Galanis and Comcare (Compensation)

Galanis and Comcare (Compensation) [2018] AATA 486 (14 March 2018)
Division:GENERAL DIVISION
File Number(s): 2015/6795
Re:George Galanis
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:14 March 2018
Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution, decides that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay compensation to the Applicant in respect of his claimed injury.
[sgd]........................................................................
Member K. Parker
COMPENSATION – adjustment disorder with predominate features of anxiety – ailment – whether contributed to, to a significant degree, by the employee’s employment – disease - whether certain action taken by the employer was “administrative action” – action taken in context of an organisational restructure – “spill and fill” process - subsequent selection process for specific substantive positions at level – delay in confirmation about whether employee would be paid relocation costs and delay in decision about whether employee would be allocated meaningful duties at the end of temporary transfer – whether the disease was “suffered as a result of” administrative action – characterisation of administrative action – whether each of the administrative actions were reasonable and taken in a reasonable manner
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14 and 53
Cases
Comcare v Martin (2016) 258 CLR 467
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 145 FCR 29
Lim v Comcare (2017) 250 FCR 298
Wieczorek and Comcare (Compensation) [2017] AATA 994
Secondary Materials
Defence Enterprise Collective Agreement 2012-2014
REASONS FOR DECISION
Member K. Parker
14 March 2018
INTRODUCTION

This application involved a dispute about whether Dr George Galanis was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) with respect to an injury sustained while he was employed at the Department of Defence (Department). Comcare accepts that Dr Galanis’s employment at the Department contributed to, to a significant degree, his claimed injury. However, Comcare denies liability under the SRC Act, as it considers that Dr Galanis’s injury arose as a result of reasonable administrative action taken by the Department in a reasonable manner and for this reason; the exclusion under s 5A applies to disentitle Dr Galanis from compensation under the SRC Act. Dr Galanis, on the other hand, contended that this exclusion did not apply.
BACKGROUND
Dr George Galanis is a 58 year old man with a background in science. He holds a Computer Science degree and a Doctorate of Philosophy from the Royal Melbourne Institute of Technology in the Engineering Department (in engineering psychology) on the study of “human factors” in the simulation and flight training area. Dr Galanis said he had qualified for a commercial pilot’s qualification, namely, an Air Transport Pilot Licence, which was maintained up until 2000.[1]
[1] Refer to paragraphs [10] and [11] of a statement by Dr Galanis dated 9 September 2016 forming Exhibit “A1” (Dr Galanis’s Statement).
Commencement of Dr Galanis’s employment with the Department
In 1991, Dr Galanis commenced employment, as a civilian, with the Department in the Defence Science and Technology Group (DSTO) based in Melbourne.[2] In 2001, Dr Galanis moved to Adelaide and continued working for the DSTO until 2012.[3] When Dr Galanis went to Adelaide, he was promoted to the position of a Principal Researcher.
[2] Refer to paragraph [11] of Dr Galanis’s Statement. The DSTO group is now known as the DST Group.
[3] Refer to paragraph [12] of Dr Galanis’s Statement.
Transfer from Adelaide to Canberra in 2012
In September 2012, Dr Galanis moved to Canberra to take up a temporary transfer to the role of an Air Force Scientific Advisor (ASFA). Dr Galanis remained employed within the DSTO and was paid out of the DSTO’s budget.[4]
[4] Refer to paragraph [12] of Dr Galanis’s Statement.
The arrangements in relation to this transfer were recorded in a letter by Mr Jim Smith (Mr Smith), Chief of Projects and Requirements Division, DSTO, to Dr Galanis dated 13 July 2012, which stated as follows (emphasis added):[5]
1. I am delighted to welcome you to Projects and Requirements Division (PRD) and confirm your term transfer to the position of Air Force Scientific Adviser (AFSA). Chief Land Operations Division (CLOD) has agreed to your release from his Division and had advised me that you hope to move to the AOD or AVD community in Melbourne on conclusion of this term transfer.
2. AFSA fills the role of Principal Science and Technology Staff Officer to the Chief and Deputy Chief of Air Force. AFSA provides Air Force with an operational-level single point of contact for facilitating engagement with CDS, CPM-Air, DSTO Chiefs, RLs and Task Leaders. Your line management in PRD will be through Research Leader Requirements and Program (RLRP).
3. Your relocation to [PRD] will be for an initial period of two years with an option to extend to three years by agreement between you, DCDS (IWS), DCDS (PHS) and myself. At the end of this period it is expected that you will relocate back into a substantive S&T Level 7 position in Fishermans Bend or Edinburgh[6]…
…
[5] Refer T-Documents T10ae/147. The T-Documents are a set of documents lodged with the Tribunal by Comcare on 21 January 2016 in accordance with its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Supplementary T-Documents are a set of documents lodged with the Tribunal by Comcare on 18 August 2016 in accordance with its obligations under s 71 of the AAT Act.
[6] The reference to “Fishermans Bend” in this letter is taken by the Tribunal as a reference to the Defence laboratory or offices located in Port Melbourne and the reference to “Edinburgh” is taken as a reference to the Defence laboratory or offices based in South Australia.
DSTO restructure and organisational change initiated in 2013
In April 2013, a proposed new structure for the DSTO was approved and then implemented in July 2013, consolidating its research function into seven Divisions, each headed by a Chief, and its corporate roles and functions into three Groups, each headed by a Deputy Chief Defence Scientist.[7] Following those changes, it was considered that DSTO needed to be “organised into key S&T capability areas” that had “appropriate focus and scale”.[8]
[7] Refer T-Documents T10ab/72.
[8] Refer T-Documents T10ab/73.
DSTO organisational change business case approved in December 2013
On 12 December 2013, a DSTO organisational change business case (Business Case), was approved by the Chief Defence Scientist for the “review and transformation of the Major Science and Technology Capabilities (MSTCs) within DSTO”.[9]
[9] Refer T-Documents T10ab.
Clause 1b. of the Business Case stated that the requirements of the organisational change would affect “the roles of all S&T8 and S&T7 positions including corporate positions”. At Clause 2, the stated “Aims” of the Business Case included to “introduce a consistent approach to the management and organisation of DSTO’s S&T capabilities to facilitate a stronger focus on science excellence and delivery of higher impact client outcomes”.
Clause 4 recorded a commitment by the Department and DSTO “to maximising reassignment opportunities as the first preference for all employees affected by workplace change”.
The Business Case states at Clause 5 that DSTO was “reshaping its organisational structure to align with and support delivery of” the DSTO Strategic Plan 2013-18.
Under the Business Case, new specified roles at the S&T7 level were developed and are described in Clause 13b. They included Group Leader, Specialist Science Adviser and Principal Scientist. The Principal Scientist position is described in Clause 13b(3) as “responsible for leading deep S&T activities in a specific field, mentoring staff, and contributing to the reputation of DSTO’s science excellence” and as further detailed in Annexure A to the Business Case.[10]
[10] Refer T-Documents T10ab/81.
Clause 17 stated that at the S&T7 level “there will be positions for a total of 124 Group Leaders and up to 10 Principal Scientists filled substantively. The Principal Scientist positions will be established across the Divisions on a merit basis in areas where there is a capability need. The structure in Divisions will also include 11 Specialist Science Adviser Positions filled on a rotational basis from S&T7 Group Leaders”.
In a section about “impact on employees”, Clause 25 states that “All S&T8 and S&T7 employees will be treated transparently, equitably and consistently. Full details of the impact on specific positions and employees will be outlined in the Staff Transition Plan (STP)”. Clause 27 states that “affected employees will be provided with support consistent with DECA C3.6”. The DECA is the Defence Enterprise Collective Agreement 2012-2014 (DECA). Clause 26 of the Business Case states:
The majority of affected employees will be reassigned within DSTO. However, there may be a small number of unassigned employees who need to be managed on a Defence wide basis in accordance with the DECA (noting that S&T positions only exist with DSTO). Any unassigned employees who cannot be reassigned within DSTO will be assisted with identification of appropriate placements…
Clause 28 stated that “affected employees have been and will continue to be consulted throughout this change activity”. Clause 33 provides a summary of communication and consultation activities that took place with various “stakeholders” prior to approval of the Business Case. Clause 34 provided that an overview of additional consultation and communication specific to each Division was available on the “organisational change intranet site”.
Clause 29 stated that “ongoing consultation will be the responsibility of the Change Manager appointed in this Business Case” and that “two Research Leaders have been assigned full time to support the Change Manager”. The responsibilities of the Change Manager and Affected Employees were set out in further detail as follows:[11]
[11] Refer to Part D (a) and (c) respectively in Annexure L to the Business Case comprising T-Document T10ab.
(a) Affected Employees: have responsibility for their own career management and are to actively participate in reassignment and redeployment processes. They are to continue to participate in the Performance Feedback Assessment and Development Scheme (PFADS), including during any period performing meaningful work.
…
(c) Change Manager: manages the implementation of changes, including the impacts of change on affected employees. The role includes:
-    development and implementation of the STP;
-    managing ongoing consultation with employees and their representatives;
-    keeping detailed case management records for each unassigned employee;
-    overseeing the reassignment of affected employees;
-    liaison with R&R Case Managers; and
-    reporting on the change activity.
Change Manager appointed in December 2013
Dr Ian Sare (Dr Sare), Deputy Chief Defence Scientist, Strategy & Program, was the appointed Change Manager for the “change activity”.[12]
[12] Refer Clause 38 of the Business Case and paragraph [3] of the statement of Dr Ian Sare dated 20 January 2017 (Dr Sare’s Statement).
Staff Transition Plan developed in March 2014
Clause 39 of the Business Case required Dr Sare as the Change Manager to develop a Staff Transition Plan (STP) “in consultation with affected employees and their representatives” which was to include “support to be provided to affected employees and arrangements for the transition from existing to new structures”. The STP was finalised on 11 March 2014.[13] Implementation was due to be completed by the end of April 2014.
[13] Refer T-Documents T10ac.
Clause 1 provided that the STP detailed:
(a)the overarching principles and specific arrangements that would apply to the management of employees affected by the change activity, including the roles and responsibilities of key parties, time frames, consultation and communication arrangements; and
(b)the strategy that would apply to transitioning employees to the new structure outlined in the Business Case.
Clause 2 of the STP provided that implementation of the new structure would take place in a “fair and transparent manner”.
Clause 3 of the STP provided that all employment decisions would be made consistent with the Defence policy and in particular, “the first preference was to maximise the opportunities for reassignment for all unassigned employees, in order to retain their skills and knowledge”.
Clause 15 provided that at the S&T7 level, the positions would comprise:
(c)125 Group Leaders, filled substantively;
(d)Up to 10 Principal Scientists filled substantively, depending on capability needs;
(e)24 Specialist Science Advisers within the DCDS Groups and Divisions filled on a rotational basis by substantive S&T7 Group Leaders and Principal Scientists.
Section E of the STP covered consultation. Of particular relevance:
(a)Clause 18 stated that affected employees and their representatives had been and would continue to be consulted throughout the change activity;
(b)Clause 19 provided that ongoing consultation would be the responsibility of the Change Manager and an MSTC Change Team had been established to oversee all change activities;
(c)initial advice about the requirement for the organisational change was provided to employees on 19 September 2013, through the “Conversation with [Chief Defence Scientist]” facility and a slide pack was released to employees on 25 September 2013, through the Daily News. Further information was provided in the Chief Defence Scientist e-News dated 1 October 2013;
(d)employees were consulted in relation to drafts of the Business Case (in late November, early December 2013) and the STP (in February 2014). Employee forums were held with S&T7 staff in relation to the draft STP, allowing for staff to ask questions.
Section F of the STP provided for the establishment of panels that would consider the assignment of S&T7 employees to positions within the new structure. The panels were required to take into account the preferences of employees. The panels were to identify candidates with a high level of leadership and interpersonal skills, a passion for science, a significant reputation in the field, a history of delivery of client outcomes and the ability to develop external relationships.
The process for filling the S&T7 positions was set out in Section F. In broad terms, the process involved assigning employees to the S&T8 positions first and then embarking on an assignment process for the S&T7 positions.
Clause 43 of the STP provided:
43. Step 10: Transition – Transition to the new substantive S&T8 and S&T7 roles will commence from mid-May for completion no later than 30 Jun 14. The timing, duration, and arrangements for employees who will fill a rotational position in FY 14-15 will be discussed on an individual basis. It is expected that these moves will happen between Jun 14 and Jun 15. For those employees currently in a rotational position or performing a role that will become rotational in the new structure, transition timing and arrangements will be discussed on an individual basis.
Clause 44 of the STP provided (emphasis added):
To ensure a smooth and phased implementation, employees who currently occupy what will become rotational positions, but are not assigned to a substantive position in the new structure, may be selected to continue to perform a rotational role for up to 2 years. This would be considered meaningful work for unassigned employees, and would allow time for the transition to be done effectively.
Section G of the STP was headed “Management of affected employees” and provided as follows (emphasis added):
(a)Clause 47 stated that “Defence is committed to maximising opportunities for reassignment, redeployment or retraining as a first preference for all employees affected by workplace change. All employees will be managed in accordance with the provisions contained in Part C of DECA and the DWRM. Details are included in Annex D”;
(b)Clause 48 stated that “Six to twelve months is considered a reasonable period of time of unassignment due to this change activity. This may vary depending on individual circumstances, geographical location, and organisational needs and requirements”;
(c)Clause 49 stated that “The Change Manager may recommend that an unassigned employee be declared excess if it is not possible to reassign the employee within a reasonable period. Further details are contained in Annex D”.
Clause 5 of Annexure D (entitled Organisational Change Management Policy Framework and Supporting Information) to the STP stated that “all employees affected by organisational change will be provided with workplace support including information on options and the case management process and advice on coping with stress”.
Clause 6 of Annexure D provided that “Unassigned employees will be provided with individual and targeted support including assistance with reassignment and the development of a personal reassignment plan”.[14]
[14] Refer T-Documents T10ac/133.
Clause 7 of Annexure D provided that “the Change Manager will contact the local R&R Case Manager early in the change process to establish the level of support likely to be required in assisting employees affected by the change”. Under Clause 8, the R&R Case Manager was to help with identifying ongoing employment opportunities across Defence and the Change Manager would advise the unassigned employee of any potentially suitable vacancies with their Group.
In Clause 9 of Annexure D, the Change Manager, with assistance from the HR Business Partner, was to facilitate negotiations with other Defence Groups via the HR Business Partner network in an effort to identify any available ongoing employment opportunities.
Clause 11 of Annexure D provided:
Reassignment and redeployment arrangements: in order to assist in the reassignment of change affected employees, the Change Manager will identify ongoing employment opportunities within the Group. Unassigned employees will be considered in isolation (i.e. prior to and in advance of any other candidate) for any potential vacancies prior to advertising. All reassignment efforts will be documented in individual employees’ Personal Reassignment Plan.
Clause 12 of Annexure D provided:
Personal Reassignment Plan: the Change Manager and R&R Case Managers will assist employees to complete a Personal Reassignment Plan (PRP). The PRP seeks to clarify personal and professional details; preferences regarding reassignment; information regarding proposed and attempted reassignment options, including reasons why reassignment attempts may have failed; and reference to training and development requirements or temporary work placements. Unassigned employees will also be assisted with completion of a current resume, which will be used during consideration for reassignment to specific positions at level.
It was mandatory for all change affected employees to be registered on the Defence APS Redeployment Register as set out in Clause 13 of Annexure D of the STP.
Obligations under the Defence Enterprise Collective Agreement
Clause C3.6(b) of the Defence Enterprise Collective Agreement 2012-2014 (DECA) provided that training and support was to be provided to employees affected by organisational change and it included “individual support” which was described as follows:
Individual Support – Individual and targeted support as part of the case management process and development of a personal reassignment/redeployment plan for each employee who does not have an ongoing job in the new organisational structure. Such support may include:
(i)Assistance in reassignment (and redeployment for excess employees);
(ii)Training to upgrade or gain skills and qualifications;
(iii)Vocational assessment;
(iv)Work placements and on-the-job training and experience;
(v)Work trials in vacant positions which may be suitable for reassignment, redeployment or inter-Agency transfer; and
(vi)Individual financial counselling fees reimbursed up to a limit of $500 where the employee has been provided with a financial estimate of a voluntary retrenchment package.

