Francis and Comcare (Compensation)

[2016] AATA 772

Francis and Comcare (Compensation) [2016] AATA 772 (30 September 2016) 

Division	GENERAL DIVISION
File Numbers	2014/4987; 2014/6015
Re	Thompson Francis
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	30 September 2016
Place	Brisbane

The reviewable decisions of 29 July 2014 and 1 August 2014 are set aside and in substitution it is decided that the applicant is entitled to compensation under ss 14 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the claimed condition of major depressive disorder. The assessment of incapacity payments is remitted to the respondent. For the purposes of s 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) the applicant should be taken to have sustained an injury on 22 November 2012, which was aggravated on or about 5 March 2013. The respondent is ordered to pay the applicant’s costs and disbursements in respect of these proceedings pursuant to s 67(9) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

................................[sgd]........................................

Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – Commonwealth employees – compensation for injuries – compensation for injuries resulting in incapacity – date of injury – injury caused by work – whether reasonable administrative action – whether action administrative – whether carried out in a reasonable manner – respondent ordered to pay the applicant’s costs and disbursements – set aside and substituted

COMPENSATION – Commonwealth employees – compensation for injuries resulting in incapacity – assessment of incapacity payments – set aside and remitted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7, 14, 19, 60, 62, 64, 67
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43

CASES

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Migge v Wormold Brothers Industries Ltd [1972] 2 NSWLR 29
National Australia Bank Ltd v KRDV (2012) 204 FCR 436
Repatriation Commission v Warren (2008) 167 FCR 511

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

30 September 2016

INTRODUCTION

1. Mr Thompson Francis (“the applicant”) seeks compensation under ss 14 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for a mental health condition arising from his employment with the Australian Taxation Office (“ATO”). Comcare (“the respondent”) accepts that the condition of the applicant was contributed to by the applicant’s employment. I have to determine whether the condition was contributed to by “reasonable administrative action” and so is not a compensable injury under the Act.

   PRIOR DETERMINATIONS

   Liability under s 14 of the Act

2. On 8 July 2013 the applicant lodged a claim for workplace anxiety and depression which he stated was caused by workplace bullying and harassment.[1] On 2 October 2013 a determination was made which accepted liability for major depressive disorder, single episode, and generalised anxiety disorder under s 14 of the Act with a date of injury of 22 November 2012.[2] On 29 July 2014 the respondent revoked this determination. The respondent found that the applicant’s injuries were excluded from compensation under s 14 of the Act because they resulted from reasonable administrative action taken in a reasonable manner.[3]

   [1] Exhibit A, T-Documents, T5.

   [2] Exhibit A, T-Documents, T19.

   [3] Exhibit A, T-Documents, T1 at pp. 4-14.

   Incapacity payments under s 19 of the Act

3. On 7 November 2013 a determination was made which provided that the applicant was eligible for incapacity payments arising from his condition between 9 September 2013 and 13 September 2013.[4]

   [4] Exhibit A, T-Documents, T20.

4. On 13 November 2013 a determination was made which provided that the applicant was eligible for incapacity payments between 22 November 2012 to 30 November 2012, 28 May 2013 to 7 June 2013, 11 June 2013 to 19 June 2013 and 20 June 2013 to 16 July 2013.[5]

   [5] Exhibit A, T-Documents, T22.

5. On 20 December 2013, a determination was made which provided that the applicant was eligible for incapacity payments from 20 June 2013 to 16 July 2013, 9 September 2013 to 13 September 2013, 19 September 2013 to 4 October 2013, 8 October 2013 to 29 November 2013, and 1 December 2013 to 24 December 2013.[6]

   [6] Exhibit A, T-Documents, T24.

6. On 28 May 2014 a determination was made which provided that the applicant was entitled to incapacity payments from 1 May 2014 to 30 May 2014.[7]

   [7] Exhibit A, T-Documents, T36.

7. On 9 July 2014 a determination was made which provided that the applicant was entitled to incapacity payments from 12 June 2014 to 30 June 2014.[8]

   [8] Exhibit A, T-Documents, T38.

8. On 1 August 2014 the respondent revoked the determinations of 7 November 2013, 13 November 2013, 20 December 2013, 28 May 2014 and 9 July 2014.[9]

   [9] Exhibit A, T-Documents, T1 at pp. 16-20.

