Gadzikwa and Comcare (Compensation)

[2023] AATA 951

Gadzikwa and Comcare (Compensation) [2023] AATA 951 (28 April 2023)

Division:GENERAL DIVISION

File Number:          2018/2099

Re:Tawanda Gadzikwa

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member.

Date: 28 April 2023

Place:Melbourne

The Tribunal refuses to grant an extension of time in accordance with section 62(3)(b) of the SRC Act. Accordingly, the reviewable decision is affirmed.

.

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

R Cameron, Senior Member.

Catchwords

COMPENSATION – extension of time to lodge reconsideration request – multiple extensions of time granted – whether reasonable explanation for delay – prospects of success – reasonable administrative action – extension of time refused – decision affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Cases

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Duong v Australian Postal Corporation (2005) 41 AAR 288
Emery and Comcare [2017] AATA 2281
Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878
Gadzwika v Commonwealth of Australia (Department of Human Services) [2018] FWCFB 7354
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Mason and John Holland Pty Ltd (2018) 74 AAR 320

REASONS FOR DECISION

R Cameron, Senior Member

28 April 2023

INTRODUCTION

1. The applicant seeks review of a decision made by a delegate of the respondent on 14 February 2018[1] (“the reviewable decision”). The reviewable decision denied the applicant’s request for an extension of time to lodge a reconsideration request in accordance with section 62(3) of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”) with respect to a claim that he had made for a psychological injury.[2]

   [1] Document T 30 of the T documents.

   [2] The Workers’ Compensation Claim Form signed by the applicant and dated 16 February 2017, is document T 4 of the T documents.

2. For two and a half days the guns of legal battle blazed away in the hearing of this application. It took far too long and is particularly unfair on the applicant, who is clearly of limited resources.

3. The respondent is supposed to be a model litigant. In this case it behaved anything but. It also did not adhere to its obligations under section 33(1AB) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). Lest it needs to be repeated, that section imposes an obligation on a party to a proceeding before the Tribunal, and any person representing such party, to use their best endeavours to assist the tribunal to fulfil the objective in section 2A of that Act. Section 2A of the AAT Act specifies that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is, amongst other things, fair, just, economical, informal and quick; and is proportionate to the importance and complexity of the matter. That obligation was violated in this application. It went on too long and there was too much documentation simply dumped upon the Tribunal for its consideration.

   THE ISSUES FOR DETERMINATION BY THE TRIBUNAL.

4. The parties are in agreement with respect to the issues for determination by the Tribunal. They are as follows:

   (a)whether the reviewable decision, which denied the applicant’s request for an extension of time, is correct and preferable; and therefore, should be affirmed; or alternatively

   (b)whether an extension of time should be granted in accordance with section 62(3)(b) of the SRC Act and the request for reconsideration remitted to the respondent for a reconsideration of the determination made in the reviewable decision.

   SOME ESSENTIAL BACKGROUND FACTS.

5. The applicant lodged a Workers’ Compensation Claim form with the respondent on 16 February 2017.[3] The claimed condition was described as a “Psychological injury”. In the claim form the applicant was requested to state what happened and how he was injured. His response was, “I have been injured through unreasonable behaviour that I have been subjected to by line management, senior management and human resources”.

   [3] Document T 4 of the T documents.

6. An authorised delegate of the respondent on 4 August 2017 made a determination that it was not liable to pay compensation in respect of the applicant’s claimed injury in accordance with section 14(1) of the SRC Act.[4]

   [4] The determination is document T 15 of the T documents.

7. By an email of 6 September 2017, the applicant sought an extension until 31 October 2017 to lodge a request for reconsideration.[5] The email explained why the applicant sought an extension of time. These reasons were that he was seeking legal advice. Additionally, he stated he needed to attend to psychological and health matters. The applicant also noted in a carefully crafted portion of that email that the deadline for lodging a reconsideration request was Saturday, 9 September. He therefore requested that because of this deadline, a decision with respect to his request for an extension of time be communicated to him by the close of business on Friday, 8 September. Also, at the conclusion of the email he sought appropriate contact details for the purposes of making what he described as “an official complaint” concerning Dr Grant’s conduct during his section 57 assessment.

   [5] The email is at pages 386 of the T documents and forms part of T 22.

8. The Tribunal should observe at the outset that this email of 6 September 2017 seeking an extension of time for the applicant to lodge his reconsideration application reveals several things. Firstly, that the applicant was acutely alive to the importance of meeting strict deadlines imposed by the SRC Act. Secondly, it demonstrated that he had some knowledge of the operation of the SRC Act. Thirdly, it revealed, as was evident when the applicant was in the witness box, how acutely alive the applicant was and is to advancing and protecting his interests, whatever they may be. He is someone who has a highly refined capacity to act in his best interests at all times. He is a most intelligent man.

9. The extension of time sought by the applicant to lodge a request for reconsideration to 31 October 2017 was granted by a delegate of the respondent on 8 September 2017.[6]

   [6] Document T 16 of the T documents.

10. On 9 September 2017 the applicant lodged a signed “Reconsideration Request” with the respondent.[7]

    [7] Document T 17 of the T documents.

11. By an email dated 10 September 2017 headed “Reconsideration Request”, the applicant provided to the respondent’s delegate comprehensive reasons explaining why he was seeking a reconsideration of the determination denying liability for his claim, made on 4 August 2017.[8]

    [8] Document T 18 of the T documents.

12. Once again, it is worthwhile briefly examining the subject matter canvassed in the applicant’s email to the respondent’s delegate of 10 September 2017. The email was drafted with considerable skill, care and attention to detail. It was expressed in language that advanced the applicant’s case to the maximum possible extent, and where appropriate, took steps to make it clear to the reader that he was reserving his rights at all times. The email was divided up into several subject headings. Those subject headings were “Psychiatric assessment”, “Denial of medical treatment”, “Scathing unjustified performance appraisal”, “Carer Flexible Working Arrangements”, “Public discussion of work performance", “Disciplinary letters”, “Refusal to accept medical evidence”, “Failure to promptly investigate claims of bullying and harassment”, “Termination of role in Melbourne”, “Refusal to accept certificate of capacity” (in addition to details accompanied by a “timeline of events”), “Informing me the department’s legal counsel has the authority to instruct me during proceedings with the Fair Work Commission”, (also accompanied by a detailed “timeline of events”), “Coercion” and “Concerns”.[9]

    [9] The catalogue of complaints included in the email of 10 September 2017, was similar to the "other unreasonable management practices" between 2014 and 2016 identified in paragraph 10 of the applicant's witness statement of 28 February 2022.

13. On 22 September 2017, a Senior Case Manager of Allianz, which was managing the claim on behalf of the respondent, wrote to the applicant on behalf of the authorised delegate acknowledging receipt of the applicant’s reconsideration request and the information accompanying it. The letter also advised the applicant that the reconsideration was likely to be completed within 30 calendar days from 11 September 2017.

14. Somewhat surprisingly, on 25 September 2017 the applicant telephoned Allianz and advised that he wished to withdraw his present request for reconsideration and re-lodge the request closer to the 31 October 2017 date to which he was granted an extension.[10]

    [10] Document T21 of T documents.