Clause C4.7 of the DECA provided that:
The Group Head and change manager are responsible for ensuring that all suitable reassignment and redeployment opportunities are pursued within the Group, Defence and the wider APS, consistent with the Government’s APS Redeployment Policy. Employees have responsibility for their own career management and are to actively participate in reassignment and redeployment processes…
Defence Workplace Relations Manual – policy and procedure on organisational change
Chapter 6A of Part 1 of Section 1 of the Defence Workplace Relations Manual (DWRM) provided an overview of managing organisational change in Defence. Clause 6A.1.2.5 provided that (emphasis added):[15]
…
Employees whose positions are affected by organisational change may experience some feeling of instability and stress throughout the transition period. Managers will need to be sensitive to the situation. Communication between a Change Manager and employee is vital in ensuring that the employee is aware of their rights, options, obligations, implications where the employee is ill or injured and (above all) what is reasonably expected of them.
Communications should be open, honest and ongoing. Lack of information on change can lead to fear, uncertainty and resistance to change…
[15] Refer T-Documents T10c/164.
Clause 6a.1.3.9 of the DWRM provided that:
Individual and targeted support should be part of the case management process as well as development of a personal reassignment / redeployment plan for each employee who does not have a job in the new organisational structure.
Roll out of the organisational restructure
Dr Galanis said at the hearing that in 2014 he was required to submit an application for his three preferred positions in the new structure. He said there was an interview process. He said the interviewers were in Melbourne and Dr Galanis was in Canberra. He said there was no offer to do the interview face-to-face. The interview took place by video conference and lasted for about half an hour.
Dr Galanis said that at the interview, he was asked to describe in five minutes or less why he had applied for each of his three nominated positions. Dr Galanis said he was also asked some specific questions about one of the positions being the “head of unmanned air vehicles”. Dr Galanis said he highlighted the benefits of his networks in Canberra. Dr Galanis said he told the interviewers that he was also prepared to accept a role in simulations.
Notice given to Dr Galanis on 15 May 2014 that he was not assigned to a substantive position in the new DSTO structure
Dr Galanis said he attended a meeting with Mr Smith in April or May 2014 and was notified that he was unsuccessful in obtaining a substantive role in the new structure, but successful in retaining the term transfer.
Mr Smith sent a letter to Dr Galanis dated 12 May 2014 confirming that his employment status had been changed to an “unassigned” staff member.[16] Mr Smith stated:
This has been a difficult decision, and I am conscious that this may be a difficult time for you. You are assured that ongoing support will be provided to you throughout the change management process at all times by Dr Ian Sare, as the Change Manager. Dr Sare will contact you shortly to commence assisting you through the change management process and provide the relevant support.
[16] Refer Supplementary T-Documents ST8/32.
Subsequently, Dr Sare provided Dr Galanis with a letter dated 15 May 2014 confirming that he had not been selected to transfer at level to an ongoing position in the new structure and as a result, his employment status would be amended to “unassigned” as from the date of effect of the new structure, being 1 July 2014.[17] Dr Galanis was also advised in this letter as follows:
As an unassigned employee you will be meaningfully employed at your substantive level within DSTO (or elsewhere within Defence) until such time as you are reassigned to a suitable permanent position.
…
You will be assisted with identification of a new position that suits your skill set. Defence seeks to reassign employees within their Group as a first priority in order to retain their skills and abilities.
…
I am committed to assisting you through this process and will continue to pursue redeployment through the reassignment of duties with the Group as a high priority in the first instance.
Meetings between Dr Sare and staff, including Dr Galanis, on 29 May 2014 and discussions and correspondence to follow in June and July 2014
[17] Refer Supplementary T-Documents ST9/33&34.
At the hearing, Dr Sare gave evidence that on 29 May 2014 he had a group meeting with staff about the restructure, followed by one-on-one meetings with staff, including Dr Galanis. The meetings took place in Canberra and Dr Sare said “they talked through the process”.
In that meeting, Dr Galanis requested a letter from Dr Sare which stated that he was to remain in his rotational position for another two years, as he had been unsuccessful in securing a position in the new structure.[18] Dr Sare said he explained to Dr Galanis that the “original Term Transfer agreement” (the letter from Mr Smith to Dr Galanis dated 13 July 2012) stated that the transfer was for two years with an option to extend it to three years by agreement. Dr Sare said Dr Galanis’s term transfer was due to expire in September 2014, so he was agreeable to extend it by an additional year to September 2015. Dr Sare’s file note of this conversation with Dr Galanis also included a note stating: “Interested in exploring the [Principal Scientist] role”.[19]
[18] Refer paragraph [6] of Dr Sare’s Statement.
[19] Refer Annexure “B” of Dr Sare’s Statement.
Dr Sare said that he had a further conversation with Dr Galanis on 27 June 2014, during which it was confirmed that Dr Galanis would remain in the AFSA position until September 2015.[20] Dr Sare said he discussed with Dr Galanis possible substantive roles that he could pursue, including one of the Principal Scientist positions. Dr Sare said that Dr Galanis stated that he wanted his relocation to Melbourne at the conclusion of his term transfer to be recognised. Dr Sare said he agreed that this would occur.
[20] Refer paragraph [7] of Dr Sare’s Statement.
During this conversation, Dr Galanis said that Dr Sare told him that he wanted to let Dr Galanis know that the letter referred to in paragraph [51] of these reasons for the decision “was coming” and that it would “state that [Dr Galanis] would be declared in excess and that it would be in [Dr Galanis’s] face”. Dr Galanis said Dr Sare told him that he wanted to make sure Dr Galanis “was ready for it”.
Dr Galanis said that he pointed out to Dr Sare that he did not live in Canberra. Dr Galanis said that Dr Sare looked surprised and that it appeared to Dr Galanis that Dr Sare had forgotten this. Dr Galanis said that he said to Dr Sare, “Now that you remember I’m on rotation, there is a clause in [the STP], which allows you to extend my rotational role for up to two years”.
Dr Galanis made a proposal to Dr Sare whether he should be permitted to perform unassigned duties for six months in Melbourne, when he finished his term transfer in September 2015 (Six Month Proposal). Dr Galanis said he told Dr Sare that he thought this would be consistent with the spirit of Clause 44 in the STP.[21] Dr Galanis said that Dr Sare said nothing in response. Dr Galanis said that when he pointed out Clause 44 in the STP to Dr Sare, “he didn’t argue it”.
[21] Refer paragraph [27] of these reasons for decision, which sets out Clause 44 of the STP.
At the hearing under cross-examination, Dr Sare said that at this time he did not deal with Mr Galanis’s Six Month Proposal. Dr Sare was asked whether he dealt with it at any time prior to his retirement and he said, “No”. Dr Sare accepted that he “didn’t explicitly respond to Dr Galanis” about this issue and he added, “Giving [Dr Galanis] that would not have been consistent with my role as change manager at the time, in dealing with unassigned staff”. Dr Sare was asked whether he left instructions with anyone else to deal with the issue [of the Six Month Proposal], to which Dr Sare answered, “No”. He also accepted that this issue was not dealt with in the letter sent to Dr Galanis as referred to in the paragraph below.
On 27 June 2014, Dr Sare sent a formal letter to Dr Galanis “to clarify [his] current situation and options for the future”. This letter stated (emphasis added):[22]
[22] Refer Annexure “D” of Dr Sare’s Statement.
…
As a result of not being selected to transfer to a substantive position in the new MSTC structure you will become formally unassigned on 1 July 2014. This means that you will be held in the “Residual Staff Pool” with your transition process managed by the Change Manager. Your Redeployment Case Manager will continue to assist you in looking for appropriate positions for reassignment.
As discussed in late May your priority is to find another substantive position whilst undertaking meaningful work. Over the next few months your Redeployment Case Manager will refer you to positions which may be suitable for you, help you to work out training or other opportunities and assist you to look broadly at all opportunities. I encourage you to take an active role in this process.
We also discussed a range of meaningful work which you could do and decided that the best outcome for yourself and for DSTO would be for you to work in the rotational position of [ASFA] for the period July 2014-September 2015. As a result you will be moved into that position for a period of 15 months to allow you to perform all functions associated with the role.
…
Towards the end of the 15-month period the Change Manager will review your case and assess whether reassignment to a substantive role is likely. Where reassignment is not likely the Change Manager will contact the Excess Delegate and request that you should be declared excess. If this is agreed you will commence a retention period and will be made an offer of VR within 12 weeks. There is further detail on this process paragraphs C1 to C3 of the [DECA], which outline the Defence Organisational Change Framework.