   Reviewable decisions

9. This Tribunal has jurisdiction to review a “reviewable decision” pursuant to s 64(1) of the Act and s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth). The phrase “reviewable decision” is defined under s 60(1) of the Act to include a decision made under s 62 of the Act. A decision made under s 62 of the Act is a decision, on reconsideration, affirming, revoking or varying the initial determination.[10] The applicant has sought a review of the reviewable decisions of the respondent dated 29 July 2014 and 1 August 2014.[11]

   [10] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62(5).

   [11] Exhibit A, T-Documents, T1 at pp. 2-3.

   BACKGROUND

10. The applicant is an engineer who gained his electronics and telecommunication engineering degree in India and has postgraduate qualifications from Australia in information technology (“IT”), and engineering and project management.[12] He has worked for management companies and has prior experience as an IT officer with the Queensland State Government.[13]

    [12] Exhibit E, Witness Statement of T Francis signed 3 September 2015 at p. 1.

    [13] Ibid.

11. In July 2012 Ms Welsh was appointed as the Director of the E-Tax team.[14] An important responsibility was to develop E-Tax software to enable taxpayers with Mac computers to lodge their returns for the 2012/2013 financial year.[15]

    [14] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 1.

    [15] Ibid.

12. In September 2012 the E-Tax Team was structured into three teams. Team three was the Test Team (“the Team”) into which the applicant was placed.[16] He accepted an offer of Test Lead of the E-tax for Mac project on a trial basis for one month.[17]

    [16] Ibid at pp. 2-3.

    [17] Ibid at pp. 2-3.

13. On 16 October 2012 Ms Welsh advised the Team that the applicant would not have a permanent EL1 position but would remain in that team at his substantive APS6 position.[18] On 17 October 2012 the applicant requested to be released into the Business Analyst Team as soon as possible.[19] Ms Welsh advised him that he would not be moved back to the Business Analyst Team.[20] He also requested to be placed on the Corporate Mobility Register.[21] On 18 October 2012 the applicant sent his handover notes for the project to Mr Lewis and Ms Paw who would manage the Test team.[22]

    [18] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at pp. 3-4 and attachment 2; Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 1.

    [19] Exhibit A, T-Documents, T15 at pp. 423-424; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4.

    [20] Exhibit A, T-Documents, T15 at pp. 423-424; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4 and attachment 3.

    [21] Exhibit A, T-Documents, T15 at pp. 423; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4 and attachment 3.

    [22] Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 2 and attachment 2.

14. On 5 November 2012 Ms Paw held a team meeting and subsequently allocated tasks to members of the Team.[23] Each member of the Team had to complete five tests each day. The applicant was allotted responsibility for Mac 10.6. Ms Paw in her statement remarked:[24]

    [23] Ibid at p. 3.

    [24] Ibid.

    Mr Francis was assigned all of Mac 10.6 and managing all the defects. I told the team that when testing commences, Mr Francis would be managing the defects identified and for that reason he was not allocated any test scripts to test so that he would have enough time to manage the defects.

15. Ms Paw remarked that the applicant had to identify any defects to be rectified by the software contractor.[25] He was not tasked with Solution Design testing so that he had more time for managing any defects.

    [25] Ibid at p. 3.

16. On 14 November 2012 Ms Paw emailed all members of the Team to ascertain the number of tests they had completed. She directed them to advise her before they left each day.[26] The applicant had to advise upon defects managed and verified. She also asked the Team members to verify all defects found in versions 10.6 and 10.7 of the software.[27]

    [26] Ibid at p. 4 and attachment 7.

    [27] Ibid at p. 4 and attachment 6.

17. On 15 November 2012 the applicant advised Ms Paw that he had completed three tests with one passing and raised one defect and that he had not managed or verified any of the defects raised by the team.[28] On 16 November 2012 he advised Ms Paw that he had completed three tests with three passing and that he had not managed or verified any defects.[29]

    [28] Ibid at p. 4 and attachment 7.

    [29] Ibid at p. 4 and attachment 8.

18. According to Ms Paw on 16 November 2012 she sent the applicant an email asking him why he had not completed the allocated work and advised him that he was required to complete that work.[30] She claims that he came to her desk and responded with words to the effect of "we'll see about that".[31] She then informed Ms Welsh that the applicant had not been completing the tasks that she had allocated to him.[32]

    [30] Ibid at p. 4.

