who also attended the meeting, says that Mr Spencer ‘…explained where he was coming from, what he wanted her to do, kept a very engaging tone…I was impressed with how Andrew handled the conversation’.
The respondent contends that the explanation for the stark contrast in the way the applicant perceives what occurs in these meetings and what others say actually occurred in the meeting lies in her personality structure. To advance this submission the respondent relies on the supplementary report of Dr Daws. After reviewing previous psychometric testing results and her previous clinical examination of the applicant, Dr Daws expressed the following view:
In Ms Forrest’s case, she described interpersonal difficulties with colleagues in multiple workplaces in the past decade. The difficulties described were consistent with the psychometric testing, which suggested a sensitivity to perceived criticism and black and white thinking. These types of cognitive tendencies may predispose an individual to perceiving situations in a hostile manner and developing a sense of people being ‘with me or against me’. This is then coupled with impaired capacity to consider alternative perspectives and reflect upon how their own cognitive biases may be affecting their perception of the situation…In my opinion the inconsistency between Ms Forrest’s perceived experience of bullying and the results of the [bullying investigation conducted by OCM] can be reconciled with the understanding that Ms Forrest has a tendency toward the described cognitive biases. These cognitive biases in my opinion can be viewed as personality vulnerabilities, noting that these appear to be enduring traits that have been present for many years and across several contexts…
The applicant does not accept that explanation. She regards herself as a very truthful person and has persuaded herself that others are lying and have engaged in trickery.
Having heard her evidence and read carefully the accounts of the various interactions between the applicant and her supervisor, I am satisfied that she readily experiences meetings where attempts are being made to convey adverse information about her performance and behaviour as attacks from people with malicious intent towards her.
It is notable that the applicant has at various points in time claimed that she was yelled at or verbally abused by:
(a)her former supervisor at the NAA Margaret Knox;
(b)her supervisor when she worked for ACT Health Directorate[1],
(c)Andrew Spencer; and
(d)Ruth Fenwick.
All of the NAA employees deny yelling at the applicant and in the case of Andrew Spencer that denial is verified by an independent witness. As yelling at a person is a breach of the Australian Public Service Code of Conduct, it is difficult to accept that the applicant has been subject to such behaviour, on multiple occasions, without any adverse findings against any of the individuals concerned.
[1] T5.34 p 116
The fact that Mr Rosson reports on the tone used by Mr Spencer in such different terms to the way the applicant perceived them supports the conclusion that the applicant does not perceive accurately what is occurring. Dr Daws’ evidence provides an explanation as to why this may be the case.