As an unassigned employee your employment situation will continue to be managed in accordance with the provisions outlined in References A and B. I again draw your attention to individual employees’ responsibilities for their own career management and active participation in reassignment processes.
I will perform the role of Change Manager until my retirement in August 2014. After that time a new Change Manager will be appointed. Both myself and the new Change Manager will be committed to assisting you through this process and will continue to pursue redeployment through the reassignment of duties within the Group as a high priority. Further, I assure you that your entitlements under References A and B will be correctly applied in this process.
If you need further clarification about this process you should contact your Case Manager, or if you have concerns about the work package please contact me.
At the hearing, Dr Galanis said that in this letter there was no mention of the relocation and who was going to pay for it or the allocation of meaningful work to Dr Galanis after the relocation. Dr Galanis said the letter did not mention the discussion that had taken place between him and Dr Sare on 29 May 2014.
On 27 June 2014 (at 12.14pm), Dr Galanis sent an email to Dr Sare to bring to his attention the letter Dr Galanis had received from Mr Smith at the time of his transfer to Canberra. In the email to Dr Sare, Dr Galanis stated (emphasis added):[23]
Just confirming this morning’s conversation, that if there is no gaining division for me at the end of the third term, my relocation to Melbourne still needs to be funded by DSTO somehow.
In addition, if there is no gaining division I will be relocating to Melbourne for personal carer reasons and there will still need to be a period to enable me to settle in to Melbourne. I don’t think we discussed it this morning, but you may recall that when we had our previous meeting at the end of May I proposed that we allow a further 6 months of ‘meaningful duties’ in Melbourne to allow me to relocate and ‘settle in’ to Melbourne. This is also consistent with the STP where it mentioned additional time being allowed for unassigned staff that had relocation issues. Hopefully, this won’t be the case, as I will be (and have already been) pursuing principal-scientist/redeployment opportunities over the next year or so.
However, the additional period needs to be allowed for just in case.
Please let me know if you agree with this, or if we need to discuss anything further.
[23] Refer T-Documents T10ae/146.
Dr Sare responded to Dr Galanis on the same day (27 June 2014 at 4.10pm) by email stating:[24]
I acknowledge your message below and the letter you received … outlining the conditions of your term transfer to the AFSA position. DSTO needs to honour the commitment given to you to relocate you at the conclusion of your further period as AFSA. That relocation does not guarantee that there will be a substantive position at the new location, and you would remain unassigned unless you have secured a substantive position in the meantime.
[24] Refer T-Documents T10af/148.
On 3 July 2014, Dr Galanis sent to Dr Sare the following email in response:[25]
Thanks for your acknowledgement below.
I spoke to Jo Morgan yesterday about putting in place the arrangements needed for my continuing in the role of AFSA for the additional term and the subsequent relocation as we have now agreed. I will also need to get in touch with CPAC regarding my accommodation allowances and expected relocation plans. Perhaps one way to get this started is for me to forward your two emails to Jo and cc you, so that the Program Office can put the arrangements in place.
Let me know if are happy for me to proceed in this manner and I will get the process started.
[25] Refer T-Documents T10ag/152.
On the same day Dr Sare responded by email to Dr Galanis stating:[26]
I am happy with your(sic) proceeding along the lines you have suggested.
[26] Refer T-Documents T10ag/152.
Dr Sare said that by this response he was referring only to the proposal with respect to arrangements for accommodation and expected relocation and that he was not referring to Dr Galanis’s Six Month Proposal.[27] Dr Sare’s evidence was that at no time did he agree to Dr Galanis’s Six Month Proposal.[28]
[27] Refer paragraph [11] of Dr Sare’s Statement.
[28] Refer paragraph [12] of Dr Sare’s Statement.
Dr Galanis gave evidence at the hearing that he took Dr Sare’s response to mean Dr Sare has agreed to everything suggested by Dr Galanis in that whole email thread, which included Dr Galanis’s Six Month Proposal.
Dr Sare retired and ceased work in August 2014
Dr Sare ceased employment at Defence in August 2014 due to his retirement. A new Change Manager was appointed, Dr Janis Cocking (Dr Cocking), Acting Deputy Defence Scientist, Strategy and Program.
Dr Galanis attended his treating general practitioner on 1 August 2014
Dr Galanis attended Dr Catriona Moxham (Dr Moxham), his treating general practitioner, on 1 August 2014. Dr Moxham recorded the following in her clinical notes:[29]
Scientist on secondment job uncertainty
Not sleeping overweight and stressed not doing enough exercise feeling desponjndent(sic) and tired and worried that will impact on job future
Epworth sleepiness scale 11.5
…
P for referral to kris kosky
For sleep study and 24 hour monitor
For bloods and rv after that
2 weeks off to regroup and increase ex and lose weight.
[29] Refer T-Documents T9a/55.
Letter to Dr Galanis from Mr Jim Smith on 25 September 2014
Mr Smith sent Dr Galanis a letter on 25 September 2014 which confirmed the extension of the term transfer and referred to matters relating to rental assistance.[30] Dr Galanis said there was no mention in that letter to the issue of relocation and that this caused him “quite a lot of concern”. Dr Galanis said he signed the letter as prompted to do so, but he added a note on it that it was be read in conjunction with the email from Dr Sare on 27 June 2014 (at 4:10pm).[31]
[30] Refer T-Documents T10af/150.
[31] Refer to paragraph [54] of these reasons for the decision.
Dr Galanis said he had a conversation with Mr Smith to ask him if he was aware of Dr Sare’s email to which he said he was not. Dr Galanis said Mr Smith told him he would need to wait until Dr Sare’s replacement commenced to discuss with her the issue of the additional six months of unassigned duties. Dr Galanis said his concern at that time was that he was still receiving letters from the Department, which said nothing about what would happen after the relocation took place.
Dr Galanis said he continued working during this period in August, September and October 2014.
Dr Cocking commenced in the role of the Change Manager in October 2014
In Dr Cocking’s Statement dated 2 June 2016 (Dr Cocking’s Statement), Dr Cocking said she did not commence in her role as Change Manager until October 2014 due to illness.[32] Dr Cocking said that:
There was no substantive handover, but I had read all of the correspondence between Dr Sare and the unassigned employees for whom he and I were responsible, including Dr Galanis. In addition Dr Sare’s assistant who worked alongside him during the time that he was the Change Leader then worked as my assistant.
[32] Refer paragraph [7] of Dr Cocking’s Statement - Exhibit “R2”.
Dr Galanis said that he had not dealt with Dr Cocking before she took on the role of Change Manager.
Dr Galanis gave evidence at the hearing that the first meeting he had with Dr Cocking took place in about late October/early November 2014, face to face, in Canberra. He said that at that meeting, he asked Dr Cocking if she was aware of what had been previously agreed and the emails referring to what was to happen at the end of the term after his relocation. Dr Galanis said that Dr Cocking said she had not seen the emails and she had not discussed it with Dr Sare at the handover. Dr Cocking’s response to Dr Galanis’s Six Month Proposal at that meeting was:
You are applying for the principal scientist position – let’s see how that goes – if you get that position, you don’t need to worry about it.
Dr Cocking agreed that she made a statement to this effect to Dr Galanis at this meeting. Dr Galanis stated that Dr Cocking’s suggestion had caused him considerable concern.[33]
[33] Refer paragraph [31] of Dr Galanis’s Statement.
Selection process to fill the new Principal Scientist positions at the end of 2014
At the end of 2014, as part of the DSTO organisational restructure, a selection process took place to fill the new Principal Scientist positions within the new structure.
Dr Cocking said that she had several discussions with Dr Galanis in relation to “future applications for Principal Scientist positions”. Dr Cocking said she discussed with Dr Galanis “how he could better demonstrate his suitability in the criteria required for such a position” and that she provided Dr Galanis with a one-page Position Description that would provide information to him about the evidence he might consider when “presenting their case”.[34]
[34] Refer paragraph [8] and Annexure A to Dr Cocking’s Statement.
In November 2014, Dr Galanis applied for a Principal Scientist position in the field of Human-In-The-Loop Simulation in the Aerospace Division.[35] The panel that was appointed to consider Dr Galanis’s application included Dr Cocking (as the Chair of the Panel), two Chiefs of Division and three Research Leaders from across the organisation (Panel).[36] Dr Galanis said the Principal Scientist positions were advertised some time in November 2014. He said that he followed the required process which was to spell out (to the Panel) a proposed program of work. This involved the candidates submitting a statement outlining proposed research and the practical benefits expected to arise from that research. He said he had to chase up the Chiefs of Divisions to discuss his research proposals.
[35] Refer paragraph [10] and Annexure “B” to Dr Cocking’s Statement.
[36] Refer paragraph [10] of Dr Cocking’s Statement. Research Leaders are one level above the level of Principal Scientists.