    [31] Ibid.

    [32] Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 4; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 5.

19. Ms Welsh arranged a meeting with the applicant to discuss the progress of the allocated testing tasks. On 20 November 2012 Ms Welsh sent the applicant, Ms Paw and Mr Lewis an Outlook invitation to a meeting on 21 November 2012 with the subject heading "Discuss testing Status".[33] The applicant accepted this invitation.

    [33] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 6 and attachment 9.

20. In the meantime on 19 November 2012, Ms Paw had sent an email to the applicant to advise him that he should have completed 15 test scripts and managed all current defects by that stage but his results showed he had only executed seven test scripts and had not managed or verified any defects.[34] Ms Paw said that by 23 November 2012 she expected him to have executed 30 test scripts in that week as well as manage all 28 defects which were not actioned. She also indicated that she would want an explanation as to why he was unable to meet the target which had been set for him if he had not met the target by 23 November 2012.[35]

    [34] Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 5 and attachment 9.

    [35] Ibid.

    21 November 2012 meeting

21. On 21 November 2012 a meeting was held with the applicant and Ms Welsh, Ms Paw and Mr Lewis attending. Ms Paw estimated that the meeting went for approximately 30 minutes.[36]

    [36] Ibid at p. 7.

22. Ms Welsh in her statement gives a detailed account of what she said at the meeting.[37] In particular, Ms Welsh asked the applicant why he had not completed the allocated daily tasks and whether there were any issues or problems that were preventing him from completing the tasks in the required timeframes or that could put the project at risk of not being completed on time.[38] The applicant stated that the tasks were very involved and he wanted to be thorough.[39] He did not provide any reason why he was unable to complete the tasks allocated to him within the timeframe.[40]

    [37] Exhibit H, Witness Statement of D Welsh signed 17 March 2015.

    [38] Ibid at p. 6.

    [39] Ibid.

    [40] Ibid at p. 7.

23. There is no issue that Ms Welsh advised the applicant that she had 25 years' experience in the IT industry working with “people like him”. Ms Welsh recounted what she said as follows:[41]

    [41] Ibid at p. 6.

    I recall that I said to Mr Francis that I have worked in the IT industry for over 25 years and in that time I had worked with people like him before. I said I have worked with a whole range of IT professionals including developers, project managers, business analysts and testers, defect managers and technical support people, so I know what these roles require and I have certain expectations of what people at all levels should be able to do. I said that as an APS6 and with his level of experience he should be able to progress these tasks as required.

24. It is unclear whether Ms Welsh actually expanded on what she meant by “people like you” in this much detail at the time. I accept the explanation of Ms Welsh that she was then referring to IT professionals with the applicant's level of experience.[42] However, Mr Lewis agreed when it was put to him that the applicant appeared hurt by the comment “people like you”.[43]

    [42] Transcript of proceedings at p. 108.

    [43] Ibid at p. 96.

25. Following the meeting Ms Welsh sent an email  to the applicant as follows:[44]

    [44] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 7 and attachment 10.

    As discussed this morning, you were allocated 2 tasks early last week. You were asked to do 5 test scripts per day and manage the defect system. You have not completed all of the required test scripts and have done none of the defect management. This has put the project at risk. I have now instructed you to manage the outstanding 39 defects and any other defect raised between now and Monday afternoon. You are required to complete the allocated test scripts. As you have several years' experience in these tasks within in the e-tax team, I believe as an APS6 you should be able to complete the allocated tasks within the required timeframes.

    You will continue to provide a status update to Rupal each afternoon before leaving the office. On Monday afternoon 26 November, you will send me an email confirming that you have completed all of the tasks allocated to you. You will also ensure that all of your work is up to date before you go on leave close of business on Thursday 29 November.

26. Later that day the applicant sent Ms Welsh an email in reply. In that email he remarked that he would like to “highlight the fact that I am a Business Analyst and never been a ‘professional Tester’, even though I have done testing and managed testing and defects during my different roles. Also I have never used a Mac machine in my life and this was the first time testing one, so that contributes to the low testing numbers initially along with the complex and lengthy test scripts”.[45] The email also contained details of his testing progress as well as making the following comments:[46]

    [45] Ibid at attachment 11.