15. By an email on 26 October 2017 sent by the applicant to the delegate’s representative, he sought a further extension of time to lodge his reconsideration application until 30 November 2017.[11] Once again, this was a carefully drafted email by him. It asked a series of probing questions of the recipient. Several issues were canvassed. He asked why the delegate’s representative declined to provide him with a statement from one Ms Simmonds, which he considered Comcare was obliged to provide him. Additionally, he requested an electronic version of all the information that was on his file pertaining to his Comcare claim. He then asked why Ms Simmonds provided two statements, one on 8 June 2017 and the other on 23 June 2017, as well as identifying what he saw as irregularities in the making of such statements. He also referred to advice he had received from the Department that he would only have two hours to access work emails and files to support his reconsideration claim. The applicant stated that two hours would not be enough for him to access such information and asked whether Allianz would be able to assist in the extraction of such information. Concerns were expressed by him about what he said was a substantial hindrance of his ability to prepare his reconsideration application including Allianz denying access that they were obliged to provide him, and a continuing inability to access his work emails and files since 25 September 2017. He stated that such access had not been provided despite numerous attempts on his part to get it.

    [11] T 23 at page 391-2 of the T Docs.

16. A further extension of time to enable the applicant to lodge his reconsideration application to 30 November 2017 was granted by Allianz on 27 October 2017.[12]

    [12] T 23 at pages 390-1 of the T documents.

17. Several emails passed between the applicant and the Department from 26 October 2017 and 29 November 2017.[13] Much was canvassed in these emails. In particular there were attempts made to enable the applicant to gain access to his work emails and electronic files. He stated in those emails words to the effect that he needed such access to support and advance his reconsideration application. He voiced his concerns over the inability to arrange a definite time to be given access to his work emails and electronic files together with the fact that the Department had nominated different people for him to make contact with from time to time, and/or such persons were unresponsive to his calls when he left messages.

    [13] Document 3.2 of the T Docs.

18. On 28 November 2017 the applicant sought by telephone a further extension from Allianz to lodge his reconsideration application. He also sought that Allianz appoint a different officer to manage his claim. This telephone request was followed by yet another comparatively lengthy and carefully drafted email to Allianz on 30 November 2017.[14] The contents of that email are referred to in their entirety for the full force and effect. That email canvassed questions of “Return to work”, “Access to work documents”, “Access to assessment recordings”, (with respect to this matter the applicant expressed the opinion that a medical specialist retained by the respondent had reached certain perceptions which were not supported by notes or from the body of such reports.), “Integrity of MLCOA”, (this is the organisation that procures independent medical specialists including, in this case, Dr Grant who examined the applicant), “Freedom of information request”, “Redactions” (in that section, amongst other things, the applicant stated that Allianz had a penchant for redacting information), “Missing statement of claims” and “Refusal to supply essential information”.

    [14] T 23 at pages 388-90 of the T documents.

19. By way of an email dated 4 December 2017, Allianz informed the applicant that he had been granted a third extension of time to lodge his reconsideration request until the close of business on 30 December 2017.[15]

    [15] T 24 at page 395 of the T documents.

20. Also on 4 December 2017, Allianz printed all documents on the applicant’s claim file and sent them to him by post.

21. On 31 January 2018 the applicant left a telephone message with an officer of Allianz seeking to urgently discuss with her the contents of the email that she had forwarded to him on 4 December 2017, which granted an extension of time to lodge his reconsideration request until the close of business on 30 December 2017.[16]

    [16] T 26 at pages 412-3 of the T documents.

22. The applicant made a request under the Freedom of Information Act seeking access to all documents concerning his claim with the respondent or 6 February 2018.

23. On 6 February 2018 an officer of Allianz sent an email to the Applicant.[17] The contents of that email are referred to in their entirety for their full force and effect. It reiterated that the applicant had previously been advised in writing that an extension of time had been granted to submit his reconsideration application by 30 December 2017. It confirmed that the applicant was aware of the email and the date by which he needed to respond prior to that time. Further, it was confirmed that the deadline had lapsed, and that Allianz was unable to proceed in formally actioning any further reviews with respect to his claim which had been rejected. It confirmed, as agreed, that the applicant was to provide Allianz with an email containing details of the reasons why he needed a further extension of time to be granted.

    [17] T 26 at pages419-20 of the T documents.

24. Also, on 6 February 2018 at 12:52pm the applicant sent an email to an officer of Allianz in which he alleged that the conduct of two named officers of that company had been corrupt and that they had worked in collusion with the Department to undermine his Comcare application. He requested that both individuals cease having any further involvement in his application apart from providing evidence to Freedom of Information (FOI) and any investigations. He stated he was happy to be provided with what he described as an “escalation point outside Allianz”.[18]

    [18] T 26 at page 410 of the T documents.

25. That email appears to have been passed on to Mr Wigham the Manager Comcare Operations, Workers’ Compensation, Allianz. Mr Wigham very promptly, at 1:33pm on the same day, responded to the applicant’s email of 6 February 2018.[19] He stated, amongst other things, that he was the appropriate contact for the escalated complaint that the applicant had made to Allianz. It is worthwhile reproducing directly from that email several passages in direct speech. He stated:

    I have been working with the claims group in recent times surrounding your numerous enquiries and concerns surrounding the process and management of your rejected claim. I can confirm the details provided to you are both accurate and legally appropriate.

    Your allegation of corruption is a very serious one and to investigate this I will need a statement from you to corroborate your position. At no time has any information, advice or assistance provided to you been anything less than appropriate and if you wish for this matter to be reviewed you will need to provide clear evidence of the alleged corruption.

    [19] T 27 at page 421-2 of the T documents.

26. On 6 February 2018 at 3:11 pm, the applicant sent a further detailed email to Mr Wigham.[20] The email once again was drafted with considerable skill and care and in extremely strong terms. It sought an extension of time to lodge his reconsideration application to 31 March 2018. The email contained some extremely serious allegations of misconduct against Allianz, the Department and Comcare. The email was carefully broken up into separate subject headings.

    [20] T 29 at pages 434-5 of the T documents.

27. The first subject heading in the email of 6 February 2018 was “Access to work documents”. In that section, amongst other things, he outlined what he said were his struggles in obtaining access to his workplace records which he stated were essential evidence in advancing his reconsideration application.

28. The second subject heading in the email of 6 February 2018 was “Code of Conduct Investigation”. He stated that he was convinced that such investigation was intended to coerce him into accepting a settlement offer that had resulted in the further deterioration of his health.

29. The third subject heading in the email of 6 February 2018 was “Return to work”.

30. The fourth subject heading in the email of 6 February 2018 was “Access to assessment recordings”. He repeated that some perceptions of the specialist (Dr Grant) did not appear to be supported by the notes, or what was recorded in the body of his report. He stated this was essential to his reconsideration application.

31. The fifth subject heading in the email of 6 February 2018 was “Freedom of information request”. Very serious accusations of misconduct were levelled in this paragraph. Amongst other things, the applicant stated that it was apparent that efforts had been made for him not to get access to information that may assist with the reconsideration. He also stated that his claims of “corruption and collusion” would be substantiated following access to FOI documentation.

32. The Tribunal should observe that the applicant in his evidence in chief did not address, or more accurately, provide particulars of his allegations of “corruption and collusion” on the part of either the respondent or its claims agent Allianz. He was specifically asked in cross-examination by counsel for the respondent what the basis was for the corruption allegations. Despite several opportunities to do so, he failed to provide any particulars in support of such allegations.[21] It does not reflect well on him.