Dr Galanis said that the candidates were also required to participate in a panel selection interview. Dr Cocking said the same interview process applied to all applicants.[37] Dr Galanis said he was flown to Melbourne for this interview.
[37] Refer paragraph [11] of Dr Cocking’s Statement.
Dr Galanis said the Panel did not contact any of his primary nominated referees and instead, contacted persons who were not nominated referees. Dr Galanis said that it seemed to him that, “they were fishing”.
Dr Galanis was interviewed by the Panel on 21 November 2014.
Dr Galanis attended his treating general practitioner on 10 December 2014
On 10 December 2014 Mr Galanis attended Dr Moxham and reported to be feeling well, less stressed and less sleepy. At the hearing, Dr Moxham gave evidence that when she examined him, there had been a degree of improvement. She said that Dr Galanis had been “a little up and down. I expect that from someone with adjustment disorder. On that occasion, he told me he was feeling well”.
Outcome of selection process
The members of the Panel assessed Dr Galanis as “not recommended for assignment to a Principal Scientist position” as stated in the Panel Recommendation Report (Panel Report) which was approved by the Delegate on 10 December 2014.[38] The Panel’s justification for this assessment was stated in the Panel Report.
Candidates for Principal Scientist positions were notified of the outcome in January 2015 and individual feedback was provided to candidates
[38] Refer Annexure “B” to Dr Cocking’s Statement.
Dr Galanis was on leave from work from 10 December 2014 to 8 January 2015. Dr Cocking said she was on leave for one week following this period.[39] Dr Cocking said that none of the candidates for these positions were advised of the outcome of the selection process until January 2015, as the Panel had decided not to make that announcement before Christmas.[40]
[39] Refer paragraph [13] of Dr Cocking’s Statement.
[40] Refer paragraph [13] of Dr Cocking’s Statement.
Dr Cocking said that she advised Dr Galanis of the outcome of the Panel selection process after his return from leave. A “debrief” or feedback session took place in January 2015 between Dr Galanis and Dr Cocking.
Dr Cocking described Dr Galanis’s response to this notification as follows:
He did not take the news well and considered that the panel had got it wrong, as they obviously had not understood the science.
Dr Galanis gave evidence that he considered that he remained “rational” throughout the meeting and that he “did not display or get upset or whatever”. Dr Galanis said he was “disappointed” in the decision of the Panel, but he was not “distressed” by it. Dr Galanis stated:
I did express about possible conformation bias particularly with [Dr Cocking’s] feedback. I had published a book about a year ago. There were some co-contributors including a US and NZ scientist. [Dr Cocking] said, “we didn’t know what your contribution was”. I said, “you didn’t ask”. She said she removed it from consideration. There was no opportunity to address that question in the interview. I could have told them what my contribution was. I was the lead editor in it.
Dr Galanis attended his treating general practitioner on 30 January 2015
Dr Moxham saw Dr Galanis on 30 January 2015. Dr Moxham’s clinical notes stated:[41]
V stressed re divorcxe(sic) and finding a new job as position ending – told not successful round 3 and the process was unfair and bullying
..
As requested a month of(sic) to finalise divorce and seek counselling given beyond blue etc webnsites(sic)
…
[41] Refer T-Documents T9a/54.
At the hearing, Dr Moxham gave evidence that she thought the counselling on this date as referred to in her notes was related to Dr Galanis’s divorce at that stage. She said his divorce was “not a big issue” but he was “finalising or processing it”. Dr Moxham also said they discussed whether Dr Galanis should take some anti-depressant medication. She said it was agreed that, “it probably would not add anything but Dr Galanis could use them if he really needed them”.
Discussions in March 2015 between Human Resources (HR) department and Dr Cocking about a vacant position in Melbourne
On 31 March 2015, Ms Leisa Craig, HR Business Partner Team, Workforce Planning Branch, DSTO, emailed Dr Cocking to inform her that Mr Richard Bartholomeusz, Dr Galanis’s line manager, had been in contact with Ms Craig to advise that Dr Galanis was on personal leave. An observation was made by Ms Craig that the medical certificate submitted by Dr Galanis was on a compensation medical certificate, so it was likely that “a compensation claim would follow”. Ms Craig also informed Dr Cocking in this email as follows:
…
I have asked the medical case management team to respond to Richard’s request for early intervention assistance. I have also asked the PSSTeam to assist Richard in managing the situation holistically.
I thought it important to ensure you were aware of [Dr] Galanis’ absence in case there is a need to work through a medical case manager in interacting with [Dr] Galanis in relation to the unassigned process and consideration of future vacancies. I’ve also indicated to Richard that if a compensation claim comes through he will need to identify if there are MSTC Change related concerns raised and if so he will need to work with you to form a response.
…[42]
[42] Refer Annexure “C” to Dr Cocking’s Statement.
Dr Cocking responded to Ms Craig by email on the same day as follows:
Thanks Leisa.
It is good to know that George’s line manager is being proactive in thinking about the need to provide the right assistance for looking after George’s welfare. George has indicated his interest in a vacant position based in Melbourne within JOAD. He has indicated that he was not in a position to apply by the due date (which was 23 March). An(sic) second unassigned staff member has expressed an interest in the same position. I will follow this up with the acting Chief of JOAD when he returns from overseas. It might be necessary to hold this one position back until such time that George can make an application. I think it would be possible to assess the suitability of the other person and hold off making a decision.
Dr Cocking said that she “held the position for one month, but Dr Galanis did not make an application”.[43]
[43] Refer paragraph [16] of Dr Cocking’s Statement.
Correspondence sent to Dr Galanis’s supervisor on 9 April 2015
On 9 April 2015 Dr Galanis sent an email to his supervisor about the identification of a program of work for Dr Galanis for the purpose of a meeting with the rehabilitation care manager in relation to Dr Galanis’s intended return to work. The Tribunal notes that in this letter, Dr Galanis stated (among other things) as follows:[44]
The other thing that I think is contributing to my current anxiety reaction is the uncertainty that I have regarding time-frames that I will have as a “change affected” staff member. In my initial meeting with Ian, in his role as change manager, Ian talked about 1 year for unassigned staff starting from July 2014. Clearly this isn’t going to work for me if I am only just relocating in the near future. I foresaw this situation back in May last year and I reminded Ian that the MSTC plan allowed for up to two years where relcations(sic) were involved for change affected staff. Subsequently Ian wrote and email to me acknowledging the discussion and confirming that ‘DSTO would honour its relocation commitments’. I forwarded a copy of Ian’s email to Janice as Janice told me that Ian had not discussed it with her in his hand-over. When you are having discussions with [the rehabilitation provider], Lynn and others it would help if you kept in mind the two year time frame and that my move to Melbourne is a permanent relocation. That meas(sic) I will be moving twice (into temporary rental and then from there to a house that I buy) and so I need enough time to make both those moves and get back on my feet in my new permanent residence before there is any change to my employment status. So we are talking of time-frames similar to the whole of a term transfer involved in being an [Scientific Adviser]—the reason I say that is that DSTO does in fact plan out its staffing situations over a two year time-frame and so it is quite reasonable for me to expect some commitment from the organisation for the next two years following my relocation.
[44] Refer Supplementary T-Documents 12/45.
Dr Galanis attended his treating general practitioner in April and early May 2015
The Tribunal notes the clinical notes of Dr Moxham relating to a consultation with Dr Galanis that took place on 13 April 2015:[45]
With case manager
Discussed a rtw plan along lines of interim job and then rtn to melbourne and write a book – needs a formal job offer and equivalent salary.
Has been fine except that the difficult staff have called him and given him a hard time and feelings of dread, nausea and insomnia have returned
Seeing Kris Kosky tomorrow and rv 20^th hiopefully(sic) with some sort aof(sic) plan
Richard his line manager is being v helpful and has some ideas of jobs he could do
Not capable at present of presenting in meetings at high levels with chief airforce etc
[45] Refer T-Documents T9a/54.
The Tribunal notes the clinical notes of Dr Moxham relating to a consultation with Dr Galanis that took place on 20 April 2015:[46]
For wc cedrt(sic) – v anxious regarding future not had the converstatio0n(sic) that needs to have regarding a future plan so continue to love(sic) with the uncertainty and worried t6hat(sic) all the he will be offered is a demotion. Frustrated that moved here to Canberra with the hope of further promotion all for nothing. Dana rehab manager is working on suitable duties and a plan for the future but really this needs to occur face to face with guy donw(sic) in mELBOURNE. IS TO see a psychiatrist organised by the work palce(sic). See in 2 weeks if the paperwork is done then can rtw if not done then cant(sic)
[46] Refer T-Documents T9a/54.
The Tribunal notes the clinical notes of Dr Moxham relating to a consultation with Dr Galanis that took place on 4 May 2015:[47]
No meeting no communication with work so no rtw
Has not submitted wc – it is written and so ready for submission
Dana will organise a meeting and a way forward
MC changed for another 2 weeks
Seeing Kris wed
Seen independent psychiatrist – didn’t enjo0y(sic) it as she didn’t empathise
[47] Refer T-Documents T9a/54&55.
Dr Galanis made a claim for workers’ compensation on 8 May 2015