    [46] Ibid.

    …I wasn’t aware that you were reviewing my work and I was supposed to give you a run down of my works and tasks till today.

    …I have followed instructions and done my testing tasks to the best of my ability. I have not knowingly done anything wrong to put the e-tax project at Risk!. I don’t understand why you are trying to victimise me like this and accuse me of putting the project at risk. In fact I have supported and helped the team in what ever way was possible with me. I have even jeopardised my career in supporting e-tax.

    You have also said “You had 25 years experience managing staff like me and you expect me to do my job as an APS6”. I don’t understand what you mean by ‘staff like me’!!

    …I am extremely distressed by these developments this morning and don’t understand what I did wrong to deserve this.

    I have put my heart and soul to the work that I did in this team for the last 4 years and I certainly don’t like to be treated like this. … I certainly don’t like to be insulted like this.

27. On 22 November 2012 the applicant commenced sick leave.[47] On 23 November 2012 Dr K Ratnam certified that the applicant was "suffering from work related stress causing anxiety + depression".[48] That period of sick leave concluded on 30 November 2012. On 3 December 2012 to 18 January 2013 the applicant went on annual leave and returned to work on 18 January 2013.[49]

    [47] Exhibit E, Witness Statement of T Francis signed 3 September 2015 at p. 4.

    [48] Exhibit A, T-Documents, T14 at p. 116.

    [49] Exhibit E, Witness Statement of T Francis signed 3 September 2015 at p. 4.

28. On 7 February 2013 Ms Welsh advised the applicant that she had approved his request to be placed on the Corporate Mobility Register. Ms Welsh advised the applicant that she would consider a release date after 30 June 2013 to meet the operational requirements of the section.[50]

    [50] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 8 and attachment 12.

    5 March 2013 meeting

29. On 22 February 2013 Ms Paw sent the applicant an Outlook invitation to a meeting scheduled for 5 March 2013. The purpose of the meeting was to provide feedback on his performance in the form of a mid-year review.[51] On that date the applicant replied to that invitation by stating that his mid-year discussions would need to be with Ms Brady because his Performance Development Agreement was approved by her.[52] Ms Brady advised the applicant that as he had two different supervisors during the relevant period it was appropriate that both of his supervisors provide feedback.[53]

    [51] Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 7 and attachment 15.

    [52] Ibid at p. 7 and attachment 15.

    [53] Ibid at attachment 15.

30. At the meeting Ms Paw provided feedback that the applicant had previously not completed tasks which she had allocated to him and that she hoped that would change going forward.[54] Ms Paw estimated that the meeting went for approximately 15 minutes.[55]

    [54] Ibid at pp. 7-8.

    [55] Ibid at p. 7.

31. After the meeting the applicant emailed Ms Brady and advised that he did not accept or approve of the comments that Ms Paw had made about his performance. He said that the comments were false and if they were to be included he would "raise it again and address the issue to the next level”.[56] Ms Paw agreed to amend her comments.

    [56] Ibid at attachment 17.

32. On 13 March 2013 the applicant made an Incident Notification Report to claim bullying and harassment during the meetings on 21 November 2012 and 5 March 2013.[57]

    [57] Exhibit A, T-Documents, T14 at pp. 114-115.

    CLAIM FORM

33. The applicant lodged a claim for workers’ compensation on 28 May 2013 in relation to his mental state.[58] The applicant nominated the date of 22 November 2012 as being the date when he was injured or when he noticed that he was ill.[59] In the form the applicant stated that he first sought treatment for the condition on 22 November 2012 at the Acmed Medical Centre. However, the medical certificate in evidence is dated 23 November 2012.[60]

    [58] Exhibit A, T-Documents, T3 at p. 24.

    [59] Exhibit A, T-Documents, T5 at p. 36.

    [60] Exhibit A, T-Documents, T14 at p. 116.

    LEGISLATION

34.     Section 14(1) of the Act provides that the respondent is liable to pay the applicant compensation in respect of an injury suffered by him if it results in death, incapacity for work, or impairment.

35.     Section 5A(1) of the Act provides that "injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

1. Section 5A(2) of the 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;

   (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.