    [21] In particular, the passage from cross-examination contained at pages 55 to 61 of the transcript are referred to.

33. The final subject heading in the email of 6 February 2018 was “Redactions”. He repeated his allegation that someone at Allianz had a “penchant for redacting information”. It was stated that understanding why and for whom information had been masked would expose the nature in which his claim had been handled.

34. It appears that there was no response from Allianz to this email. Certainly, no response was contained in the T documents and evidence before the Tribunal.

35. Subsequently, as noted on 14 February 2018 the reviewable decision was made denying the applicant’s request for a further extension of time to lodge his reconsideration application until 31 March 2018.[22]

    [22] T30 of the T documents.

    RELEVANT LEGAL PRINCIPLES.

36. The parties agree about the applicable legal principles or test that has to be applied by the Tribunal with respect to the grant of an extension of time to make a reconsideration application.[23]

    [23] Paragraphs 4.1 and 4.2 of the Respondent's Statement of Facts, Issues and Contentions dated 5 December 2018 and paragraphs 4.1 and 4.2 of the Applicant’s Statement of Facts, Issues and Contentions dated 28 February 2022 are referred to.

37. These principles were identified in several decisions of the Federal Court of Australia. Generally, they are accepted to have been derived from the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment.[24] An example of the application of such principles to an application such as an extension of time to lodge a reconsideration application under the SRC Act is found in Duong v Australian Postal Corporation.[25] The relevant considerations are as follows:

    a)Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show “an acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

    b)Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, continued to make the decision maker aware that he contests the finality of the decision (who has not “rested on his rights”) and a case where the decision-maker was allowed to believe the matter was finally concluded.

    c)Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

    d)However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or established practices is likely to prove fatal to the application.

    e)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

    f)Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the exercise of the court’s discretion.

    CONSIDERATION.

    [24] (1984) 3 FCR 344 (‘Hunter Valley’).

    [25] (2005) 41 AAR 288 at [17].

    Explanation for the delay.

1. The applicant relies upon several grounds to explain why he did not lodge his application for reconsideration within the deadline that had been imposed.

2. Firstly, his evidence was that he was in poor mental health. He gave evidence to this effect on several occasions.[26]

   [26] Paragraph 14 of his witness statement of 28 February 2022 was referred to. Evidence to a similar effect was given in his evidence in chief which is found at page 14 of the transcript. In cross-examination, by way of example the applicant stated he was in bad health at the relevant time (Transcript page 101 lines 41-42.)

3. The Tribunal is not persuaded that the applicant’s poor mental health affected him to such a degree that he was completely unable to lodge with the respondent and/or its claims manager Allianz a duly completed and effective application for reconsideration.

4. There are several reasons for this. Firstly, the Tribunal has referred in some detail to several emails that the applicant sent to Allianz. As noted, they were carefully drafted, were very persuasive and left no stone unturned in advancing the applicant’s case. They were clearly designed to leave the recipient in absolutely no doubt about where the applicant was coming from. On no less than three occasions, the applicant wrote well-worded emails to the respondent seeking an extension of time within which to lodge his reconsideration application. They did not bear the hallmarks of someone whose mental health was so adversely affected that they were unable to lodge an application for an extension of time to make a reconsideration application.

5. Further, whilst the applicant gave evidence that during the relevant time he was experiencing poor mental health, that evidence tellingly did not go so far as to say his poor mental health affected him to such an extent that he was simply unable to either write an email or take other steps to seek an extension of time to make a reconsideration application.

6. The medical evidence indicates that these emails were sent whilst the applicant was suffering from some level of mental illness. Yet he was still able to acquit himself with a high level of acuity. The Tribunal is not satisfied that this capacity had diminished or had otherwise suffered in the latter part of 2017 or early 2018 so as to totally prevent him from making a proper reconsideration request.

7. Reference should be made to two medical reports that were in evidence before the Tribunal concerning the applicant’s mental health prepared by experienced Consultant Psychiatrists.

8. There was a report from Associate Professor Sahoo of 23 July 2018.[27] He made a diagnosis of an adjustment disorder with anxiety symptoms in near remission. He also opined that the applicant was receiving appropriate treatment, since he appeared to be in near remission. Associate Professor Sahoo expressed the opinion that the applicant would be able to perform all the duties of his occupation. He also expressed the opinion that he would be able to perform his usual occupation on a full-time basis, as long as he returned to work on a graduated program. There was nothing in that report prepared by him that indicated the applicant was so impaired by his mental illness that he would be unable to have made an application for an extension of time to lodge a reconsideration application.

   [27] This report commences at page 486 of the joint Tribunal Book.

9. Dr Grant prepared a report of 2 August 2017 after having assessed the applicant on 11 July 2017.[28] He made a provisional diagnosis of major depressive disorder, moderately severe with psychotic features. An opinion was expressed by him that the applicant’s prognosis was poor. He also expressed the opinion that he did not think that he was currently fit for any form of paid employment. However, he did not express an opinion that the applicant was unable to carry out such tasks as would prevent him from making an application for an extension of time for making a reconsideration application as indeed he had demonstrated he could do so on no less than three previous occasions.

   [28] Document T 13 of the T documents.

10. Another ground relied on by the applicant was that he was unrepresented. The Tribunal does not accept that this ground provides an adequate explanation for the delay. The applicant had in the past, notwithstanding he was unrepresented, been able to satisfactorily apply for an extension of time. He was perfectly capable of taking all necessary steps to protect his position as has been referred to above. The applicant did not in his evidence provide any particulars of how being unrepresented prevented him from making a further application for an extension of time.

11. The applicant also contends that he did not know that the time to lodge a reconsideration application had not been extended. This contention cannot be accepted by the Tribunal. The applicant was well aware of the time limits that applied for making a reconsideration application. He conceded this in his evidence. It was also apparent from the notice contained in the determination which expressly stated that a reconsideration request must be made within 30 days (referred to as a guide to an applicant’s rights). His awareness of the time limits is apparent from an examination of the correspondence the applicant sent to the respondent, or its claims agent from time to time. In particular the email that he sent to the respondent of 6 September 2017, referred to above, in which he expressed concerns about the looming deadline, is adequate proof of his acute awareness of the importance of time limits. The applicant’s knowledge of the fact of strict time limits is also inferred from the fact that he had made three previous applications to extend time to make a reconsideration application. Those three previous applications were granted by the respondent.

12. The applicant stated that he was unaware that the extension which he had requested on 30 November 2017, being an extension until 28 February 2018, had been refused, with an extension only being granted until 30 December 2017. The reason for this, he explained, was due to an issue he had viewing some emails in his G-Mail account unless he specifically searched for them. Some emails, including the one from Allianz, went into the spam box rather than the inbox.[29] Therefore, he did not become aware of the email of 4 December 2017 until 31 January 2018 after the deadline of 30 December 2017 had passed. He says that if he had been aware of the shorter deadline imposed, he would have advised Allianz that such a shorter deadline would not have given him the opportunity to properly submit all of the material he intended in support of his reconsideration application. or he would have lodged the request for a reconsideration with all he had at that time.[30]

    [29] Paragraph 16 of the applicant’s witness statement of 28 February 2022 and his evidence at page 14 of the transcript lines 42 to 47 and page 15 lines 1 to 34 are referred to for this explanation.