On 8 May 2015, Mr Galanis made a claim for compensation under s 14 of the SRC Act for “adjustment disorder with anxiety and depression and post-traumatic stress reactions relating to attending work”.[48] Dr Galanis stated on the form that he first noticed his condition on 25 July 2014 and first sought medical treatment about it on 1 August 2014. On the claim form, Mr Bartholomeusz stated that Dr Galanis first notified the Department of his condition on 19 March 2015.[49]
[48] Refer T-Documents T4.
[49] Refer T-Documents T4/31.
In his statement dated 8 May 2015 attached to the claim form, Dr Galanis stated:[50]
[24] I have been on a term transfer in the role of [AFSA] located at the Russell Offices in the ACT since September 2012. The term transfer was for a period of 2 years after which I was to be relocated permanently to Melbourne. I believe my performance in the role of [AFSA] has been excellent and I have always had the respect of the senior leadership team in the Air Force (up to Chief and Deputy Chief of Air Force) as well as in my line management within the DSTO Program Office where I have been treated as a highly experienced and valued member of the team. I have also consistently been assessed as fully effective and higher throughout my more than two decade career in DSTO. I have also had an excellent performance track record in my career prior to DSTO. This claim is therefore not related to a performance issue.
...
[26] I believe that my injury had its origin in the formal letter that I received on the 27^th June 2014 and my Change Leader’s response to my concerns with the letter. The letter indicated that my term-transfer would be extended until September 2015 and if I was still unassigned at that time I would be declared redundant. However the letter did not indicate any commitment on DSTO’s part for my relocation at the end of my term transfer, neither did it indicate support for my permanent relocation to Melbourne after the term transfer. I subsequently rang my Change Leader (located in Melbourne) after I received the letter and he admitted that there had been an omission on DSTO’s part and they had forgotten to consider the fact that I was not intending to live in Canberra permanently, but he did not want to change the letter because “the letter was prepared by the lawyers” and he did not want to “interfere with a legal document”. The reluctance by my Change Leader to go back to the HR and legal department to fix the letter left me in an extremely difficult position, as I was given the impression that that DSTO Leadership was unwilling to formalize the practicalities regarding my future hence leaving me with little ability to plan my financial or social future beyond September 2015.
My Change Leader retired in August 2014 and his successor took up the role a few months later. In my initial discussion with the new Change Leader in November 2014 I discovered that she was not aware of the relocation issues I had raised with her predecessor. I was left with the impression that my situation had not been part of the handover-takeover in her taking up the new role. This apparent lack of consideration for my requirements, and the lengthy period my requirements had been neglected further exacerbated by uncertainty relating to my future.
…
[50] Refer T-Documents T4/32&33.
Dr Galanis attended his treating general practitioner on 18 May 2015
The Tribunal notes the clinical notes of Dr Moxham relating to a consultation with Dr Galanis that took place on 18 May 2015:[51]
With new case manager – a meeting organised for tomo0rrow(sic)
Psychiatrist report agrees more or less with my diagnosis and treatment plan and that things will resolve if there is a plan – seems to things are on their weay(sic)
Di8scussed(sic) the role of ssri’s if there were to be no resoluition(sic) but only if anxiety getting in way or pains – he things it is not there yet
P sees in a month or earlier – is getting legal advice re contracts also
[51] Refer T-Documents T9a/53.
Communications between Dr Cocking and Dr Galanis between January 2015 and June 2015
Dr Galanis said he had no further contact with Dr Cocking until June 2015. He said that once he ceased attending for work, his supervisor called him about once a month and that after he saw Dr Cohen, there was a meeting with the rehabilitation provider to discuss a return to work plan.
Communications between Dr Galanis and Dr Cocking in June 2015
On 12 June 2015 Dr Cocking informed Dr Galanis during a conversation between them that there was no agreement in place to allow Dr Galanis to perform six months of unassigned duties after his relocation to Melbourne.[52] Dr Galanis questioned this with Dr Cocking based on what he considered to be the agreement “from Dr Sare’s email”. Dr Cocking told Dr Galanis that she had interpreted the email to mean that Dr Galanis was to remain unassigned while he was in Canberra, not after his return to Melbourne. Dr Cocking undertook to Dr Galanis to check this with Dr Sare (on 17 July 2015).[53]
[52] Refer paragraph [38] of Dr Galanis’s Statement.
[53] Refer paragraph [39] of Dr Galanis’s Statement.
Dr Galanis stated:[54]
I found that attempt at spinning an interpretation out of a poorly written email to suit her own purposes rather disturbing and felt I could no longer trust anything that was written in emails from DSTO/G senior management.
[54] Refer last sentence of paragraph [41] of Dr Galanis’s Statement.
Following that conversation, Dr Cocking wrote to Dr Galanis on 12 June 2015 to confirm the “options” offered to Dr Galanis for his return to work, which included:[55]
(a)assignment to one of two S&T6 positions in the Aerospace Division to be based in Melbourne;
(b)an opportunity to apply for an “upcoming” vacant S&T7 position, Group Leader Helicopter Systems Effectiveness in Aerospace Division to be based in Melbourne;
(c)an opportunity to apply for a vacant S&T7 Group Leader position in JOAD for Aerospace Systems Analysis;
(d)resumption of the “current meaningful work as AFSA” in Canberra until September 2015;
(e)undertake work as an S&T6 in the Program Office in a work program in Canberra laid out by Dr Galanis’s line manager.
[55] Refer Annexure “E” to Dr Cocking’s Statement.
Dr Galanis said that this was the first time he had heard about the vacant S&T7 positions based in Melbourne. In Dr Cocking’s email dated 12 June 2015, she informed Dr Galanis that if he applied for either of the S&T7 positions in Melbourne, this would require him to go before the respective selection panels for those positions as part of the application process.
Dr Cocking in her email dated 12 June 2015 advised Dr Galanis as follows:
…
As already agreed in emails between Ian Sare and yourself, DSTO has agreed to relocate you to Melbourne. While Ian’s email acknowledges your message and the letter from Jim Smith outlining the conditions of your term transfer Ian does not state that he agrees to your proposal for a further six months of meaningful duties. In addition to Ian writing that DSTO needs to honour the commitment to relocate you at the conclusion of your further period as AFSA, his email states “That relocation does not guarantee that there will be a substantive position at the new location, and that you would remain unassigned unless you have secured a substantive position in the meantime.”
If you agree to the option of filling a substantive S&T 6 position you will retain the salary at S&T 7 for a period of twelve months. You would then drop back to the salary of a person at S&T 6. I am not in a position to say that after a period of twelve months DSTO would then offer you a VR. I do not have the authority to promise this.
…
The Department provided a response to Comcare in relation to Dr Galanis’s compensation claim on 17 June 2015
The Department provided a letter dated 17 June 2015 to Comcare, authored by Ms Amanda Hayes, Directorate of Early Intervention and Support, attaching Employer Statement of Facts signed by Dr Cocking on 15 June 2015 (Employer Statement) and relevant agency documents.[56]
[56] Refer T-Documents T10 and T10a.
In the Employer Statement, Dr Cocking summarised Dr Galanis’s claim as follows:
DSTO did not indicate commitment or support to relocate [Dr Galanis] at the end of this term transfer and DSTO showed a lack of consideration regarding his situation for a lengthy period.
Dr Cocking also acknowledged that Dr Sare’s formal letter to Dr Galanis on 27 June 2014 did not address Dr Galanis’s relocation to Melbourne after the term transfer, but she said Dr Sare’s email on the same date did address that issue. In the Employer Statement, Dr Cocking stated (emphasis added):
13. The original Change Manager, Dr Ian Sare, retired in August 2014 and a new Change Manager, Dr Janis Cocking, was appointed. A comprehensive handover did occur and there were no outstanding actions in relation to the relocation as this had already been agreed between Dr Galanis, his line management in the DSTO Program Office and the Change Manager.
14. I acknowledge that the very nature of being unassigned does create a level of uncertainty for employees, however, DSTO has provided and continues to provide a high level of support to Dr Galanis throughout the change activity. This support includes: the assignment of a dedicated Change Manager and Redeployment and Redundancy Case Manager to assist Dr Galanis with reassignment; access to training, financial advice, the Employee Assistance Program; and ongoing support from line management.
15. As part of the process of ensuring staff have opportunities to apply for substantive positions all unassigned staff were given another opportunity to apply for Principal Research Scientist positions in November 2014. All applications received were assessed and interviewed by an independent panel of scientists. This opportunity was only for the unassigned staff. Two unassigned staff were successful in gaining positions as Principal Research Scientist. Unfortunately Dr Galanis was unsuccessful. He was advised of this outcome by the Change Manager when he returned from leave in January 2015.
…
17. …
I consider DSTO’s Change Activity to be an administrative process that that been implemented and continues to be implemented in a reasonable manner, in accordance with Defence policy.
18. It is unfortunate that Dr Galanis is unwell. I would, however, like to take this opportunity to reiterate that in my opinion DSTO has acted in accordance with the principles of reasonable management action and Departmental policy and procedures. Furthermore, DSTO has acknowledged and wherever possible (within operational requirements) responded in support of Dr Galanis’ personal circumstances and requests in a timely manner.