37.     Section 5B(1) of the Act provides that “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.

38.     Subsection 5B(2) of the Act provides that the following matters may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment:

(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;

(d) any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

1. The term “significant degree” is defined in s 5B(3) of the Act as meaning “a degree that is substantially more than material”.

   CONSIDERATION

   Ailments of the applicant

2. The respondent accepts that the applicant suffers from a psychiatric condition of major depressive disorder, single episode and generalised anxiety disorder. While there are differing diagnoses of the conditions of the applicant, the predominant medical opinion is that the applicant has a psychiatric condition. There is medical opinion to support this concession of the respondent which I consider to have been properly made. The applicant attended an appointment with Mr Gerhardt, clinical psychologist, on 2 July 2013. In his report of 1 August 2013, Mr Gerhardt expressed his opinion that when he saw the applicant he met the criteria under DSM-IV-TR for a mixed anxiety depressive disorder.[61]

   [61] Exhibit A, T-Documents, T9.

3. Dr Takyar, consultant psychiatrist, in his report of 30 August 2013, which was commissioned by the respondent has diagnosed the applicant as having a major depressive disorder and generalised anxiety disorder using diagnostic criteria from DSM V.[62] I rely upon that report of Dr Takyar to find that the applicant suffers from major depressive disorder and generalised anxiety disorder which are ailments within the meaning of disease in s 5B of the Act.

   [62] Exhibit A, T-Documents, T18 at p. 511.

   Ailments were contributed to in a significant degree by the applicant’s employment

4. The respondent accepts that the condition of the applicant was contributed to by the applicant’s employment. I consider that the predominant medical opinion supports the concession of the respondent. I place reliance upon the report of Dr Takyar, consultant psychiatrist, who reported to the respondent that the applicant began to suffer from major depressive disorder and generalised anxiety disorder after the initial incident in November 2012 which accelerated after the second incident in March 2013.[63] Dr Takyar was of the opinion that the applicant had a change in his mental state after the first event after which he commenced antidepressant medication.[64] I rely upon that report of Dr Takyar to find that the major depressive disorder and generalised anxiety disorder of the applicant was contributed to, in a significant degree, by his employment with the Commonwealth and specifically was contributed to by the meetings of 21 November 2012 and 5 March 2013.

   [63] Exhibit A, T-Documents, T18 at pp. 509-510.

   [64] Ibid at p. 510.

5. The evidence before me is that the “precipitating cause”[65] for the condition of the applicant was the meeting of 21 November 2012. Mr Gerhardt considered that there was a causal link between the condition of the applicant and the events in his workplace.[66] This is confirmed by Dr Takyar’s report of 30 August 2013 in which he stated that the applicant began to suffer clinically identifiable symptoms soon after the initial incident in November 2012.[67] Dr Takyar reported that the condition accelerated after the second incident in March 2013. Dr Takyar has reported that the two incidents appear to be the sole cause of the applicant’s condition.[68] Dr Takyar (as did Mr Gerhardt) also reported that the applicant had no previous history of psychiatric illness prior to the episodes.[69] The condition of the applicant persisted for some time after the first meeting. Professor Macleod reported on 21 March 2014 that he had concerns as to whether a return to work could be successfully achieved.[70] Having regard to this evidence I find that the major depressive disorder ailment of the applicant was contributed to, to a significant degree, by the applicant’s employment by the Commonwealth.

   [65] Cf Migge v Wormold Brothers Industries Ltd [1972] 2 NSWLR 29 at 48 per Mason J.A.

   [66] Exhibit A, T-Documents, T10 at p. 82.

   [67] Exhibit A, T-Documents, T18 at p. 509.

   [68] Ibid p. 512.

   [69] Exhibit A, T-Documents, T10 at p. 82; T18 at p. 511.

   [70] Exhibit A, T-Documents, T30 at p. 570.

6. I find that the contribution is substantially more than material in terms of s 5B(3) of the Act as there is no evidence of any other cause of the conditions of the applicant.

   Whether the meetings were reasonable administrative action

7. The respondent has contended that the meeting of 21 November 2012 came within the reasonable administrative action exclusion in s 5A(1) of the Act.