    [30] See paragraph 18 of the applicant’s witness statement of 28 February 2022 and his evidence at page 16 lines 5 to 14 of the transcript.

13. The Tribunal cannot accept this explanation from the applicant. He was aware of the strict time limits applicable to a reconsideration application. Once he did not receive a prompt response to his email of 30 November 2017 seeking an extension of time, he should have followed it up and sought a response. He had shown a propensity to do so in the past. He was very alive to protecting his interests.  He had regularly done so. It is puzzling that he did not do so this time. He offered no real explanation as to why he sat on his rights. He seems to have assumed that Allianz would automatically grant him the extension he sought. This was wrong. Having been granted three extensions in the past, he must have considered that the respondent and/or Allianz might not have granted a further extension or might have imposed a shorter deadline. Yet he did not follow up. It must surely have concerned him that he did not receive a prompt response from Allianz. They had always been prompt responders in the past. A simple further enquiry either by email, or even telephone as he had also done in the past, would have revealed precisely what extension Allianz was prepared to grant.

14. Another explanation offered by the applicant for the delay was that his claim file was extensive, and the work involved compiling a reconsideration application was difficult and time-consuming. In support of this contention, he also relied upon the contents of an email that he sent to Allianz on 30 November 2017. In that email, amongst other things, the applicant informed Allianz that he had always intended to take “a break from everything” in December and January. He stated he would continue working on his reconsideration application during that period, albeit, with less intensity. It was reiterated by him that given the breadth and complex nature of his claim, as evidenced by the vast amount of documents submitted by the Department, it required quite some work.

15. Whilst it is an explanation, the Tribunal does not accept that it is an adequate explanation in the circumstances. There are several reasons for this. There had been three extensions granted in the past. It should not be lost sight of that on one previous occasion he had successfully launched a reconsideration application and then withdrew it. Notwithstanding the contents of his email, which referred to the volume of documentation he needed to consider, he did not explain why he needed such a lengthy period of time to assemble an appropriate reconsideration application. For instance, he did not identify how many pages of documentation he had to consider. He did not identify what types, classes or categories of document they were and how they assisted his claim. Additionally, to some extent he appears to be relying upon the provision of documentation or other information over which he had no control. He should have lodged what was available to him within the correct timeframe, and if necessary, specifically reserved his rights to lodge further material in the future. He was clearly capable of taking this step, yet there remained a wall of silence.

16. A further explanation for the applicant’s delay in making a reconsideration application related to his inability to gain access to work documents. Both in his witness statement and from the witness box he gave evidence about efforts that he had made to gain access to the work computer system for the purposes of accessing emails and other documents.

17. The applicant explained that there had been several different departmental officers’ details provided to him who he was instructed to contact for the purposes of gaining access. On some occasions he was unable to make contact with those people nominated. On other occasions the times that they nominated for him to attend at the Department officers were unacceptable to him or were otherwise inconvenient. He contended that this became a protracted process and was draining on him. Additionally, there was some dispute over the time that he was allocated for the purposes of gaining access to the work computer. Apparently, the Department allowed him two hours which he did not consider was sufficient time.

18. Whilst it is true that the applicant did appear to experience some difficulty in gaining access to emails and work documents as he stated, he appeared to not pursue the matter with the force and effect that perhaps he should have. The matter seems to have just remained in suspense. There seems little doubt to the Tribunal that had he continued to pursue his efforts to obtain access to his work computer, he would have been accommodated. No explanation, or satisfactory explanation, for this hiatus was forthcoming. Additionally, the Tribunal is concerned that the applicant only lodged a FOI request on 6 February 2018 which was considerably after the extension that was granted to him by Allianz to 30 January 2017. Also, it was sometime after the period for which he sought an extension. It does make one question what the applicant was really doing, and whether he was in any position to provide further evidence in support of his reconsideration application.

19. Another explanation offered by the applicant for the delay was that he wished to have a Code of Conduct investigation recommenced. He expressed the view that the investigation was unreasonable and having it recommenced would demonstrate this. He said that it was unreasonable on the basis of the significant delay between the conduct complained of and the investigation being commenced, for example he pointed to his tape recording of a conversation with one Mr Kelly, which was one of the bases for the investigation, which occurred approximately nine months before its commencement. He also contended that because the Department did not at any time raise any concerns about him having recorded the conversation before commencing the investigation, this was also unreasonable conduct.

20. The Tribunal cannot see how this ground can justify the delay in making a reconsideration application. Critically, the applicant did not identify how either the Code of Conduct investigation as it had transpired, or if it was recommenced, was in any way relevant to the claim for compensation that he had made against the respondent under the SRC Act. Whilst it is fair to say that in several emails the applicant referred to the Code of Conduct investigation and his desires for such investigation to recommence, he stated that he was convinced that such investigation was intended to coerce him into accepting a settlement offer. He did not explain how this was so.

21. He then contended, without explaining why, that responding to the allegations made in the Code of Conduct investigation would assist him in proving the unreasonable nature of the process and was highly relevant to his Comcare claim. It was not suggested by him in any of that correspondence that the reconsideration process should be held in abeyance, or he should otherwise be given an extension of time to make such an application, pending the finalisation of the Code of Conduct claim. Further, on the material before the Tribunal, particularly the medical evidence, the Tribunal cannot accept the applicant’s contention that even if it is established that the Code of Conduct process was unreasonable, how it contributed to the applicant’s condition so as to give rise to a valid claim under the SRC Act.

22. The applicant also contended that another reason for the delay in making the reconsideration application was that he sought to pace himself whilst assembling a detailed reconsideration application. He explained that this was in the context of a possible return to work and consistent with medical opinion and his own perceptions of his mental health. The recent medical opinions that have been obtained have been referred to previously in these reasons. If indeed this is a valid explanation for the delay on the part of the applicant, he should have, in an appropriately worded letter or email, as he has demonstrated he was capable of doing, written to the respondent or Allianz, and sought an extension on those grounds. If the extension was not otherwise forthcoming, the obvious thing to do was to lodge the reconsideration application in the best possible way he could with the material that was available to him. Probably with a reservation of his rights to lodge further material and/or submissions as they came into his possession. Instead, there was just a wall of silence. The Tribunal concludes that this was not a satisfactory explanation for the delay.

23. Another explanation that was offered by the applicant for the delay in lodging his reconsideration application was what he described in his evidence as “Freedom of information issues”. It was common ground between the parties that the applicant had made an FOI request to the respondent on 6 February 2018. In this respect such explanation did not really assist the Tribunal in addressing this question or explanation as the request was made sometime after the time limit as extended by the respondent’s agent Allianz of 31 December 2017.

24. It is also common ground, as noted above, that the respondent, via its claims manager Allianz, provided a copy of the applicant’s claims file to him, in hard copy form on 4 December 2017.

25. The applicant stated in his evidence that the copy of the claims file that was sent to him by Allianz was incomplete. He gave, as an example, the fact that it did not contain his “Comcare statement” and “supporting documents”. He did not identify what those “supporting documents” were. In any event, the applicant’s Comcare statement and the “supporting documents”, presumably were documents that he already had in his possession as they were created by him and submitted to Comcare in support of his claim. It is not apparent to the Tribunal how this prejudiced, or otherwise hamstrung his ability to lodge a reconsideration application within the prescribed time limit, as extended from time to time.