At the hearing, Dr Cocking gave evidence that this document was drafted in part by a staff member from the Human Resources department. Dr Cocking said she was unable to say which parts of the document were drafted by her and which parts of it were drafted by the HR staff member, except that the parts which made reference to provisions of the SRC Act were not drafted by her.
Correspondence between Dr Galanis and Dr Cocking resumed on 23 June 2015
Dr Galanis responded to Dr Cocking’s email on 12 June 2015 (referred to in paragraph [97] of these reasons for the decision) by email on 23 June 2015.[57] Dr Galanis stated that he did not agree with Dr Cocking’s interpretation of Dr Sare’s email on 27 June 2014 and explained his differing interpretation as to what it meant. Dr Galanis stated:
[57] Refer Annexure “E” to Dr Cocking’s Statement.
I subsequently accepted the offer of continuing the AFSA role until mid-September 2015 and also extended my stay in Canberra because of the conversations with Ian as well as his email. If Ian had plainly stated, as you have done, that he did not accept my proposal I would have continued the negotiation in a different way. For example, I would have proposed relocating to Melbourne immediately and commute to Canberra as required to perform specific Canberra based AFSA duties. However, Ian did not refuse my offer and so to interpret his intent differently now would be detrimental for me given the course of action I took last year.
So I ask that you reconsider your predecessor’s email and read it in the spirit that it was intended, perhaps it was a reluctant acceptance, but nevertheless it was an acceptance. In that light, and to avoid a dispute process, I make the following suggestion:
·That you approve my relocation to Melbourne and that the relocation process commence as soon as practical.
·On relocation to Melbourne that I be released from the AFSA position.
·That I remain unassigned at the S&T 7 level in Melbourne for 6 months from the date of completion of settling in to Melbourne.
·That non-AFSA specific elements of my current PFADS be considered as reasonable meaningful duties.
·That I am allowed to use the 6 months to assess my circumstances in Melbourne so that I am able to make a rational decision regarding taking a VR or filling a substantive S&T 6 level position.
Dr Cocking’s decision on 11 August 2015 to provide Dr Galanis with three months of duties after his relocation to Melbourne
The Department sent a letter dated 11 August 2015 to Dr Galanis to confirm that he would be provided with three months of duties after relocating to Melbourne. Dr Cocking gave evidence at the Tribunal had she had made this decision.
Dr Galanis’s move to Melbourne in September 2015
Dr Galanis moved to Melbourne in September 2015. Dr Galanis visited his Canberra-based treating general practitioner and psychologist in November 2015. He said he was advised by them that the best option as far as his health was concerned was to take a voluntary redundancy. Dr Galanis advised the Department of his intention to take a voluntary redundancy at the end of November 2015. A redundancy offer was made and accepted by Dr Galanis.
Dr Galanis’s employment with the Department ended on 9 March 2016
The last day that Dr Galanis attended for duties at the Department was 28 January 2015.[58] His employment with the Department formally ended on 9 March 2016, following a period during which Dr Galanis took sick leave, annual leave, long service leave and leave without pay.[59]
[58] Refer paragraph [6] of the Statement of the Applicant dated 9 September 2016 (Dr Galanis’s Statement).
[59] Refer paragraph [46] of Dr Galanis’s Statement.
Comcare initially accepted Mr Galanis’s workers compensation claim
On 9 July 2015, Comcare initially accepted Mr Galanis’s claim under s 14 of the SRC Act and recorded the injury as: “an adjustment reaction with anxious mood”.[60] In Comcare’s determination, the decision-maker stated that he was satisfied that:
(a)Mr Galanis suffered from an adjustment disorder with anxiety;
(b)Mr Galanis’s employment contributed to his condition to a significant degree; and
(c)Mr Galanis had provided notice of his injury to the Department as soon as practicable after he became aware of his injury under s 53 of the SRC Act.
[60] Refer T-Documents T12.
Comcare’s decision-maker deemed the date of injury to be 1 August 2014. This decision-maker considered whether the claimed condition resulted from reasonable administrative action to examine whether the exclusionary provision under subsection 5A(2) of the SRC Act applied to Dr Galanis’s claim. In doing so, the decision-maker considered the “actions” to be the restructuring of the organisation (i.e. DSTO) and was satisfied that because those actions were not specific to Mr Galanis but rather, an organisational change as a result of a review, they were not administrative action and consequently, the exclusionary provision did not apply.
Following a reconsideration, Comcare revoked its earlier decision to accept liability for Mr Galanis’s claim
On 28 August 2015, the Department requested that Comcare reconsider its determination to accept Dr Galanis’s claim, on the basis that the exclusionary provision under subsection 5A(2) of the SRC Act applied to Dr Galanis. The Department considered that there were a number of specific actions taken by DSTO in relation to Dr Galanis’s employment that could be appropriately characterised as reasonable administrative action taken in a reasonable manner in respect of Dr Galanis’s employment.[61]
[61] Refer T-Documents T17.
On 15 October 2015, Dr Galanis sent an email to Comcare and stated that the “root cause of his condition” was not the fact that he had not gained a substantive position in the new DSTO structure, but instead it was:
(a)the lack of consideration about his term transfer in Canberra; and
(b)the lack of any plan about how the transition in moving from Canberra to Melbourne was to take place should he not gain a substantive position before the end of his extended transfer.
Comcare reconsidered its earlier determination and on 4 November 2015, decided to revoke it. Comcare’s review officer found that “it was [Dr Galanis’s] specific employment status due to the organisational restructure which included receiving the letter of 27 June 2014 and subsequent formalisation his entitlements (being classified as “unassigned” from 1 July 2014) that contributed, in part, to [his] claimed condition”. The review officer considered that;
(a)there was no evidence before her indicating that the level of information provided to Dr Galanis prior to 1 August 2014 was unreasonable; and
(b)that the evidence before her indicated that discussions were held with Dr Galanis on an individual basis regarding the duration of his rotational position and arrangements regarding relocation.
Comcare accepted the Department’s submission that the exclusionary provision under subsection 5A(2) of the SRC Act applied to Dr Galanis with respect to his claimed condition. Consequently, Comcare denied liability under s 14 of the SRC Act.[62]
[62] Refer T-Documents T32a.
ISSUES
To determine whether Mr Galanis was entitled to compensation under s 14 of the SRC Act, the issues for determination by the Tribunal are as follows:
(a)Did Mr Galanis suffer an ailment as defined in s 4(1) of the SRC Act?
(b)Was the ailment contributed to, to a significant degree, by Dr Galanis’s employment and consequently, a disease under s 5B of the SRC Act?
(c)If so, was Dr Galanis’s disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment and thereby excluded from the definition of an injury under s 5A(1) of the SRC Act?
(d)If this exclusion did not apply, did Dr Galanis’s injury result in impairment entitling him compensation under s 14 of the SRC Act?
LEGISLATION
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in subsection 4(1) as having the meaning given in s 5A of the SRC Act as set out below (emphasis added):
(1) In this Act:
"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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee's performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c)a reasonable suspension action in respect of the employee's employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
The term disease is defined in s 5B of the SRC Act:
(1) In this Act:
"disease " means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
The term ailment is defined in s 4(1) of the SRC Act as meaning:
ailment means and physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
FURTHER EVIDENCE PROVIDED BY DR SARE
Dr Sare’s evidence was that he was appointed as the Change Manager in December 2013 and was responsible for assisting a large number of staff during the transition.[63] Dr Sare gave evidence at the hearing as follows:
[63] Refer Exhibit “R1”.
(a)his responsibility was to lead the overall process of organisational change and staff transition issues;
(b)his primary concern was to ensure that all of the unassigned staff were appropriately dealt with in accordance with the DECA processes and on top of that, personally, he was concerned to see that each person received “a proper hearing”. He said he ensured that he worked with unassigned staff as much as possible to help them to move forward, either to secure another position or to leave the organisation, if they desired to do so;
(c)he said he had about 30 to 40 staff at S&T7 level and about 50 to 60 staff at S&T8 level and all of them were required to express their preference for up to three substantive positions. They went through an interview process and those who were left over became “unassigned” staff;
(d)about 10 to 12 the S&T7 level and a smaller number at the S&T8 level were in rotational positions at the time the change took effect;
(e)he was essentially the “decision making authority”, working very closely with the DSTO leadership team and his superior. He said he was regularly reporting his discussions with the individuals to the leadership team. He said he was given the authority to make decisions and to give effect to those decisions;
(f)there were no other people who needed to make the decision about Dr Galanis’s request for six months of meaningful duties following his relocation to Melbourne. Dr Sare said it was up to him to make that decision. He said, in evidence, that he did not consider it appropriate [to accept Dr Galanis’s Six Month Proposal], given the way the change process was handled and periods of time that the staff who were unassigned were given to find meaningful work. He said Dr Galanis was “given a longer time, probably longer than any other person”. He said that Dr Galanis had been given 15 months to finish the term transfer so he considered giving him a further six months would have been entirely inconsistent with the way in which he had been dealing with all other affected members of staff. He said that most of them had to “make a decision” within six months;
(g)he said he did not consider Dr Galanis to be in a unique position because he was in a rotational position. He said it was unique in that he wished to relocate to a place, which was not his place of origin prior to the transfer, but otherwise he said Dr Galanis’s position was not different in any other sense;
(h)Dr Sare accepted that he was silent on the issue of the extra six months. He said he could not recall why he did not explicitly put it in his email response that he did not accept Dr Galanis’s six month proposal;
(i)he said that he could not recall saying to Dr Galanis that he was not prepared to change the wording of the 27 June 2014 letter because the lawyers had prepared it and he was not prepared to meddle with it. He said the letter was not prepared by lawyers but instead it was prepared by him in consultation with the relevant human resources part of DSTO. He said it was “a letter, to a degree, common to any unassigned member of staff”;
(j)when Dr Sare was the Change Manager, he said he prepared “brief summaries of his discussions with the unassigned staff” and “strings of emails”. He said his Executive Officer had access to them and Dr Sare had asked her to ensure that Dr Cocking had access to all of those documents. Dr Sare said he could not recall what issues he made reference to in his notes about Dr Galanis that he later provided to Dr Cocking. He said he provided a table which included in it a status report for each unassigned employee. When questioned, Dr Sare said that those tables had not been placed into evidence. The Tribunal called for production of those documents and they were subsequently produced;
(k)he said that to his knowledge, no exploration was made of finding a position at Dr Galanis’s level in other science-based organisations within the APS. He said the first objective was to help secure it with the DSTO. He said that “if staff wished, we could look more broadly than Defence”. He said, “beyond that, we could have helped them”, although he explained that “staff being unassigned, only ran for a few weeks before I retired”. He said that each unassigned employee was assigned to a redeployment case manager who would have worked with them to look for a vacancy “if the unassigned staff member wished them to do so”;
Dr Sare gave evidence that he treated all unassigned staff the same way regardless of whether they were substantive or rotational. Dr Sare stated:
In each case, my primary objective was to help them to secure a substantive position. There were three different routes that could be considered. One was for them to apply for any substantive positions that subsequently arose during their period of assignment. They could apply for Principal Scientist’s position as there were some additional vacant Principal Scientist positions. Staff could put their hat in the ring. The third pathway was redundancy by mutual consent. Every unassigned member of staff had those options explained to them as part of me trying to help them move forward.
Dr Sare that he interacted with Dr Galanis as part of discharging that function. He said he knew Dr Galanis previously as he was an AFSA and Dr Galanis fell into a management structure beneath Dr Sare’s particular position.
Dr Sare said that he had determined that Dr Galanis would continue in the role of AFSA for 15 months, but had not foreseen beyond that, other than he would be relocated back to Melbourne. Dr Sare was referred to his email to Dr Galanis on 27 June 2014 (at 4.10pm) and he accepted, when questioned at the hearing, that when he stated DSTO needs to honour its commitment, it would have been clearer if he had worded it, “DSTO will honour its commitment”. Dr Sare said that the intention was that it was a commitment they were going ahead with.
FURTHER EVIDENCE PROVIDED BY DR COCKING
Dr Cocking considered, as set out in her statement dated 15 June 2015, that Dr Sare’s response to Dr Galanis on 3 July 2014, had clearly demonstrated that “DSTO’s leadership” had addressed Dr Galanis’s concerns regarding his relocation to Melbourne in a timely manner and therefore, there was “no long period of uncertainty”. Dr Cocking also stated as follows:
(a)a comprehensive handover occurred and there were “no outstanding actions” in relation to the relocation as this had already been agreed between Dr Galanis, his line management in the DSTO Program Office and the Change Manager;
(b)DSTO provided a high level of support to Dr Galanis throughout the change activity;
(c)there were five Principal Scientist positions. Only two of the candidates for those positions were successful in “competing to the standard required for this position”.
(d)DSTO had acted in accordance with the principles of reasonable management action and Departmental policy and procedures. Furthermore, DSTO had acknowledged and wherever possible (within operational requirements) had responded in support of Dr Galanis’s personal circumstances and requests, in a timely manner.
A further statement of Dr Cocking dated 17 January 2017 was lodged with the Tribunal.[64] In this statement, Dr Cocking stated that all of her actions with respect to Dr Galanis were in compliance with the Business Case and the STP. Dr Cocking provided detailed evidence in this statement about the process of selection for the Principal Scientist positions and the process of interviewing Dr Galanis for one of those positions.
[64] Refer Exhibit “R3”.
At the hearing, Dr Cocking confirmed that she had interacted with Dr Galanis on two occasions – the first in relation to the selection process for Principal Scientist positions and the second in relation to the issue of Dr Galanis’s relocation to Melbourne.
Dr Cocking’s evidence in relation to the selection process for the Principal Scientist position
In relation to the selection process for filling the Principal Scientist positions in the new structure, Dr Cocking said that “they called for a panel across all of the organisation to address the range of science and technological expertise that potential applicants were likely to present”.
Dr Cocking said that when she first spoke to Dr Galanis, the Principal Scientist positions in the second round were limited to unassigned staff. She said it was the first opportunity for those unassigned staff to find a substantive role. She said she treated Dr Galanis the same as the other staff when providing guidance as to how to best present their evidence in support of their application.
Dr Cocking said that in the development of the strategy plan, they had made special provision for scientists at the S&T7 level. She said there were group leader roles, who were scientists but who were to manage a group; special scientific advisers; and other development roles. Dr Cocking said the Principal Scientists were scientists and they had made provision for ten across the whole organisation. Dr Cocking said they had to be “world class”. Dr Cocking said the expectation for them was as follows:
They would develop science in area really relevant to Defence; to be able to mentor staff and build capacity within DSTO so there was a pool of people to provide advice to the government needed in the future. Broader academic community. They had to have communication skills as well.