In these circumstances I am not satisfied that the applicant is a reliable witness. While she very reliably recounts how she felt and what she remembers, I am satisfied that she does characterise as hostile and unreasonable interactions which do not have that character. Changes in tone she perceives as yelling, and negative feedback she perceives as bullying. This has significance for assessing the evidence. Particularly in relation to the meeting between the applicant and Ruth Fenwick. There were no witnesses to that meeting, but the applicant gave powerful evidence of inappropriate conduct on the part of Ms Fenwick in terms of tone and demeanour. In light of my view that the applicant perceives conduct as much more hostile than it objectively is, I am not prepared to find that Ms Fenwick engaged in the conduct described by the applicant. I prefer the account which Ms Fenwick gave to the OCM investigators and that forms the basis of my factual conclusions.
It is through this lens that I also approach the applicant’s allegations of gaslighting, bullying and intimidation.
With that in mind it is now appropriate to set out my findings on what occurred at the four meetings in April 2022 and May 2022 to determine whether they constituted reasonable administrative action taken in a reasonable manner.
Meeting of 27 April 2022
The meeting of 27 April 2022 occurred against the following background.
The applicant had suffered a number of work setbacks in the previous 3 years where:
(a)the applicant was moved away from work that she enjoyed due to the incident with Margaret Knox;
(b)had an unsuccessful stint at ACT Health; and
(c)returned to the HR reporting area where she had limited skills and experience.
In addition, the applicant felt singled out in the transition back to work from the COVID lockdown in November 2021 and interpreted the instruction to her to return to work as bullying by Andrew Spencer. The essence of her complaint appears to be that the NSW roadmap for return did not require unvaccinated workers (which she was) to return until December 2021, but she was expected to return in November. Having reviewed the correspondence it is clear that Mr Spencer had limited if any involvement in the return to work decision and at all times the applicant was asked whether she was happy with any proposed return to work arrangements. Be that as it may, the applicant was apprehensive about how she was being treated from that point.
When she returned to work the applicant had a new supervisor, Cheryl Toussaint. Cheryl was very sympathetic in her view towards the applicant and did her best to encourage her to feel more a part of the team. Ms Toussaint was also at times quite critical of both Mr Spencer and Mr Rosson. Mr Spencer for not being inclusive enough and Mr Rosson for not being able to explain things well.
But even Ms Toussaint identified deficiencies in the applicant’s work. She indicated that in relation to the applicant, feedback was warranted. She noted that:
When I started supervising Belle, to deliver monthly reports, she started populating information where she could and getting the reports ready to go, being quite proactive. Otherwise, from a work perspective she would just sit there and not initiate things for herself – I felt she was fearful of getting things wrong, again I’m not sure if it’s her personality or past experience in the workplace.
The applicant herself accepted in her evidence that it took her only a few days a month to generate the reports she was required to generate each month. The rest of the time she spent on her phone or on the internet on non-work related matters although at times she sought work from other areas.
When Ms Toussaint left and Mr Rosson became the applicant’s supervisor again, Mr Rosson was concerned about how quickly the applicant did her work and how little attention the applicant paid to the reports she produced and the audience they were directed at. Mr Spencer was concerned about the lack of initiative the applicant showed and the amount of time that Mr Rosson spent providing support to her to enable her to complete her work.
I am satisfied that there were sufficient issues with the applicant’s work performance that it was appropriate to raise them with her. The issues were real and were not simply manufactured to bully her.
Under the National Archives Performance Management Policy 2008 which applied at the time of the meetings in 2022, a number of elements are relevant. The NAA’s performance management scheme included an element entitled ‘Providing regular feedback’. The Policy noted that ‘the success of the performance scheme is dependent on a regular constructive two-way conversation between an employee and their supervisor’. It goes on to discuss the possibility of implementing formal feedback sessions. It also notes:
Putting in place a formal feedback session should in no way limit regular informal feedback during the cycle, particularly where a major task has been completed well or where performance may not be up to expected levels. Providing regular feedback throughout the cycle should ensure there are no surprises during the formal feedback sessions.
When Chery Toussaint ceased supervising the applicant and moved to the supervision of Mr Rosson, Mr Spencer was concerned that Mr Rosson was not providing the necessary feedback to the applicant. In particular, he was concerned that the applicant was not performing at a standard that would be expected of an APS 6. To ensure that the applicant received clear feedback about this concern it was decided that Mr Spencer and Mr Rosson would meet with her.
Mr Spencer says in his statement (and I accept) that before the meeting of 27 April he and Mr Ronson considered how best to approach the first meeting with the applicant. Mr Spencer decided that the first meeting should be more informal and it was better not to give notice to ensure the applicant did not become unnecessarily anxious. As his intention for the meeting was that it was supposed to be an initial discussion rather than the start of a formal performance management process, that decision seems reasonable. Equally, any decision to give the applicant the option of a support person would inevitably elevate the meeting in terms of significance. The decision not to is reasonable.