26. The Tribunal also does not find this explanation for the applicant’s delay satisfactory because he does not identify any other documents, or classes or categories of documents, that may have emerged from an appropriate FOI request that would have assisted him in advancing his reconsideration application. At best in his evidence, he stated that he wished to ensure that he had all the same information that the decision-maker was basing her decision on. He also stated that he wished to confirm which documents Dr Grant had been relying on. This was because when he received documents from MLCOA, who had arranged for the retainer of Dr Grant, they did not include his Comcare statement.[31]

    [31] In particular, paragraph 31 of the applicant's witness statement and transcript page 18 lines 20-33 are referred to.

27. Finally, with respect to the FOI issues raised by the applicant, it is not clear from the material before the Tribunal, nor the applicant’s evidence, what “guidance” he was seeking with respect to submitting an FOI application that would have assisted him in making a reconsideration application.

28. A further ground relied on by the applicant as an explanation for the delay in lodging a reconsideration application is what he described as the “MLCOA assessment process”. It should be noted that “MLCOA” is an organisation that acts in some way as a broker for medical specialists. Should a party to claims or litigation seek to retain a medical expert, MLCOA is an agency that refers that party to a suitably qualified medical specialist as required.

29. The applicant in several emails, as noted above, and confirmed in evidence before the Tribunal, had sought access to any tape recordings that were made by Dr Grant when he assessed the applicant at the request of the respondent 11 July 2017.

30. The applicant also complained that several documents furnished to Dr Grant at the time he was retained by the respondent had been redacted.[32] The Tribunal is not persuaded that this explanation justifies granting the applicant an extension of time. Nor does the Tribunal consider that such an explanation contained in the applicant’s evidence adequately explains the delay.

    [32] A letter of instruction to Dr Grant from a Senior Case Manager of Allianz was included in the documents before the Tribunal. It is document T 12.

31. There is no evidence before the Tribunal that when Dr Grant conducted the assessment of the applicant 11 July 2017 that any tape recording was undertaken.[33]

    [33] Although the applicant referred to recordings of the assessment with Dr Grant, particularly at paragraphs 33 and 34 of his witness statement of 28 February 2022, he did not go so far as to say that in fact there was a recording undertaken during that assessment. One would have expected, in accordance with the relevant legislation, that had Dr Grant been recording the assessment, he would have, as he was obliged to do, informed the applicant of that fact. Further it is more probable than not that such a recording, if it existed, would have been lodged with the Tribunal under the respondent’s obligations pursuant to s 37 of the AAT Act. It should be borne in mind that a recording is a “document” within the definition of same contained in s 2B of the Acts Interpretation Act 1901.

1. The applicant in his statement gave an example of what he described as “missing information”. He stated there were other examples which he described as “numerous”, of missing information that did not appear in Dr Grant’s report that was furnished to Comcare. This revelation is hardly surprising. It is commonplace, and hardly realistic, to expect that every conceivable act, fact, matter, circumstance or thing that a patient refers to when being examined by a medical specialist will see the light of day in their final report. If there were errors or omissions in Dr Grant’s report, or otherwise reached conclusions that the applicant believed were wrong, it was perfectly open to the applicant to bring this to the respondent’s attention in his reconsideration application.

2. Further, with respect to the documentation that was redacted, the Tribunal was taken to one redacted document in evidence, and limited evidence was forthcoming that explained why such redactions of those documents were relevant to a reconsideration of the applicant’s claim. This is notwithstanding the applicant’s evidence that the redacted information (whatever it may be) was the most essential information. In the absence of this material, the Tribunal is unable to reach a conclusion, firstly, as to whether it is an adequate explanation, and more importantly, whether it would assist with any reconsideration application. The best the applicant was able to do was to assert that “key arguments” he was making in relation to his claim were redacted. What those “key arguments” were was not detailed. Presumably, he knew what those “key details” were and could have brought them to the attention of the respondent when he made a reconsideration application. Additionally, the applicant took issue with the failure of the letter of instruction to Dr Grant to include his Comcare statement.[34] In any event, it should be observed that in his evidence the applicant did not really suggest that Dr Grant failed to take an appropriate patient history when he saw him.

   [34] Paragraphs 35-37 of the applicant's witness statement of 28 February 2022 are referred to in their entirety for their full force and effect.

3. Finally, the Tribunal should observe the prima facie rule that proceedings should be commenced (in this case the reconsideration application) within the prescribed period. The applicant had three opportunities to do so. There has to be a limit to such indulgences or extensions of time. It is considered that limit has been reached in this case. In the circumstances, the Tribunal concludes that it is not fair and equitable to grant an extension of time.

4. By reason of the foregoing matters, the Tribunal concludes that the applicant has not adequately explained the reason for the delay in the application.

   Did the applicant continue to make the respondent aware that he contested the finality of the decision?

5. The Tribunal concludes that the applicant did not continue to make the respondent aware that he contested the finality of the decision. Earlier in these reasons, a history of the correspondence that passed between the respondent and/or Allianz its claims manager was outlined. There was a steady pattern of correspondence passing by way of email from the date of the decision of the authorised delegate of the respondent of 4 August 2017 until his email to Allianz of 30 November 2017.

6. It has been recounted previously how there was a wall of silence on the part of the applicant between 30 November 2017 and the telephone message that he left with an officer of Allianz on 31 January 2018. The Tribunal considers that this wall of silence did establish a case where the delegate of the respondent was allowed to believe that the matter was finally concluded. There had been no response to Allianz’s email of 4 December 2017. He had previously been granted three extensions of time to lodge a reconsideration application. In this setting it was open to Allianz to conclude that the matter was finally concluded.

7. There was no response forthcoming from the applicant once Allianz had sent to him all the documents on his claim file, also under cover of a letter of 4 December 2017. In the absence of a response, it was entitled to conclude that the applicant no longer wished to pursue a reconsideration application.

8. As has been touched on earlier, the applicant simply did not give any, or any adequate, explanation as to why he did not promptly follow up with Allianz on why he had not received a response to his email of 30 November 2017. He had demonstrated that he was perfectly capable of doing this in the past. Given important rights were at stake, one would have expected him, as he was prone to do, to either telephone Allianz or send a further email requesting a response. If either or both of those steps had been taken, he would have rapidly determined that an extension of time had only been granted until 30 December 2017.

9. As was explained by Wilcox J in Hunter Valley, there is a need for finality in disputes. Having given the applicant three previous extensions of time, a line had to be drawn. The Tribunal therefore concludes that the applicant did not by non-curial means, continue to make the respondent or its claims manager Allianz aware that he contested the finality of the decision.

   Prejudice.

10. The applicant contends that he will suffer a clear prejudice should the reviewable decision be affirmed as he will be unable to agitate his substantive claim for compensation. This is in a setting where there is, according to him, a body of medical evidence in his favour, including that of Dr Chambers, Dr Hundertmark, Dr Antony and Associate Professor Sahoo. There is, of course, some force in this contention.

11. On the other hand, on the question of prejudice, the respondent contends that it is prejudiced, or more accurately would be prejudiced, if a further extension of time was granted to the applicant to lodge his reconsideration application.