The reasonableness of Dr Galanis’ request is further supported by the provisional tenor of the wording used by Dr Sare in his email to Dr Galanis, namely, that the Department “would need to” honour its previous commitment. This was one stop short of confirming to Dr Galanis that the Department would in fact honour that commitment.
Dr Sare, upon coming to an awareness that he was going to retire half way through a major organisational structure, that a different person would succeed him, and that it was not intended that his successor would shadow Dr Sare at any time prior to his departure, took no active step, when he should have done so, to ensure that his successor was aware of the ‘relocation commitment’.
Dr Sare should have, but did not, ensure that he had mentioned it to his successor Change Manager during the handover process. Further, the Tribunal considers that Dr Sare should have, but did not, do at least one or more of the following things to protect against Dr Galanis receiving ‘mixed messages’ from the Department about this commitment prior to his departure:
(a)revisited and complied with Dr Galanis’s request for the reference to the relocation commitment (and an acknowledge that he was on a term transfer) to be recorded in a formal letter to Dr Galanis and copied in the successor Change Manager and Dr Galanis’s line manager;
(b)sent an email to his successor and Dr Galanis’s line manager clearly advising them that this commitment had been made to Dr Galanis; and
(c)incorporated a clear reference to this commitment, and the fact that Dr Galanis was on a term transfer, in his handover notes to his successor.[80]
[80] Refer to paragraph [145] of these reasons for decision.
At the time that Dr Galanis had lodged his claim in May 2015, he had still not received formal written confirmation or a Minute from the Department to the effect that it would pay for his relocation to Melbourne. This was only provided some three months after Dr Galanis lodged his claim by Dr Cocking in her letter to Dr Galanis dated 11 August 2015. The Tribunal has also considered that it appeared from the evidence that the usual operating environment within the Department was to record its decisions in letters or in a minute, before they were to be actioned. This was the case with the decisions affecting employees arising from the change processes in general. As a further illustration of this, the Tribunal also noted a demand made in September 2014 by a Relocation and Lateral Officer, Specialist Personnel Administration of the Department to the EO Program Office, DSTO to provide it with a “defined minute” recording precisely what type of transfer Dr Galanis was on, before any rental assistance payments would be made or any further claim progressed.[81] This demonstrates that the Department’s own internal standard was to require this level of formality in its dealings with each other.
[81] Refer T-Documents T10/35.
The Tribunal considers that in the circumstances of this case, Dr Galanis’s request for timely formal written confirmation about whether the Department would pay for the relocation to Melbourne was reasonable. Without such clear indication, Dr Galanis was prevented from knowing with certainty what would happen at the end of his term transfer and to plan his life accordingly.
The Tribunal considers that Dr Sare’s refusal to confirm this commitment by the Department by amending the 27 June 2014 letter, or to record this commitment in a further letter from Dr Sare to Dr Galanis, was unreasonable. By the time Dr Galanis had decompensated, he had been left waiting for a significant period of time, approximately one year. Understandably, Dr Galanis became progressively unsettled when Dr Sare retired from the Department and his successor and line manager indicated they knew nothing about Dr Sare’s exchange of emails with Dr Galanis about this issue, until Dr Galanis brought them to their attention.
The Tribunal concludes that this action was not a reasonable administrative action taken in a reasonable manner action. Consequently, this action did not give rise to the exclusion under s 5A of the SRC Act applying in this case.
FOURTH ADMINISTRATIVE ACTION: Second Round Selection Decision
The Second Round Selection Decision undertaken in December 2014 took place after a panel selection process and ended with a discussion between Dr Galanis and Dr Cocking, as the Chair of this selection panel, on about 21 January 2015 to notify Dr Galanis of the outcome of this process.[82] Comcare contended that this event caused Dr Galanis to decompensate. A primary focus of the Respondent’s evidence sought to justify the process adopted and the outcome reached by the Department.
[82] Refer to paragraph [147(c)] of these reasons for decision.
Dr Galanis contended that while he was disappointed that he was not successful in being selected for a Principal Scientist position, he was not distressed by this event. Dr Galanis gave evidence that he considered the selection process conducted by the panel as “appalling” and “flawed”, and that he “did not feel listened to”, but he did not seek to challenge it and contended that it was not the cause of his distress.[83]
[83] Refer to paragraph [36] of Dr Galanis’s Statement.
The medical evidence in relation to the impact on Dr Galanis of this administrative action was murky. Although Dr Galanis was adamant that this event did not cause him distress, Dr Moxham made references in her clinical notes and reports to suggest it had done so.
Dr Galanis’s treating psychologist, Ms Kosky, also made the following statements in her report dated 10 February 2015, namely, that:
His stress and resulting depression and anxiety were largely triggered by his employment uncertainty and continuing difficulties following his marriage breakup.
…
Following very negative feedback from a job interview late last year he has had difficulty managing his strong feelings of rejection and anger.
The Tribunal considers that the first of those comments by Ms Kosky was ambiguous, as it may have been a reference to employment uncertainty arising from not being assigned or selected to a substantive position or it may have been employment uncertainty because he was unable to secure a written commitment about payment for his relocation and what was to happen afterwards, or both.
In relation to Ms Kosky’s second comment, Dr Galanis contended that this was Ms Kosky’s interpretation of the situation and how she would have reacted to the events in the workplace but did not reflect how Dr Galanis was feeling or had reacted to them. Ms Kosky was unavailable to appear as a witness to be tested on her evidence as contained in the report dated 10 February 2015, which diminished its probative value, given the ambiguities that arose from the way Ms Kosky’s comments in the report were expressed.[84]
[84] The Tribunal was informed that Ms Kosky was overseas at the time of the hearing.
Dr Moxham was called as a witness at the hearing and her evidence was tested. The Tribunal found it extremely difficult to accept the evidence of Dr Moxham because it became apparent to the Tribunal at the hearing that many of Dr Moxham’s statements in her reports and notes were based on Dr Moxham’s own interpretation of events or her reaction to the events, or in response to Departmental correspondence that was shown to her during the consultations by Dr Galanis. In this regard, the Tribunal has taken into account the matters outlined in paragraphs [161], [162] and [163] above. The Tribunal was not satisfied that Dr Moxham’s reports or notes could be accurately connected to Dr Galanis’s reaction or attitude to those events and related correspondence, which was critical for this Tribunal to consider in determining the issue of causation.
The Tribunal does not accept that Dr Moxham’s reports and clinical notes or Ms Kosky’s report, offered support for Comcare’s contention that this action was a cause of Dr Galanis’s ailment. The Tribunal preferred the evidence of Dr Galanis in this regard. In particular, the Tribunal accepts the evidence of Dr Galanis as set out in paragraph [152] and [155] of these reasons for the decision. The Tribunal finds that Dr Galanis was disappointed and most likely significantly so, by the outcome of the selection process and the way it was conducted. However, the Tribunal finds that it did not cause distress to Dr Galanis and did not cause him to decompensate.
The Tribunal concludes there was no evidence to support a finding that Dr Galanis would not have suffered his ailment had the Second Round Selection Decision (and process leading up to it) not been taken by the Department. Consequently, the Tribunal finds that Dr Galanis did not suffer his ailment as a result of this event. Consequently, there is no need for the Tribunal to consider whether or not this action was reasonable and conducted in a reasonable manner.
The Tribunal concludes that this action did not give rise to the exclusion under s 5A of the SRC Act applying in this case.
FIFTH ADMINISTRATIVE ACTION: Delayed response to Dr Galanis’s Six Month Proposal
When Dr Galanis was notified on 29 May 2014 that he had not been assigned to a substantive position within the new structure, he sought confirmation from the Department about what would happen to him at the end of his term transfer, including whether he would be allocated meaningful duties following his relocation to Melbourne. On 27 June 204, Dr Galanis made the Six Month Proposal to Dr Sare – see paragraph [49] of these reasons for the decision. The Department did not provide a substantive response to this request at the time it was made, when Dr Galanis raised the issue again with Dr Cocking in October 2014 or subsequently at any time before May 2015 when Dr Galanis lodged his claim for workers’ compensation.
Causal link
Based on Dr Galanis’s evidence, in particular, the evidence as set out in paragraphs [152] and [155], and the medical evidence referred to in paragraphs [167] and [170], the Tribunal is satisfied that the delay in the Department responding to Dr Galanis about this issue for a period of approximately nine months, in the circumstances that existed at that time, was a cause (together with the Department’s delay in providing Dr Galanis with formal written confirmation about whether the Department would pay for his relocation – see above) of Dr Galanis’s ailment. The Tribunal concludes that Dr Galanis would not have suffered the ailment had a response been provided to Dr Galanis by the Department within a much shorter time frame, after he had first made the Six Month Proposal to Dr Sare in June 2014 and later, to Dr Cocking in October 2014.
Consequently, the Tribunal finds that Dr Galanis suffered his ailment as a result of this administrative action (and the third administrative action). The next step is for the Tribunal to examine whether this action was reasonable, and taken in a reasonable manner. The Tribunal has considered only those actions taken by the Department prior to the lodgement of Dr Galanis’s workers’ compensation claim in May 2015.
Detailed description of this administrative action
On 29 May 2014, Dr Galanis initially proposed that his term transfer should be extended by two years. This proposal was not agreed to by Dr Sare. Dr Galanis subsequently made the Six Month Proposal to Dr Sare on 27 June 2014, namely, that the Department allocate to him six months of meaningful duties after the relocation. Dr Galanis proactively identified, for Dr Sare’s consideration, Clause 44 in the STP which he said would provide Dr Sare with the authority to grant Dr Galanis’s request.
At first, Dr Galanis misunderstood Dr Sare, by his emails dated 27 June 2014 and 3 July 2014, to have accepted his Six Month Proposal. The Tribunal accepts Dr Sare’s evidence that he did not intend to accept Dr Galanis’s Six Month Proposal by sending him those emails. Dr Sare considered that his emails related only to the commitment by the Department to pay for Dr Galanis’s relocation.
The Tribunal considers that Dr Sare should have worded this email differently to provide greater clarity to Dr Galanis about what Dr Sare was agreeing to. Be that as it may, the Tribunal is satisfied that Dr Sare had not at that time (on 27 June 2014 and 3 July 2014) made a decision about the Six Month Proposal, nor had he intended to convey any agreement about this, to Dr Galanis, by his emails on those dates. However, the Tribunal considers that as at about June/July 2014, Dr Sare held the view that Dr Galanis’s Six Month Proposal should not be agreed to by the Department. The Tribunal finds that Dr Sare decided to keep this view to himself and not to share it with Dr Sare, or anyone else for that matter.
The Tribunal finds that Dr Sare failed to respond to Dr Galanis’s Six Month Proposal request in June/July 2014 or at any time prior to his retirement from the Department. Based on the evidence of Dr Sare as set out in paragraph [50], the Tribunal finds that Dr Sare did not leave instructions with his successor Change Manager or for any other staff member at the Department, to follow up with Dr Galanis at some later point in time to make a decision about this issue and to provide a response to Dr Galanis, when he should have done so.
The Tribunal finds that Dr Sare avoided answering Dr Galanis’s question about the allocation of meaningful duties to him after his relocation to Melbourne. Dr Sare did not explain to Dr Galanis whether there was a reason why he was not prepared to make a decision, on behalf of the Department, about the Six Month Proposal or alternatively, to explain to Dr Galanis that a decision would be made at some future time about that proposal and to explain to Dr Galanis who would make that decision and when it would be made.
Between the point in time when Dr Sare departed the Department in August 2014, and when the successor Change Manager commenced in the role in October 2014, the Tribunal notes that the Department did not appoint anyone into the role of Change Manager on an interim basis.
When Dr Sare’s successor, Dr Cocking, commenced in the role, Dr Galanis raised the Six Month Proposal with her to seek clarification. As detailed in paragraph [66], Dr Cocking’s response was to defer any decision until it was known whether Dr Galanis was successful in being selected for one of the Principal Scientist positions.
Dr Cocking notified Dr Galanis on 21 January 2015 that he was unsuccessful for the position of Principal Scientist. At this meeting, Dr Cocking provided feedback to Dr Galanis about the Panel’s reasons why he was not selected for this position. Dr Galanis raised a number of concerns about the how the Panel conducted the selection process including whether it had unfairly disregarded his contribution to a book he had authored (jointly with others) and why his nominated referees were not contacted, while other people, not nominated as his referees, were contacted by the Panel.
Dr Cocking said in her evidence that Dr Galanis “did not take the news well” and that he had raised his concerns with her in the meeting on 21 January 2015 in a way that was “a bit antagonistic”. At the hearing Dr Cocking accepted that by raising these concerns with her, she had regarded Dr Galanis as challenging what the panel had done and she thought that Dr Galanis was suggesting that the panel did not know what it was talking about or did not have the skill sets to understand what was being proposed. The Tribunal also notes the evidence set out in paragraph [131].
The Tribunal considers that the evidence of Dr Cocking, both in her statements and given at the hearing, exhibited that she had been offended at a personal level by the concerns raised by Dr Galanis at this meeting.
The Tribunal is satisfied that on or following this meeting with Dr Galanis on 21 January 2015, the evidence did not reveal an appropriate level of focus or action by Dr Cocking in her assisting Dr Galanis to facilitate the identification of a substantive position for him within the new structure or elsewhere in the Department or the Australian Public Service, particularly in light of Dr Galanis’s long employment history with the Department and his seemingly untainted performance history (having been rated as fully effective or above in his role). The Tribunal notes that obligations existed at the time to provide Dr Galanis with individual and targeted support – see Clause 6 of the STP. The Tribunal also notes the obligations arising under Clauses 7, 9, 11 and 12 of Annexure D of the STP, C4.7 of the DECA and the repeated assurances given in correspondence to Dr Galanis from both of the Change Managers and his line manager, to the effect that Dr Galanis would be provided with such support.[85] However, it seemed from the evidence that reassignment opportunities identified for Dr Galanis after this time, arose out of actions taken by Dr Galanis and his line manager.[86]
[85] For instance, the assurance provided by Mr Smith in his letter dated 15 May 2014 as set out in paragraph [43] and Dr Sare’s letter dated 27 June 2014 as set out in paragraph [51].
[86] Refer paragraphs [82] to [84] of the reasons for decision.
Between January 2015 and May 2015, (May 2015 being the month that Dr Galanis lodged his workers’ compensation claim), Dr Cocking did not respond to Dr Galanis about his Six Month Proposal or make a decision about whether Dr Galanis would be allocated meaningful duties following his relocation to Melbourne and if so, for what duration. The Tribunal finds that in effect, Dr Cocking, during this period left Dr Galanis in limbo relating to this issue. It was no excuse that Dr Galanis was absent from work after 28 January 2015, as this did not prevent communications between Dr Cocking and Dr Galanis from taking place, whether it be directly or indirectly through a “medical case manager”.[87]
[87] Refer paragraph [82] of the reasons for decision.
By the time Dr Galanis made his workers’ compensation claim in May 2015, he had been waiting approximately nine months for clarity about the issue of whether he would be allocated meaningful duties following the relocation and if so, for what duration. As at May 2015, clarity about this issue was not forthcoming from Dr Sare, Dr Cocking or his line managers. It seemed that Dr Galanis was left to use the rehabilitation processes that took place after Dr Galanis ceased work following his ailment, to try to procure an answer from the Department about what was planned for Dr Galanis after he relocated to Melbourne in September 2015.
Reasonable action?
There was no evidence to suggest that either Dr Sare in refusing to respond to Dr Galanis in relation to his Six Month Proposal in June 2014 or at any time prior to Dr Sare’s retirement, or Dr Cocking in October 2014, in deciding to defer making a decision in relation to Dr Galanis’s Six Month Proposal, had considered the following factors:
(a)Dr Galanis’s 20-year history with the Department (with uncontested evidence that during that time he was rated as fully effective or higher), his extensive qualifications and professional experience (of which Dr Cocking was aware as a result of considering his application as part of the selection process for the Principal Scientist positions);[88]
(b)Dr Galanis’s status as a rotational staff member on term transfer at the time the change activity took place;
(c)the fact that in 2012 Dr Galanis had been promised a substantive position back in Melbourne or Adelaide at the end of the term transfer[89] which the Department was not prepared to honour as a consequence of its decision to undertake the organisational restructure, in conjunction with its further decisions not to assign Dr Galanis to or select him for a position in the new structure; and
(d)Dr Sare’s (and later, Dr Cocking’s) role as the Change Manager in placing priority on the retention of skill and experience of existing DSTO staff, as they were obligated to do under the STP, DECA and DWRM, by ensuring that any change affected staff were provided with a sufficient chance to explore opportunities for reassignment or redeployment.[90]
[88] Refer to paragraph [90] of these reasons for the decision.
[89] Refer to paragraph [5] of these reasons for the decision.
[90] Noting the obligations that existed at the time as referred to in detail in paragraph [250] above.