In terms of the conduct of the meeting, I am satisfied that Mr Spencer did not raise his voice. I am satisfied that given that Mr Spencer was concerned that Mr Rosson was not being clear with the applicant about performance concerns it was reasonable for him to conduct the meeting. I am satisfied that Mr Spencer communicated clearly that in his assessment the applicant was not performing at a standard expected of an APS 6. When the applicant asked for examples, I am satisfied that Mr Spencer identified deficiencies in the performance of two work tasks and three more general behaviours of concern. The work task issues related to:
(a)a report prepared the day before by the applicant; and
(b)the low level of the applicant’s input into the framing of a task that was to be referred to external consultants.
The three more general behaviours were identified as issues:
(a)Failing to use initiative;
(b)Rushing work; and
(c)Spending long periods on her phone or staring at the computer.
The applicant had responses in relation to all of these matters.
In order to avoid having to resolve the issues which the applicant raised, Mr Spencer indicated that the applicant would be given two projects to work on to allow her to show that she could perform at the APS 6 level. These were the development of an indigenous employment strategy and development of a disability employment strategy. The applicant agreed to take on the tasks. The applicant now complains that the conversation was not a two way conversation. However, she agrees that the purpose in assigning the work was to resolve her complaint about her not having enough work to do, and that in assigning the work, Mr Spencer was giving her an opportunity to show she could perform at level.
Despite these concessions the applicant would not concede that the conduct of the meeting did not amount to bullying.
The applicant left the meeting very upset. She went home that day and subsequently saw her doctor who certified her unfit for work.
Subsection 5A(2) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides that 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.
I am satisfied that the meeting of 27 April involved an appraisal of the applicant’s performance and informal counselling action. It was communicated to the employee that she was not performing at the level of an APS 6 and specific concerns were raised directly with her. The means by which she could prove to her supervisors that she was capable of performing at the APS 6 level were outlined. What occurred in the meeting meets the statutory description of administrative action.
I am also satisfied that the action was reasonable and taken in a reasonable manner. First, there were performance issues which needed to be addressed. At the very least the fact that the applicant was spending long periods not performing any work was a matter of concern which needed to be rectified regardless of who was at fault.
It was reasonable for the meeting to be conducted by Mr Spencer and Mr Rosson given Mr Rosson’s reluctance to raise performance issues with the applicant in the past and the need for the issues to be conveyed clearly by an experienced manager.
It was reasonable for the applicant to be asked to attend the meeting at short notice and without a support person. The purpose of the meeting was not to begin a formal process. Its purpose was to communicate issues which the applicant’s supervisors had with her work and identify a path whereby the applicant could demonstrate her ability to perform at the APS6 level. Given how preliminary the discussion was, it was within the range of approaches that could be considered reasonable. No significant adverse decisions were planned to be made at that meeting.
There was nothing inappropriate said at the meeting nor was the tone of voice used by either Mr Spencer or Mr Rosson inappropriate. I am satisfied that what occurred at the meeting was reasonable administrative action taken in a reasonable manner.
Meeting with Ruth Fenwick
The applicant initiated a meeting with Ruth Fenwick on 4 May 2022.
For the reasons explained earlier I am satisfied that the description of the tone of the meeting as described by the applicant is not accurate. I am not satisfied that Ms Fenwick yelled at the applicant or otherwise behaved inappropriately.
In terms of the content of the meeting I am satisfied of the following.
The applicant complained that she was being bullied by Mr Spencer and Mr Ronson. I am satisfied that Ms Fenwick disagreed. She explained that it was not inappropriate for the discussion to be conducted on short notice and in the absence of a support person and that it was reasonable for the applicant’s supervisors to raise issues without specific evidence of underperformance. She also added that she had heard from other supervisors that there were performance issues.
Ms Fenwick asked the applicant whether she had looked at the APS 6 work level standards or done a self-assessment against them. She also asked whether the applicant wanted her to stop the process. The applicant said she wasn’t sure.
Ms Fenwick gave the applicant alternatives to continuing under Mr Spencer and Mr Rosson but which still resulted in the applicant undergoing performance management.
The applicant’s early return from ACT Health was discussed. Resilience training was discussed.
The applicant stated that if the workplace couldn’t offer her the fulltime equivalent workload to support her being fulltime, then that was not her fault.
Ms Fenwick advised that she supported Mr Spencer and Mr Rosson in performance managing the applicant.
At the conclusion of the meeting the applicant was again very upset.
I am satisfied that the meeting was administrative action within the meaning of that phrase in section 5A of the SRC Act.
It was an action done in connection with the counselling action commenced by Mr Spencer and Mr Rosson (section 5A(2)(e)). I am satisfied that it was reasonable.
I do not accept that any inappropriate or unreasonable tone was adopted by Ms Fenwick. The content of the discussion was appropriate in light of the issues raised by the applicant. Ms Fenwick provided the applicant with alternatives to continuing with the assessment of her performance that had been proposed. In the circumstances, it would have been inappropriate for Ms Fenwick to intervene in the process. The applicant was complaining that she was not being given sufficient work to do and Mr Spencer had devised a plan to remedy that issue and assess the applicant’s work performance. On this basis I am satisfied that the meeting constituted reasonable administrative action taken in a reasonable manner.
Meeting of 9 May 2022
When the applicant returned to work she met with Mr Spencer and Ronelle Seaton.