12. The respondent relies upon two decisions of this Tribunal which identify a ground of “public interest prejudice”. Deputy President Boyle in Mason and John Holland Pty Ltd considered that a public interest prejudice does arise in a setting such as this where an applicant simply ignores legislative timeframes.[35] Such a public interest arises from the desire to achieve finality of decision-making, and the need to prevent disruption to established practices.

    [35] (2018) 74 AAR 320 at [31].

13. Another decision relied upon by the respondent was that of Senior Member Tavoularis in Emery and Comcare.[36] A species of prejudice for the purposes of an application such as this was said to arise in the context that an insurer and public institution is entitled to be in a position to define its liabilities beyond a definite period. The Senior Member found that a significant prejudice would be occasioned to the respondent and other perhaps more worthy claimants if an extension of time for the perpetuation of claims and reviews of such a type would have the effect of precluding a respondent from optimally utilising its resources.

    [36] [2017] AATA 2281 at [29] (‘Emery’).

14. The applicant submitted that Emery should be distinguished because it was a highly unusual case in which the applicant sought review of a decision that was favourable to him. Whilst that factor is unusual, the application was nonetheless for an extension of time and the Tribunal does not see why this class or category of prejudice identified by Senior Member Tavoularis is not applicable in this case.

15. There is a public interest in statutory timeframes being adhered to. The overwhelming majority of applicants are able to lodge various applications under the SRC Act on time. It should not be lost sight of that the statutory compensation scheme which is established under the SRC Act is ultimately funded by the taxpayer. There must be some finality to proceedings. The Tribunal accepts the contentions of the respondent that it will suffer a prejudice. Admittedly, in the scheme of things, that prejudice is probably not particularly great. However, such prejudice must be viewed from the perspective that the applicant was already granted three extensions of time to lodge his reconsideration application. In the Tribunal’s view, that he was unable to do so, notwithstanding the indulgences that were granted to him, elevates the strength of the respondent’s argument with respect to the nature and effect of the prejudice that it will be exposed to if a further extension is granted.

16. Finally, with respect to the question of prejudice, it is worthwhile repeating (as has been articulated in the authorities, including Hunter Valley) that the mere absence of prejudice is not enough to justify the grant of an extension. It is in this context that public interest considerations often intrude. If the Tribunal’s findings with respect to prejudice, are otherwise incorrect, nonetheless it would not entitle the applicant to an extension on its own.

    The merits of the substantial application.

17. Both parties agree that when undertaking a consideration of the merits of the application, it is not appropriate for the Tribunal to embark upon a “mini trial” or an exhaustive consideration of the facts and issues.As noted above, the applicant contends that his case has merit. In particular the opinions expressed by Dr Shumba,[37] Dr Zutshi,[38] Dr Chambers,[39] Dr Hundertmark,[40] Dr Antony and Associate Professor Sahoo are relied upon to a greater or lesser degree.[41]

    [37] Dr Shumba’s report dated 8 April 2017 is document T 5 of the T documents, the report dated 18 August 2016 is document T 11.30 and the report dated 6 October 2016 is document T 11.35 of the T documents.

    [38] Dr Zutshi’s report dated 25 June 2016 is document T 11.21 of the T documents.

    [39] Dr Chambers’ report of 17 June 2016 is document T 11.19 of the T documents. In that report, Dr Chambers recorded a patient history given to him by the applicant of unfair treatment, workplace bullying and "heavy-handed" treatment in the workplace. With respect to diagnosis, Dr Chambers stated that from a psychiatric perspective the applicant presented with stress in relation to his perceptions of being treated unfairly in the workplace. He stated that the applicant's presentation did not meet the criteria for a psychiatric disorder. However, there could be a differential diagnosis of an adjustment disorder with anxiety. Dr Chambers also concluded that the applicant was then able to return to work on a graduated return to work basis. There were also additional reports of Dr Chambers of 13 July 2016 (document T 11.24), 1 August 2016 (document T 11.27), 29 November 2016 (document T 11.37), 3 January 2017 (document T 11.39) and 17 January 2017 (document T 11.40). In his report of 3 January 2017, Dr Chambers recorded a patient history in which he noted that the applicant had been preoccupied with perceptions of bullying in the workplace, and that there appeared to have been ongoing correspondence in which the applicant alleged the department had not followed correct procedures in relation to his grievances. He expressed the opinion that the applicant's presentation was most consistent with an adjustment disorder with mixed anxiety and depressed mood.

    [40] Dr Hundertmark’s reports were dated 31 May 2017 (document T 11.43 of the T documents) and 19 June 2017 (document T 11.45 of the T documents). The applicant gave Dr Hundertmark a patient history that outlined his workplace grievances including what he described as "a form of retribution" and a Code of Conduct investigation. Dr Huntertmark expressed the opinion that the applicant suffered from a moderate depressive condition. He also expressed the opinion that the applicant did not suffer from a full major depressive disorder. Additionally, he opined that it seems the symptoms the applicant expressed were directly linked to his industrial issues with the Department.

    [41] Reference was made in the applicant's material to a report from Dr Anthony. However, no such report was in evidence.

18. Associate Professor Sahoo’s report dated 23 July 2018 was emphasised by the applicant in his submissions.[42] In that report, Associate Professor Sahoo opined that applicant had what could possibly be classified as an adjustment disorder in 2014 when he was in the Northern Territory and was subjected to certain stressful experiences. Additionally, he expressed the opinion that in 2016 when the applicant was transferred from Canberra to Melbourne, he perceived and made allegations of workplace harassment and bullying. This led to the applicant developing low mood with anxiety symptoms and associated manifestations. Later in that report, Associate Professor Sahoo stated that he agreed with an earlier diagnosis by Dr Zutshi, in a report of 25 June 2016, of an adjustment disorder.[43] Associate Professor Sahoo repeated that he considered that this psychological distress experienced by the applicant appeared to have been precipitated by workplace conflicts.

    [42] Associate Professor Sahoo’s report commences at page 486 of the joint Tribunal book. Paragraph 5.8-5.9 of the Applicant’s Statement of Facts, Issues and Contentions is referred to.

    [43] Dr Zutshi’s report of 25 June 2016 is document T 11.21 of the T documents. In that report Dr Zutshi a Consultant Psychiatrist, stated that given the symptoms and presentation of the applicant, in his opinion his diagnosis was a major depressive disorder (moderate to severe intensity). He also opined that the applicant may have had a differential diagnosis of an adjustment disorder. Additionally, he concluded that the applicant had no work capacity due to his psychiatric illness. He also advised the applicant against working at that time as an office environment was described as "a big stress". The report recorded that the applicant had given a patient history that included being bullied and singled out in the workplace. The applicant also informed him of other adverse workplace experiences that he had suffered from.

19. Certainly, when one considers Associate Professor Sahoo’s report at face value, the applicant’s case is arguable.

20. The respondent principally relied upon the report of Dr Grant of 2 August 2017.[44] That report observed that the applicant attributed the onset of his symptoms to his employment. Dr Grant concluded that he could not establish to his satisfaction that the condition was work-related. He further expressed the opinion that it might be coincidental that the applicant’s symptoms emerged during his employment and became incorporated in his attribution of his deteriorating mental state to events at work. However, Dr Grant considered it was possible that the applicant’s condition was an “endogenous” or constitutional condition that happened to have intersected with his work. Dr Grant also expressed the opinion that the applicant did have a significant pre-existing vulnerability. Therefore, he considered that the applicant’s condition would have occurred irrespective of him being employed by the Department.

