Gropel and Comcare (Compensation)

[2017] AATA 1290

Gropel and Comcare (Compensation) [2017] AATA 1290 (17 August 2017)

Division:GENERAL DIVISION

File Number:           2015/4390

Re:Natasha Gropel

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Regina Perton, Member

Date:17 August 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Regina Perton, Member

COMPENSATION – employment by Department of Defence – chronic major depression with anxiety, generalised anxiety disorder, panic disorder and post-traumatic stress and anxiety syndrome – allegations of bullying and harassment – whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether applicant entitled to compensation for incapacity – decision affirmed 

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A(1), 5A(2), 5B(1), 5B(2), 5B(3), 14(1)

Cases

Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No 2) (2013) FCR 272
Comcare v Mooi (1996) 69 FCR 439
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 145 FCR 29

Lim v Comcare [2017] FCAFC 64

REASONS FOR DECISION

Regina Perton, Member

17 August 2017

1. Ms Natasha Gropel was an Executive Assistant (APS4) at the Defence Command Support Training Centre (DCSTC), Department of Defence (DoD) at Simpson Barracks, Macleod in Victoria.  She lodged a claim for compensation on 7 October 2014 for a psychological condition that occurred as a result of workplace incidents, including alleged bullying, harassment, lying and collusion, theft of private property, tampering with computer log-ins, prank telephone calls, and inaction by management.

2. On 4 March 2015 Ms Gropel’s claim was refused by Comcare, which found that her condition of major depressive disorder, single episode did not constitute an ailment as defined in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 26 May 2015 a Comcare reconsideration delegate affirmed the decision on the basis that Ms Gropel suffered an ailment, namely adjustment disorder with symptoms of anxiety that was significantly contributed to by her employment but had arisen from reasonable administrative action taken in a reasonable manner by the DoD.  As such, Comcare found that she did not suffer an injury as defined in the SRC Act. On 26 August 2015 Ms Gropel sought review by the Tribunal.

   LEGISLATIVE BACKGROUND

3. Section 14(1) of the SRC Act states:

   Compensation for injuries

   (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment

   ...

4. Section 5A of the SRC Act states:

   Definition of injury

   (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.

5. Section 5B of the SRC Act states:

   Definition of disease

   (1)In this Act:

   disease means:

   (a)an ailment suffered by an employee; or

   (b)an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)the duration of the employment;

   (b)the nature of, and particular tasks involved in, the employment;

   (c)any predisposition of the employee to the ailment or aggravation;

   (d)any activities of the employee not related to the employment;

   (e)any other matters affecting the employee’s health.

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

   (3)In this Act:

   significant degree means a degree that is substantially more than material

   Ailment is defined in s 4 of the SRC Act as:

   ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

   ISSUES

6. Comcare conceded, and the Tribunal accepts, that Ms Gropel suffers from a psychological condition (the medical condition) which, on the basis of the medical evidence, is outside the boundaries of normal mental behaviour and functioning (Comcare v Mooi (1996) FCR 439), and was contributed to, to a significant degree, by her employment with the DoD. The medical condition constitutes a disease for the purposes of s 5A and s 5B of the SRC Act.

7. The issues before the Tribunal are:

   ·When did Ms Gropel suffer the disease and what is the diagnosis?

   ·Did Ms Gropel suffer an injury? This requires consideration of whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. 

   When did Ms Gropel suffer the disease and what is the diagnosis?

8. In her application for compensation, Ms Gropel stated that she suffered the medical condition in September 2013, and on 19 March 2014 she first attended her general practitioner in connection with the medical condition and took sick leave from 19-21 March 2014 to deal with stress.  

9. Ms Gropel told the Tribunal that she grew up in Melbourne and after Year 12 she completed bachelors’ degrees in commerce and arts at Deakin University in 2001.  After graduation, she worked in the accounting field for three years, and in recruitment in the financial industry for about one year before joining the Defence Force School of Music (DFSM) in 2005 as Executive Assistant to the Head of DFSM.  Following a restructure in 2009, she moved to the DCSTC headquarters as Executive Assistant to the Commandant in the same location.  From June 2012 until July 2013 she took leave without pay to accompany her partner to Indonesia.  Before commencing this leave, she invited a colleague (Ms Allysha Breadon) to travel with her to China in October 2012 on a four‑week holiday.  She described the trip as a disaster because of Ms Breadon’s poor behaviour, but they ended the trip on relatively good terms.  Ms Gropel stated that she returned to Melbourne for a visit in January 2013 and caught up with work colleagues, during which she heard that Ms Breadon had been making derogatory comments about her, but when they met Ms Breadon was friendly and wanted to put the difficulties of the holiday behind them and remain friends.