8. In final submissions the respondent has drawn attention to the fact that s 5A(2) is not intended as an exhaustive definition of “administrative action”. This submission is undoubtedly correct in view of the presence of the words “taken to include” in that provision. However, I will consider the provisions which the respondent referred to in its statement of issues, facts and contentions of the respondent, and which fairly informed the issues to be considered at the hearing of the application.[71]

   [71] Repatriation Commission v Warren (2008) 167 FCR 511 at 532 per Logan J.

9. The respondent in its statement of issues, facts and contentions contends that the meeting is properly characterised as a reasonable appraisal of the applicant’s performance within the meaning of s 5A(2)(a) of the Act. There was a contention that the meeting was reasonable counselling action taken in respect of the applicant’s employment within the meaning of s 5A(2)(b) of the Act. There is an alternative contention that the meeting was something reasonably done in connection with reasonable administrative or counselling action within the meaning of s 5A(2)(e) of the Act. Having regard to the terms of s 5A(2)(e) of the Act I will consider whether the meeting was something reasonably done in connection with an action mentioned in paragraphs (a) and (b) as there is no evidence before me to suggest that paragraphs (c) and (d) are of relevance.

10. Having reviewed the three volumes of Tribunal documents consisting of 1035 pages in total as well as the documents which are exhibits (including statements), I consider that a crucial evidence of the purpose of the meeting is to be found in the reconsideration request document that was prepared for the respondent on 21 March 2014 by Mr Richard Wood, IT Program Manager of the Australian Taxation Office. In that document Mr Wood made the following remarks in respect of the meeting of 21 November 2013:[72]

    Please note that the meeting held on 21 November 2012 was a Project Management Update Meeting and this did not fall within policies and procedures relating to Underperformance, nor was this unreasonable management practice.

    This meeting was completely separate from these processes. An underperformance path was therefore not considered in establishing the meeting held on 21 November 2012, nor was it ever communicated to Mr Francis as such, nor was the meeting conducted as such.

    In summary, the 21 November 2012 meeting was simply part of the normal BAU practice to effectively manage Tier 2 projects and obtain regular, accurate and timely updates from project employees regarding the project status of work they were performing.

    The ATO reiterate that this meeting did not include formal counselling, informal appraisal of Mr Francis’ work performance, or responding to poor performance allegations. This BAU meeting was to ensure the critical status of the project.

    [72] Exhibit A, T-Documents, T31 at p. 586.

11. I give the reconsideration request document some weight as it is the report of a senior officer which contains the remarks that it was “compiled in conjunction” with Mr Wood, Ms Welsh and Ms Harvey.[73] In giving evidence Ms Welsh was taken to the last quoted paragraph of this document and she did not demur from what was written in the document but stated that she did not assist in drafting the reconsideration request. It is fair to say that during the hearing the respondent referred to the reconsideration request document as merely containing a statement of opinion by Mr Wood. Certainly, at the hearing Ms Welsh stated that the reconsideration request document contained Mr Wood’s “opinion” or “view”. However, the reconsideration request was a document that the ATO provided to the respondent on 26 March 2014. It would be unsafe and unfair for me to disregard the observations of Mr Wood who was not called as a witness by the respondent. The conclusions he expressed in the reconsideration request document were not therefore directly challenged by the respondent.

    [73] Ibid at p. 587.

    Whether the meeting amounted to a reasonable appraisal of the applicant’s performance

12. In final submissions the respondent stated that the meeting amounted to a reasonable appraisal of the applicant’s performance within the meaning of s 5A(2)(a) of the Act on the basis that the applicant was asked to perform testing work and the purpose of the meeting was to assess or evaluate how he was performing those tasks. I do not accept this submission because Ms Welsh in her statement of 17 March 2015 remarked that the meeting was not in any way conducted as a performance review.[74] Certainly, Ms Welsh had earlier advised Mr Wood that the meeting was not concerned with underperformance.[75]

    [74] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 6.

    [75] Exhibit A, T-Documents, T31 at p. 586.

13. The reconsideration request document contains statements that the meeting of 21 November 2012 did not “fall within policies and procedures relating to Underperformance… An underperformance path was therefore not considered in establishing the meeting held on 21 November 2012, nor was it ever communicated to Mr Francis as such, nor was the meeting conducted as such” and that the meeting was not an “informal appraisal of Mr Francis’ work performance”.[76] Having regard to these statements I do not consider that there is any basis for a conclusion that the meeting could be found to be a reasonable appraisal of the applicant’s performance for the purposes of s 5A(2)(a) of the Act.