    [44] Document T 13 of the T documents.

21. The respondent contended that reliance on Associate Professor Sahoo’s report should be limited because the applicant’s contentions of workplace conflicts, bullying and like behaviour, is unlikely to be made out. In support of this contention, it relies on several grounds. As a starting point, it contends that there is no objective evidence to support such allegations of bullying and harassment. Certainly, the Tribunal accepts that there is no evidence in admissible form before it to substantiate these allegations.

22. Additionally, the respondent relies upon the history of a claim made by the applicant in the Fair Work Commission which resulted in a hearing before Deputy President Colman.[45] Several passages of the decision of Deputy President Colman were referred to by the respondent in submissions.[46] The Deputy President made findings based upon the evidence adduced before him that he could not identify any basis to conclude that the applicant was subject to bullying. He also could find no evidence to support any contentions of the respondent Department engaging in “misconduct”, “illegal things”, “lying” or that the applicant’s dismissal was “contrived” and the “culmination of unrelenting abuse”. He concluded by finding that there was nothing to suggest to him that the Department had acted improperly in its dealings with the applicant.

    [45] See Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878. This decision was appealed to a Full Bench of the Fair Work Commission in Gadzwika v Commonwealth of Australia (Department of Human Services) [2018] FWCFB 7354. The appeal was unsuccessful.

    [46] Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878, [84]-[86].

23. Whilst a decision of the Fair Work Commission is not, and cannot be, binding upon this Tribunal, such findings are nonetheless persuasive. It should not be lost sight of that these findings were reached after there had been a hearing where witnesses gave evidence on oath or affirmation. These findings are significant and are contrary to what is alleged by the applicant. They are contrary to what the applicant has informed medical specialists who have undertaken assessments of him and prepared medicolegal reports.

24. The applicant contends that the findings of the Fair Work Commission are of limited assistance because it is more likely than not that different evidence was adduced before it when compared with the decision maker in this matter. It was also argued on the applicant’s behalf that he was unrepresented before the Fair Work Commission and was unable to call witnesses. This is not correct as the applicant gave evidence on his own behalf at that hearing. There is nothing in the Fair Work Commission’s decision to suggest that the applicant was precluded from calling witnesses. Quite the contrary, the hearing occupied three sitting days with an array of witnesses giving evidence.[47]

    [47] Details of each of the witnesses who gave evidence before Deputy President Colman at the hearing of the application before the Fair Work Commission are contained in paragraph [8] of his reasons. The witnesses appear to have been all of the key personnel employed by the Department relevant to the applicant's claim.

25. Additionally, the findings of the Fair Work Commission are contrary to several of the facts recounted in several of the medical specialists’ reports. In particular, the contents of Associate Professor Sahoo’s report which accepts the applicant’s instructions to him that he had perceived and made allegations of bullying and harassment at the workplace, is now open to serious question. This significantly affects the strength of the applicant’s argument concerning the merits of the substantial application. It weighs against the applicant.

26. Another contention relied upon by the respondent in alleging that the merits of the applicant’s claim are not strong arises from the provisions of the SRC Act that exclude claims arising from reasonable administrative action undertaken in a reasonable manner by the employer.[48] It submits that if the applicant were able to establish that his employment significantly contributed to his claimed condition, which is denied, he is caught by the exclusionary provisions. It contends that the evidence identifies several events that were undertaken by Departmental management to address issues that had been raised by the applicant concerning his workplace.

    [48] Section 5A.

27. On the other hand, the applicant contends that the relevant steps, or the actions, taken by his employer were not reasonable administrative action undertaken in a reasonable manner.

28. Several issues were identified. They were as follows:

    (a)A direction to report intended absences from duty and provide suitable evidence dated 20 May 2016;[49]

    (b)A potential breach of the Code of Conduct which included a formal direction and warning given to the applicant on 26 May 2016. The subject matter of the warning concerned a pattern of inappropriate behaviour by him over a six-month period that was suspected by the Department to have constituted a potential breach of the APS Code of Conduct;[50]

    (c)A letter addressed to the applicant on 23 February 2017 advising of a Code of Conduct investigation. The grounds relied upon for the commencement of such investigation were that he may have failed to comply with a reasonable direction, covertly recorded a telephone conversation with a colleague, failed to demonstrate respect and courtesy, failed to comply with a direction issued by a senior rehabilitation case manager to attend and not obstruct a fitness for duty assessment and not to make derogatory and inappropriate remarks concerning a medical provider.[51]

    [49] Document T 11.14 of the T documents.

    [50] Document T 11.15 of the T documents.

    [51] Document T 11.42 of the T documents.

1. In a summary application such as this it is not possible for the Tribunal to finally adjudicate on the question of whether the action taken by the applicant’s employer and relied upon by the respondent was reasonable within the meaning of s 5A of the SRC Act.

2. With respect to the direction to report intended absences from duty and provide suitable evidence dated 20 May 2016, the applicant contends that it was not reasonable administrative action in the circumstances because it was a response by the employer to a Certificate of Capacity signed by his treating general practitioner Dr Shumba on 10 May 2016.[52] That certificate contained a diagnosis by the applicant’s treating general practitioner that he was suffering from an adjustment disorder, stress and anxiety with depressive symptoms. In a section of the certificate concerning mental health function and additional comments, it was reported that the applicant was, “unable to function in the current work environment due to stress, however he is willing to attempt performing his duties in a different environment/site or from home.” It stated that he had no capacity for employment from 10 May 2016 to 12 May 2016. The evidence was that the Certificate of Capacity signed by the applicant’s treating general practitioner was provided by him to his employer.

   [52] Document T 6.3 of the T documents.

3. It is contended by the applicant that there is “question mark” over how reasonable it was to issue the direction of 20 May 2016 to report intended absences from duty when the employer knew that the applicant was suffering from a diagnosed psychiatric illness.

4. The language used in the direction to report intended absences of 20 May 2016 should be carefully referred to. It is not written in a confrontational style. It refers to the applicable clause of the Department of Human Services Agreement 2011-2014. It refers to the applicant’s absence from duty at his Collins Street place of work on 11, 12, 16, 17 and 18 May 2016. The direction explained that it was important that the applicant follow its contents so that appropriate arrangements could be made in the workplace for him, other employees, and customers during his absence. It also contained a direction to the applicant that he must supply its author with suitable evidence to support any absence for which he requested personal leave until 30 June 2016. The direction also drew the applicant’s attention to the fact that failure to comply with it may be a breach of the APS Code of Conduct and that he was entitled to request in writing a review of the decision contained in it. Finally, it also reminded the applicant of the access that he had to the Employee Assistance Program if he wished to consult a private and confidential counsellor about work-related or private matters.