10. In July 2013 Ms Gropel returned to work and offered friendship to Ms Breadon, despite hearing further reports of negative comments made about her by Ms Breadon.  However, in August 2013 she sensed that Ms Breadon was acting strangely towards her and being very short and curt with her.  Ms Gropel stated that Ms Breadon ignored her for the next few months, and the two had nothing to do with each other.  On 10 and 11 December 2013 Ms Gropel had issues at work, including a note of non-compliance that had been placed on travel documents that she had prepared for her boss, and mail that she had left in a pigeon-hole and had not been collected.  Ms Gropel suspected Ms Breadon of involvement in these matters.

11. Ms Gropel told the Tribunal that prior to 2014 she had never experienced any psychological issues and her work performance was excellent.  On 5 February 2014 she reported that her iPad was missing from her bag at work and notified the Military Police on 7 February 2014.  An investigation was conducted and on 20 February 2014 Ms Gropel was informed that the investigation was closed and that no person of interest had been identified.  On 24 February 2014 a meeting was held between Ms Gropel, Ms Breadon, Mr David Cassidy (Lead Business Finance Manager) and Ms Maryanne Corcoran (Incident Manager) (the 24 February 2014 meeting).  Mr Cassidy was Ms Breadon’s supervisor.  Ms Gropel said that at the meeting she made positive comments towards Ms Breadon but that Ms Breadon began yelling at her and using expletives.  She said that neither Mr Cassidy nor Ms Corcoran made any attempt to prevent Ms Breadon from continuing her outburst until Ms Corcoran told Ms Breadon that she might be committing a breach of the Code of Conduct of the Australian Public Service (APS).  Ms Gropel said that she was upset at the way Ms Breadon treated her and the reaction from Mr Cassidy and Ms Corcoran.  She said that after the meeting nothing was done to address her concerns.

12. On 26 February 2014 Ms Gropel’s supervisor, Lieutenant-Colonel Michael Sasse (Lt‑Col Sasse), emailed Ms Gropel a copy of the Military Police report into the missing iPad (the Police report).  Ms Gropel said that she was shocked and upset because of the delay in giving her the report, and believed that the Military Police were lazy and had lied in closing the case without a full investigation of the matter.  She said that she sought assistance from Ms Corcoran, who criticised her for making negative comments about the Military Police in an email to them.  Ms Gropel said that she was distressed that management did not take her concerns seriously.

13. On 17 March 2014 Lt-Col Sasse convened a meeting with Ms Gropel, Ms Breadon, Mr Cassidy, and Ms Corcoran (the 17 March 2014 meeting).  The meeting was intended to be informal counselling about expectations for workplace behaviour.  Ms Gropel said that Mr Cassidy suggested informal mediation between her and Ms Breadon, to which she agreed but Ms Breadon was unsure.  However, she said she was distressed when Mr Cassidy remarked that there were enough HR issues in the office already and the organisation did not need any more.  Ms Gropel said that she interpreted this comment as meaning that she was wasting people’s time, and she was tearful when she returned to her desk.  She said that she attended her general practitioner on 19 March 2014 and took three days’ sick leave because of stress.

14. On 21 March 2014 Ms Gropel discovered that Lt-Col Sasse had initiated a Quick Assessment (QA) investigation into her allegations of bullying against Ms Breadon in the workplace (the QA).  On 24 March 2014 the investigation concluded that there was insufficient evidence to proceed further with the matter.  Ms Gropel said that she became emotional about the issue and broke down in tears because she felt totally unsupported by management. 

15. On 11 July 2014 a mediation was held between Ms Gropel and Ms Breadon (the mediation).  During the mediation, Ms Breadon stated that she had secretly recorded the meeting held on 24 February 2014.  Ms Gropel stated that she was shocked and disturbed by this admission, but nothing was done about it by management.  She was also upset that Ms Breadon had breached the confidentiality of the mediation by contacting a person known to both of them during a break.

16. On 8 September 2014 a meeting took place between Ms Gropel, Lt-Col Sasse, Ms Corcoran, Chaplain Martin De Pyle (Major De Pyle), and Warrant Officer Class 1 Juan Zajac (WO1 Zajac) to discuss Ms Gropel’s complaints about difficulties she had experienced with her computer log-in codes, and other issues (the 8 September 2014 meeting).  Ms Gropel said she was told that formal action was to be taken against Ms Breadon.  She also said that at the meeting, she brought Major De Pyle and WO1 Zajac as support persons because she felt unsafe in an office with just Lt-Col Sasse and Ms Corcoran.  She did not trust them.  Ms Gropel said that she accused Ms Corcoran of lying on a number of occasions.  After the meeting she felt unwell physically and on the tip of a severe emotional breakdown. 