    [76] Ibid.

    Whether the meeting amounted to reasonable counselling action

14. In final submissions the respondent submitted “that in the alternative, the meeting can be characterised as an informal counselling action taken in respect of the applicant’s employment within the meaning of s 5A(2)(b)”. I do not accept this submission having regard to the statement of Mr Wood in the reconsideration request document that the meeting was not an “informal appraisal of Mr Francis’ work performance”.[77]

    Whether the meeting was something reasonably done in connection with a reasonable appraisal or counselling action

    [77] Ibid.

15. I do not consider that there is any basis for a conclusion that the meeting was something reasonably done in connection with reasonable appraisal or counselling action within the meaning of s 5A(2)(e) of the Act. This is because as earlier indicated the reconsideration request document indicated that “this meeting did not include formal counselling, informal appraisal of Mr Francis’ work performance, or responding to poor performance allegations”.[78]

    [78] Ibid.

16. In considering the terms of s 5A(2)(e) of the Act, the meeting cannot be regarded as anything reasonable done in connection with a reasonable appraisal or counselling action. There is no basis for concluding that the meeting was “reasonable” when the only information that the applicant had received before the meeting was the Outlook invitation with the subject of the email referred to “Discuss testing Status”.[79] There was no indication from that invitation that the meeting could be regarded as being about “human resource management” or any other form of “administrative action” within the meaning of s 5A(2)(e) of the Act. A copy of the applicant’s acceptance of that meeting invitation was provided in evidence which indicates that there was no body of explanatory text which accompanied the invitation. There is no cogent evidence that the applicant was provided or had received any notice of what would be discussed at the meeting. It is fair to say that the applicant had been under lengthy cross-examination and appreciated that the meeting was to discuss the status of testing but did not concede that he was aware that a purpose of the meeting was to discuss his performance.

    [79] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at attachment 9.

    Administrative action

17. For the sake of completeness I should mention that I am not satisfied that there is a basis for concluding that the meeting of 21 November 2012 was “administrative action” or “reasonable administrative action” within the meaning of s 5A(1) of the Act. One objective of the amending legislation was set out in the explanatory memorandum which was cited in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 by Gray J at 467:

    A further objective, through the exclusionary provisions, was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation.

18. There is certainly no evidence that there was any human resource management action that was the subject of the meeting. There is also no other basis for concluding that the meeting was “administrative action” within the meaning. Certainly, Mr Wood in remarking that the meeting was not “unreasonable management practice” was not indicating that the meeting was reasonable administrative action.[80]

    [80] Exhibit A, T-Documents, T31 at p. 587.

    Whether administrative action was taken in a reasonable manner

19. I am not satisfied that the meeting of 21 November 2012 was reasonable administration action which contributed to his injury. Even if reasonable administrative action contributed to his injury, I am not satisfied that such action was taken in a reasonable manner.

20. There is no cogent evidence that the applicant was aware of what would be the subject of discussion at the meeting of 21 November 2012 even though the applicant was extensively cross-examined on this issue by the respondent. For example, there was no agenda attached to the Outlook invitation. I consider that the decision to have the meeting was not taken in a reasonable manner because it occurred without any agenda being provided to the applicant before the meeting.[81] 

    [81] Cf National Australia Bank Ltd v KRDV (2012) 204 FCR 436 at 445-446 per Cowdroy J.

21. Another matter of concern is that during the meeting the expression “managing people like you” was directed to the applicant.[82] Mr Lewis in giving evidence agreed that the applicant appeared to have a strong reaction to that remark.[83] Certainly, even if there had been a “reasonable administrative action… in respect of the employee’s employment”, which I do not believe to have been the case, that action was not “taken in a reasonable manner” by making such a comment to the applicant. Certainly, the applicant was concerned by the comment as he indicated in the email that he sent after the meeting in which he stated he was insulted.[84]

    [82] Exhibit E, Statement of T Francis signed 3 September 2015 at p. 3; Exhibit H, Statement of D Welsh signed 17 March 2015 at p. 6.

    [83] Transcript of proceedings, p. 96.

    [84] Exhibit A, T-Documents, T15 at p. 358; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at attachment 11.