The Tribunal considers that those factors, if they had been considered, provided a firm basis for the Department to have accepted Dr Galanis’s Six Month Proposal at or shortly after the time it was first made by Dr Galanis to Dr Sare and subsequently, to Dr Cocking. The Tribunal considers the failure by Dr Sare and Dr Cocking to take into account those factors and consequently, their refusal to approve Dr Galanis’s Six Month Proposal, was unreasonable action.
The Tribunal expects that the express permission provided by Clauses 43 and 44 of the STP contemplated that it was appropriate and reasonable for staff in the same position as Dr Galanis, being in a rotational position, could be provided with up to two years (from the time of the organisational restructure) to be allocated meaningful duties. Reflecting the commitment made by the Department in Clause 4 of the Business Case as set out in paragraph [9] of these reasons for the decision, and Clauses 3 and 47 of the STP, this would have generated a sufficient opportunity for those staff, including Dr Galanis, to attempt to secure a substantive position within DSTO’s new structure or alternatively, elsewhere within the Department or the Australian Public Service.
Dr Galanis’s term transfer had been extended by 15 months and the Six Month Proposal by Dr Galanis, had it been accepted by the Department, would have equated to him being provided with a total of 21 months of duties after becoming unassigned as a consequence of the organisational restructure. This is three months less than the two year maximum period provided for in Clause 44 of the STP which was applicable to unassigned staff occupying rotational positions. No substantive reasons were proffered to Dr Galanis by Dr Sare, Dr Cocking or any other manager of the Department, as to why a period of up to 21 months as requested by Dr Galanis (being less than the maximum allowable period under Clause 44 of the STP) was not able to be provided to him.
It should have been clear at all times to the two Change Managers leading this change activity, that Dr Galanis was embarking upon a disruptive relocation process from Canberra back to Melbourne and that in their decision-making, they should have placed greater priority on trying to identify a substantive position for Dr Galanis once he returned to Melbourne. To maximise the prospects of achieving this, reflecting the commitment of the Department in Clause 4 of the Business Case and Clauses 3 and 47 of the STP, the Tribunal considers that the Department should have provided Dr Galanis with a reasonable period of time, by allocating him with six months of meaningful duties as had been proposed by Dr Galanis, upon his return to Melbourne.
The Tribunal considers the act of delaying or deferring a response to Dr Galanis’s Six Month Proposal:
(e)by Dr Sare from June 2014 to August 2014;
(f)by the Department from August 2014 to October 2014 (by the decision to leave the position of Change Manger vacant); and
(g)by Dr Cocking from October 2014 to May 2015:
when a decision should have been made to accept Dr Galanis’s Six Month Proposal at the time it was made to Dr Sare (and later, to Dr Cocking), was unreasonable action.
Taken in a reasonable manner?
The Tribunal considers that this administrative action was not taken in a reasonable manner for the following reasons:
(a)the evidence did not reveal any reason why:
(i)Dr Sare was not in a position to respond to Dr Galanis’s request to be allocated meaningful duties following his relocation to Melbourne when it was first made to him in June 2014 or any time prior to Dr Sare’s retirement; or
(ii)Dr Cocking was not in a position in late October/early November 2014 when she met with Dr Galanis, to respond to Dr Galanis’s request (and instead decided to defer any decision made about it until after the selection process for the Principal Scientist position). There was no reason provided by Dr Cocking as to why she was not able to make a provisional decision about the issue before this selection process took place. This would have provided greater clarity for Dr Galanis about his future, and it would have enabled him to better plan for his future, including in the event that he was not successful in being selected for that position.
(b)it seemed to the Tribunal that in June/July 2014, Dr Sare, privately, held a view about whether the Department should accept the Six Month Proposal, namely, the Department should not agree to it. This finding is supported by the evidence of Dr Sare as set out in paragraphs [50] and [117(h)]. Dr Sare was not transparent to Dr Galanis about this view at the time the Six Month Proposal was made to him. This was exacerbated by that fact that Dr Galanis pointed out to Dr Sare that Clause 44 in the STP provided him with the authority to grant Dr Galanis’s request. At the time, Dr Sare did not raise any objection to Dr Galanis about the point being made by him about Clause 44. The Tribunal considers that Dr Sare was aware at that time that he was consciously avoiding Dr Galanis’s question about this issue. The Tribunal notes the commitment provided by the Department in Clause 25 of the Business Case that all S&T 7 and 8 level staff would be treated transparently – see paragraph [13] of these reasons for the decision. The Tribunal also notes the obligation that existed at the time under Clause 2 of the STP as set out in paragraph [19] of these reasons for the decision and Clause 6A.1.2.5 of the DWRM as set out in paragraph [37] of these reasons for the decision;
(c)in the context of not responding to Dr Galanis’s request when it was made, Dr Sare did not leave any instructions for his successor Change Manager or any other manager at the Department to follow up with Dr Cocking at some later point to get back to Dr Cocking about this issue.[91] The Tribunal considers that it was reasonable for Dr Sare to have mentioned this during his handover discussion with Dr Cocking, included a written instruction in the handover brief that was provided to Dr Cocking and to have sent email to this effect to Dr Cocking or Dr Galanis’s line manager at the time;
(d)it was evident to the Tribunal that Dr Cocking was not aware of the existence of Clause 44 of the STP at the relevant time, despite being the Change Manger, when it was reasonable to expect that she should have been, without the need for Dr Galanis to bring it to her attention. Further, the impression of the Tribunal was that Clause 44 was also not at the forefront of Dr Sare’s mind, as he made decisions impacting DSTO staff holding rotational positions, including Dr Galanis, arising from the impact of the major organisational restructure that Dr Sare was responsible for managing in his role as Change Manager;
(e)Dr Cocking’s state of mind on 15 June 2015 when she signed the Employer Statement (see paragraph [100] of these reasons for the decision), on her own evidence, that there were “no outstanding matters” concerning Dr Galanis that she considered she was required to deal with after the handover to her as the Change Manager. However, this was not correct as there was clearly a dispute about whether Dr Galanis’s Six Month Proposal had been dealt with by Dr Sare;
(f)the Tribunal finds that it was unreasonable for the Department to have left the position of Change Manager vacant for a period of three months between August 2014 and October 2014, considering the importance of the role of Change Manager as described in the Business Case, STP, DECA and DWRM, in providing support to change-affected staff at a critical time in the implementation phase of the major DSTO change activity. Consequently, during these three months, there was no staff member that Dr Galanis could approach who was in a position or had the requisite authority to clarify for Dr Galanis what would happen following his relocation to Melbourne and whether he would be allocated meaningful duties for any period of time. Dr Galanis attempted to speak to his line manager about it but was told that he would need to wait to speak to Dr Sare’s replacement once they commenced in the role. By the Department allowing the position of Change Manager to remain vacant for approximately three months, it created a significant void of support for ‘change-affected’ staff, such as Dr Galanis.
[91] Refer to paragraph [50] of these reasons for decision.
For these reasons, the Tribunal concludes that this administrative action was not taken in a reasonable manner.
As this administrative action was not reasonable and not taken in a reasonable a manner, the Tribunal concludes that it did not give rise to the exclusion under s 5A of the SRC Act applying in this case.
CONCLUSION
For the reasons set out above, the Tribunal finds that Dr Galanis suffered an ailment as defined in s 4(1) of the SRC Act, being an “adjustment disorder with predominate features of anxiety” as diagnosed by Dr Zsadanyi. The Tribunal finds that this ailment was contributed to, to a significant degree, by his employment with the Department and consequently, Dr Galanis suffered a disease under s 5B of the SRC Act.
The Tribunal is satisfied that there were two administrative actions taken by his employer that were a cause of Dr Galanis’s ailment, being the Delayed Confirmation of Payment for Relocation and the Delayed Response to Dr Galanis’s Six Month Proposal.
The Tribunal has examined the circumstances leading up to and surrounding those actions as set out in these reasons for the decision. The Tribunal concludes that both of those administrative actions were not reasonable actions taken in a reasonable manner. Consequently, the exclusion in s 5A of the SRC Act does not apply in this case as contended for by Comcare, with respect to those administrative actions.
The Tribunal concludes that Dr Galanis suffered an injury within the meaning of s 5B of the SRC Act and that this injury resulted in impairment.
Accordingly, the Tribunal set asides the reviewable decision and in substitution, decides that Comcare is liable to pay compensation in accordance with s 14 of the SRC Act to Dr Galanis in respect of his injury.

I certify that the preceding two hundred and sixty-six (266) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

[sgd]......................................................................
Associate
Dated: 14 March 2018

Date of hearing:

3, 4 and 5 July 2017

Advocate for the Applicant:

Solicitors for the Applicant:

Mark Carey

Slater & Gordon Lawyers

Advocate for the Respondent: Cathy Dowsett

Solicitors for the Respondent: McInnes Wilson Lawyers

[2018] AATA 486

14 March 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Procedural Fairness

Statutory Construction

Appeal

Remedies

Judicial Review

Date of hearing:	3, 4 and 5 July 2017
Advocate for the Applicant: Solicitors for the Applicant:	Mark Carey Slater & Gordon Lawyers
Advocate for the Respondent:	Cathy Dowsett
Solicitors for the Respondent:	McInnes Wilson Lawyers