5. Whilst it is acknowledged that the applicant had been diagnosed by Dr Shumba with an adjustment disorder, stress and anxiety with depressive symptoms, the Certificate of Capacity signed by him only stated that the applicant had no capacity for employment from 10 May 2016 to 12 May 2016. It also stated that the applicant had a capacity for suitable employment from 16 May 2016 to 6 June 2016. Given the absence from work without explanation on several days outside those contained in the certificate, objectively it does not seem unreasonable for an employer to issue the direction to report any future absences, as it was entitled to do under the applicable clause of the Department of Human Services Agreement 2011-2014. The Tribunal considers that the direction was written carefully and with a reasonable consideration for the position that the applicant was in including his mental health conditions. This is highlighted by the reference in the direction to the applicant having a right to review the contents of the direction and access to counselling through the Employee Assistance Program.

6. Also, with respect to the direction to report intended absences from duty given to the applicant on 20 May 2016 it is not apparent from the medical evidence that such direction actually contributed to the mental health conditions that he suffers from. By way of example, Associate Professor Sahoo in his report of 23 July 2018 opined that the applicant’s psychological distress appeared to have been precipitated because of workplace conflicts. He did not go so far as to identify the direction to report intended absences from duty as a cause of such psychological distress, or even as some psychiatrists do from time to time, suggest that the direction might have been “the straw that broke the camel’s back”. Similarly, there was no other medical evidence to this effect.

7. Dr Chambers, a consultant psychiatrist, prepared a report of 17 June 2016 after he had conducted a fitness for duty assessment of the applicant.[53] Amongst the file material furnished to Dr Chambers in anticipation of conducting the fitness for duty assessment of the applicant was the Certificate of Capacity from Dr Shumba of 10 May 2016 and the direction to report intended absences from duty dated 20 May 2016. Dr Chambers did not state that the direction to report intended absences from duty dated 20 May 2016 contributed to any psychiatric or mental health condition. With respect to the applicant’s diagnosis, he stated that from a psychiatric perspective he presented with stress in relation to his perceptions of being treated unfairly in the workplace although his presentation did not meet the criteria for a psychiatric disorder. He also expressed the view that the differential diagnosis would be an adjustment disorder with anxiety. One would have assumed that if the direction to report intended absences from duty dated 20 May 2016 that was given to the applicant contributed to any condition suffered by the applicant, Dr Chambers would have said so. Lest it needs to be noted, his report dated 17 June 2016 was relatively soon after the events concerned. For this reason, the Tribunal does place some weight upon that report concerning this question.

   [53] Document T 11.9 of the T documents.

8. The potential breach of the Code of Conduct containing a formal direction and warning of 26 May 2016, should be considered as a whole. An examination of the document reveals that it is written professionally, courteously and in a nonconfrontational manner. There is nothing in the language or content of the document that could be objectively considered to be unreasonable. Detailed particulars of the potential breaches of the Code of Conduct were enumerated in the letter. It reiterated that on previous occasions these matters had been raised with the applicant. Additionally, he was given the opportunity to provide further comments or a response to the author of the letter, Mr Kelly. The letter also informed the applicant that he had a right to request in writing a review of the decisions contained in it. It was also stated that on that occasion it had been decided not to refer the matters for a Code of Conduct investigation. Finally, it drew the applicant’s attention to the fact that if he wished to talk to a private and confidential counsellor about work-related or private matters, he was entitled to make use of the applicable Employee Assistance Program.

9. Likewise, with respect to the potential breach of the Code of Conduct given to the applicant or 26 May 2016, the medical evidence before the Tribunal did not go so far as to say that the giving of such notice actually contributed to the applicant’s mental health condition.

10. The letter of 23 February 2017 informing the applicant that a Code of Conduct Investigation was to be commenced with respect to five allegations made against him was also written professionally, courteously and in the Tribunal’s view, in an appropriate manner in all circumstances. He was also informed in the letter that he would be given an opportunity to respond to the allegations and provide any additional information. Importantly, he was advised that the matter would be investigated in accordance with his employer Department’s “Procedures for determining breaches of the APS Code of Conduct and imposition of sanctions”. Finally, the author stated that she recognised, the letter, and the processes that would follow, might be both confronting and alarming for him. Therefore, she encouraged him to seek support and confidential personal counselling through the applicable Employee Assistance Program.

11. Another matter in the context of reasonable administrative action which was raised by the applicant should be mentioned in these reasons. This arises with respect to events that occurred on 15 November 2016 between the applicant and Andrew Hart (“Hart”) who was at that time acting director of the Information Services Branch of the employer. There was an exchange of emails and a telephone conversation between them on that morning. The applicant stated that in the telephone conversations he was informed by Hart that he was required to attend the workplace on that day. The applicant then sent an email to Hart stating, amongst other things, that he was not fit for work but because his expectation was that he should be at work he would return with an anticipated arrival time of 10:15 AM. He also stated in that email that his decision to return to work went against the professional medical advice of his treating doctor.[54] The applicant then attended work. Hart then telephoned him on three occasions after receiving “HR/Legal advice” that the applicant was not to attend the workplace. An entry in his statement of 16 July 2017 states that he left a message for the applicant not to attend work pending further medical assessment.[55]

    [54] The email is document T 10 of the T documents.

    [55] Document T 11.47 of the T documents.

12. The thrust of the applicant’s contention is that initially in the conversations with Hart, as is apparent, he is informed that attendance at the workplace is required. The applicant stated he was unfit to attend but does so anyway because he was essentially facing a threat that a failure to attend the workplace would be deemed unauthorised. Having attended the workplace in those circumstances, the employer effectively changed its mind following the receipt of legal advice which was that he should not attend, and he would be given medical leave without pay. On its face it was submitted by the applicant that this was unreasonable.

13. It is probably debatable whether acting on legal advice, as it appears the employer did, is unreasonable in the circumstances. It was an isolated incident where the only inconvenience to the applicant, apart from the communications he had with Hart, was the time he spent travelling to and from the workplace. Once again, it is not at all apparent that this isolated incident contributed to the condition with which the applicant has been diagnosed. Certainly, it is not apparent from the medical evidence before the Tribunal that this is the case.

14. These events are administrative in nature and captured by the exclusionary provisions in the SRC Act. Actions directed to the applicant’s employment itself, as opposed to action forming part of the everyday duties or tasks performed by him in his employment or job.[56] It will be recalled that the Code of Conduct investigation, and the circumstances surrounding it, were one of the grievances aired by the applicant against the Department. It featured in several of the carefully worded emails that were sent by the applicant to the respondent from time to time which have been detailed earlier. The investigation and the circumstances surrounding it were also the subject of patient histories that the applicant furnished to several of the Consultant Psychiatrists who assessed him and prepared reports which were in evidence. As these events are administrative in nature, and the exclusionary provisions apply, no liability to the applicant arises.

    [56] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at [60].

15. Overall, when one takes into account each of these considerations concerning the merits of the applicant’s case, it seems, at best, that he would have very limited prospects of success. It is a factor that is taken into account by the Tribunal in the exercise of the discretion vested in it to extend time under section 62(3) of the SRC Act. It weighs against the grant of an extension of time.

    DECISION.

16. By reason of the foregoing matters the Tribunal concludes that an extension of time should not be granted in accordance with section 62(3)(b) of the SRC Act. Accordingly, the reviewable decision is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member  

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

Associate

Dated:    28 April 2023

Date of hearing:	16 September 2022, 12 December 2022 & 6 March 2023
Advocate for the Applicant:	Mr Joshua Lessing
Advocate for the Respondent:	Mr Joe Leczner
Solicitors for the Respondent:	Australian Government Solicitor