The purpose of the meeting was to assign work to the applicant. However, early in the meeting the applicant indicated that she wanted to understand why she ‘was being performance managed’. She stated that she was being bullied by Mr Spencer. She was upset and emotional during the meeting.
Mr Spencer provided the applicant with a copy of the work level standards and stated that she was under performance management because she was not performing at the appropriate level. The applicant advised that the feedback she had got in her individual work plans from her managers was positive. Mr Spencer disagreed. She stated that him saying she was not performing at an APS 6 level without providing specific evidence was bullying. The two examples of poor performance previously given were argued about. Mr Spencer also emphasised that he expected an APS 6 to show initiative. The applicant reiterated that Mr Spencer’s agenda was to bully her and nothing she said would make any difference. Mr Spencer stated that that was why he was giving her an opportunity to do different types of work to show areas that might be her strengths.
The applicant sought copies of employment strategies so she would know what to do. Mr Spencer said yes, he would email her strategies following the meeting although these would not be examples of good work that should be followed. Mr Spencer suggested that in a week or two they could meet to have a discussion of where things were at.
The applicant suggests that this meeting was inappropriately conducted because Mr Spencer never inquired about her health or offered her a support person. I accept it would have been best practice for a supervisor to inquire after the applicant’s health at the start of the meeting given that she had just returned from taking personal leave. His failure to do so did not render the conduct of the meeting not reasonable.
It was also reasonable not to allow the applicant to have a support person present. The primary purpose of the meeting was to give the applicant a task to perform, it was not necessary for the applicant to have a support person there.
The applicant was again upset by the meeting. However, accepting her version of the meeting as recorded in her contemporaneous file note I cannot identify anything untoward that took place.
I am satisfied that the meeting as conducted was administrative action. The meeting involved both an appraisal of the applicant’s performance and matters connected with the further appraisal of her performance – namely the allocation of tasks which would form the basis of a performance assessment. The meeting was reasonable to conduct and was conducted reasonably.
The applicant’s real objection to this meeting is that it began the process by which she was ‘gaslit’. Her contention is that she was told that the task she was to perform was preparation of indigenous and disability employment strategies as opposed to the preparation of a discussion paper that may lead to the preparation of those strategies. She is adamant that she was deliberately told one thing in order to cause her to fail at the task.
There are numerous difficulties with that version of events.
First, Ms Seaton, who the applicant accepts was kind to her and supportive of her during the brief period in which she supervised her, has provided a statement which says that what Mr Spencer told the applicant in the meeting was as follows:
‘This is what you are going to do – you will need to write a discussion paper for these employment strategies.’
Second, immediately following the meeting the applicant was sent an email by Mr Spencer. It included the following statement:
The two projects are to commence work towards establishing an Indigenous Employment Strategy and a Disability Employment Strategy. We discussed that there are actions in our Diversity Plan relating to this to use as a starting point. The first phase is to draft discussion papers that identify the opportunities we have in this space and how we might work towards developing an effective strategy. [emphasis added]
If there had been a plan to have the applicant believe until the next meeting that she was to work on the strategies themselves rather than discussion papers, it was completely undermined by the sending of this email. The applicant only had to read the email and she would know what the task was.
As it happened, the applicant did not read the email and for the next week made significant efforts to draft the strategies themselves. She only discovered her error on 16 May 2022 when she was sent an example of a discussion paper and then approached Ms Seaton for clarification of the task. Regrettably the applicant has never been able to accept that the mistake happened at her end. “So now I am deaf as well as stupid” was her reaction to being told that she had not been asked to prepare strategies.
Third, if Ms Seaton’s plan was, as the applicant believes, to engage in trickery, her subsequent conduct is difficult to explain. She reassured the applicant that her work could still be used in the discussion paper. Further, when the issue came up in the meeting with Mr Spencer on 17 May 2022, Ms Seaton took responsibility for the error by saying that she had been using inconsistent terms to describe the task.
I am satisfied that neither Ms Seaton nor Mr Spencer ever took any step to gaslight the applicant. She simply failed to listen carefully enough in the meeting of 9 May 2022 and then failed to read the email which specified the task she was to undertake. Because she had already grasped the wrong end of the stick at the start of the week, she misinterpreted all of the discussions which she had with Ms Seaton over the course of the following week.
I reject any suggestion that the applicant was gaslit at the meeting on 9 May 2022 or following. The meeting of 9 May 2022 constituted reasonable administrative action taken in a reasonable manner.
The meeting of 17 May 2022
The meeting of 17 May 2022 was attended by Mr Spencer, Ms Seaton and the applicant.
The meeting was set up to monitor the applicant’s progress with the task she had been assigned. I am satisfied that the applicant was anxious about attending the meeting in light of her failure to understand the task she had been assigned, and the view that she had that she had been deliberately tricked into misunderstanding what work she had been assigned. She asked Ms Seaton if she could avoid the meeting with Mr Spencer but Ms Seaton encouraged her to attend, which she did voluntarily. Mr Spencer, who had COVID at the time, attended via Microsoft Teams.