22. The respondent has contended that it was necessary to call a meeting to discuss the progress of the testing tasks that were allocated to the applicant in circumstances where he had not been completing the tasks in the required timeframe and had not provided any explanation about why he was unable to do so. However, the applicant had earlier on 19 November 2012 been put on notice that he was required to have completed those tasks by 23 November 2012 and that he would have to provide an explanation if he was unable to complete these tasks within that timeframe.[85] I do not accept that it was reasonable for him to be asked for such an explanation before that “deadline” of 23 November 2012.

    [85] Exhibit F, Witness Statement of R Paw signed 16 March 2015 at attachment 9.

23. The respondent contends that the applicant was not prevented from having an employee representative attend the meeting had he chosen to do so. However, the invitation to the applicant did not indicate it was advisable for him to bring a representative.

    Whether the meeting of 5 March 2013 was reasonable administrative action

24. Dr Takyar was of the opinion that the condition of the applicant was accelerated by the performance review meeting on 5 March 2013.[86] The respondent in their final submissions did not make any submissions on whether the meeting of 5 March 2013 was reasonable administrative action. Instead they contended that “no meaningful attention was devoted to this meeting in the course of the hearing and thereafter in the applicant’s submissions. The focus of the hearing was solely upon the meeting of 21 November 2012”. While this observation is correct the Tribunal has to consider the evidence before it and decide whether the meeting of 5 March 2013 was reasonable administrative action.

    [86] Exhibit A, T-Documents, T18 at p. 510.

25. For the sake of completeness I should record that I do not consider that the meeting could be regarded as a reasonable appraisal of the applicant's performance for the purposes of s 5A(2)(a) of the Act. Nor is it a reasonable counselling action taken in respect of the applicant's employment for the purposes of s 5A(2)(b) of the Act, or something reasonably done in connection with reasonable appraisal or counselling action for the purposes of s 5A(2)(e) of the Act.

26. On 18 November 2013, sometime prior to the second meeting, Dr Nicholas Jentikoff had recommended to the respondent that the applicant was not fit to return to his substantive workplace and could not work under the same director and should be permanently redeployed.[87] Dr Jentikoff has emphasised the need for the applicant to work in an alternative area multiple times in his report.[88] Having the meeting meant that the applicant was required to have discussions with that supervisor. This was in direct contravention of this recommendation and no medical clearance appears to have been sought before the meeting was held. In these circumstances, having the meeting was not “reasonable” in terms of s 5A(2)(a), (b) or (e) of the Act. Nor could the meeting be regarded as being “taken in a reasonable manner” under s 5A(1) of the Act.

    [87] Exhibit A, T-Documents, T23 at pp. 543-544.

    [88] Ibid.

    CONCLUSION

1. At the outset of the hearing the respondent submitted that if the applicant was successful (as is the case here) the appropriate decision to make would be to set aside the decision which determined that liability was excluded and remit the assessment of incapacity payments to the respondent to determine the periods of incapacity after consideration of medical certificates. This submission is proper and reasonable as I consider that the applicant's condition has resulted in incapacity for work resulting in an entitlement to compensation under s 19 of the Act. I accept the submission of the respondent that a remittal would allow for an examination of the medical certificates.

2. The applicant in closing submissions sought costs. This was not opposed by the respondent in their closing submissions.

   DECISION

3. In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions of 29 July 2014 and 1 August 2014 are set aside and in substitution it is decided that the applicant is entitled to compensation under ss 14 and 19 of the Act for the claimed condition of major depressive disorder. The assessment of incapacity payments is remitted to the respondent. For the purposes of s 7(4) of the Act the applicant should be taken to have sustained an injury on 22 November 2012, which was aggravated on or about 5 March 2013. The respondent is ordered to pay the applicant’s costs and disbursements in respect of these proceedings pursuant to s 67(9) of the Act.

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

...........................[sgd].............................................

Associate

Dated 30 September 2016

Date(s) of hearing	20 January 2016; 21 January 2016
Date final submissions received	8 April 2016
Counsel for the Applicant	Mr S Richardson
Solicitors for the Applicant	Ms C Shannon-Dear, Shine Lawyers
Counsel for the Respondent	Mr C Clark
Solicitors for the Respondent	Ms M Gostylla, Australian Government Solicitor