No inquiries were made during the meeting about the applicant’s health nor was she offered a support person. In an ideal world some inquiry after the applicant’s health would have occurred, but it did not render the conduct of the meeting not reasonable as a consequence of the failure to do so.
There was no reason for the applicant to have a support person at the meeting as the only purpose of the meeting was to gauge the progress which the applicant had made on the assigned task.
The discussion at the meeting focussed initially on the progress of the work task which the applicant had been assigned. Ms Seaton explained to Mr Spencer that the applicant had been working on a strategy rather than a discussion paper but the fault lay with her as a result of the use of confusing language. Mr Spencer accepted that clarity of language was important but noted that the applicant needed to make an effort to ensure she understood what task she was working on.
Mr Spencer then raised with the applicant an email which the applicant had sent which referenced his children and complained about the treatment which the applicant was receiving from Mr Spencer which the applicant categorised as singling her out. Mr Spencer described the email as unprofessional. The applicant reacted during this discussion. When Mr Spencer stated that the process was to address performance concerns, the applicant became angry and claimed that she was being told this for the first time. The applicant then said that she would not be bullied and left the meeting slamming the door behind her.[2] She has not returned to work since.
[2] Exhibit R1 S6
Mr Spencer immediately suspended the informal performance process and sought to have an external case manager engaged to ascertain the applicant’s capacity to undertake performance management.[3]
[3] A14 p 74-75
I am satisfied that the meeting was administrative action for the same reasons explained in relation to the 9 May meeting.
I am also satisfied that the meeting constituted reasonable administrative action taken in a reasonable manner. It may have been better if Mr Spencer had checked on the applicant’s health at the start of the meeting or perhaps if the meeting had not proceeded at all given the applicant’s anxiety about attending a meeting when she had just realised she had misunderstood the task she was to undertake. However, I am satisfied on this occasion she did agree to attend after the encouragement of Ms Seaton, and proceeding in those circumstances was reasonable. Given the very interim nature of the meeting and the fact that no consequences were likely to flow from the meeting, it was reasonable not to make inquiries after the applicant’s health at the start or to provide a support person.
The issues raised by Mr Spencer were reasonable and his handling of them appropriate.
In all of the circumstances I am satisfied that the conduct of the meeting was reasonable.
CONCLUSION
The medical evidence available to the Tribunal at present supports the view that the applicant was psychologically unwell at the start of April 2022. However, she was well enough to work and she continued to attend the workplace on a full time basis until the first meeting on 27 April 2022. The applicant’s health then rapidly declined as each successive meeting took place between 27 April 2022 and 17 May 2022. Her underlying depression was severely aggravated by the performance management process initiated on 27 April 2022. After the last meeting on 17 May 2022 she has been so unwell that she has been unable to work at all.
Given the evidence that supports the conclusion that the events which aggravated the applicant’s psychological ailment were those meetings, it has been necessary to consider whether those meetings constituted reasonable administrative action taken in a reasonable manner. For the reasons set out above I am satisfied that the meetings do fit that description. As a result, the aggravation of the applicant’s depression is not a disease which meets the statutory definition of an ‘injury’ which is a pre-requisite for the payment of compensation.
In these circumstances it is very unlikely that the applicant’s claim can succeed.
However, as the issue of whether the meetings in question constituted reasonable administrative action was set down as a preliminary question for determination, I will not make a final decision to affirm Comcare’s decision until I have heard from the parties.
I therefore simply note that I am satisfied that the meetings on 27 April 2022, 4 May 2022, 9 May 2022 and 17 May 2022 constitute reasonable administrative action taken in a reasonable manner, and will list the matter for a directions hearing to consider whether an order should be made that Comcare’s reviewable decision is affirmed, or the matter listed for a further hearing on any other outstanding issue.

112. I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President D O’Donovan.

…………………[SGD]…………………
Associate

Dates of hearing: 4, 5, 6 November 2024

Applicant self-represented

Solicitor for the Respondent: Ms Athena Cains (McInnes Wilson)

Counsel for the Respondent: Ms J Dempster

Dates of hearing:	4, 5, 6 November 2024
Applicant self-represented
Solicitor for the Respondent:	Ms Athena Cains (McInnes Wilson)
Counsel for the Respondent:	Ms J Dempster