17. On 9 September 2014 Ms Corcoran made a formal complaint that Ms Gropel had engaged in unacceptable behaviour by harassing her and making false allegations, and Ms Gropel was informed of the complaint at a meeting on 15 September 2014 arranged by Lt-Col Sasse (the complaint).  After the meeting Ms Gropel was provided with details, and she said that she felt very dizzy, shaky, panicky, sick in the stomach and in fear for my welfare and safety within the office.  Lt-Col Sasse informed Ms Gropel that mediation would be arranged, but on 17 September 2014 Ms Gropel responded that she was unhappy with the choice of proposed mediator, and lodged a formal Request for review of action. 

18. On 18 September 2014 Ms Gropel collapsed and fell at work.  She said that she had been feeling … teary, I was not functioning, my eyes were blurry, I couldn’t see the screen properly.  On 19 September 2014 she attended her general practitioner who recorded bullying at work and gave her two days off work.  Ms Gropel withdrew from the mediation process because of her concerns about the appointed mediator.  On 22 September 2014 Ms Gropel became unwell at work and lost consciousness.  She was admitted to hospital where she gave a history of workplace bullying and stress, and was released after several hours.  She has not returned to work since then.  On 23 September 2014 she attended her general practitioner and commenced counselling with a psychologist on 26 September 2014.

    Dr Ali Traheri 

19. Dr Ali Traheri, general practitioner, stated in clinical notes of Rex Medical Bundoora dated 19 March 2014, that Ms Gropel attended the medical practice for Anxiety feeling and he took a history as, being bullied at work place and needs few days off to calm down.  He wrote a medical certificate for time off work.  

    Ms Bernadette Ghattas

20. Ms Bernadette Ghattas, workplace rehabilitation consultant, stated in a report dated 20 November 2014 that Ms Gropel is suffering from major depression and anxiety arising from workplace issues over a period of two years from 2012 to 2014.

    Dr James Hundertmark

21. Dr James Hundertmark, consultant psychiatrist, stated in a report addressed to Comcare dated 9 December 2014 that Ms Gropel attended for an examination but refused to participate.  He expressed the view that Ms Gropel has personality issues and a tendency to have unstable and intense interpersonal relationships which are characterised by alternating between extremes of idealisation and devaluation. 

    Dr Zeeva Cohen

22. Dr Zeeva Cohen, consultant psychiatrist, stated in a report addressed to DoD dated 9 December 2014 that Ms Gropel suffers from an adjustment disorder with symptoms of anxiety developed in the context of work-related stress.

    Dr Catherine Renzaho

23. Dr Catherine Renzaho, general practitioner, stated in a report dated 20 December 2014 that Ms Gropel attended her practice on two occasions.  She recorded that Ms Gropel has had adjustment difficulties relating to the workplace, and there was evidence of secondary major depression/anxiety.  She diagnosed major depression with anxiety.

    Dr Rosemary Field

24. Dr Rosemary Field, treating psychiatrist, stated in a report dated 16 February 2015 that Ms Gropel appears to have suffered an episode of mixed depressive anxiety panic symptoms in the workplace.  In a further report dated 16 April 2015 Dr Field stated that Ms Gropel is suffering from depression of moderate severity with prominent anxious ruminations.

    Mr Edwin Kleynhans

25. Mr Edwin Kleynhans, psychologist, stated in a report dated 18 May 2015 prepared at the request of Ms Gropel’s then solicitors that Ms Gropel is suffering from panic disorder without a history of agoraphobia and major depressive disorder.  He said that the conditions were caused by the workplace situation during 2013 and 2014 when Ms Gropel lost consciousness and decided to leave the workplace and lodge a claim for compensation.

    Dr David Weissman

26. Dr David Weissman, consultant psychiatrist, stated in a report dated 19 October 2015 addressed to Ms Gropel’s solicitors that she suffers from a chronic adjustment disorder with depressed and anxious mood associated with traumatisation features.  In a further report dated 1 March 2016 Dr Weissman amended his diagnosis after being provided with comprehensive documentation and said that that Ms Gropel suffers from chronic major depression with anxiety, generalised anxiety disorder, panic disorder and post-traumatic stress and anxiety syndrome.  In oral evidence, he stated that on balance Ms Gropel had symptoms that were troubling and distressing her in December 2013, but they were not necessarily diagnosable to the extent that they had an impact on her occupational functioning or social interpersonal functioning until March 2014.  He said that the comments made by Lt-Col Sasse at the 17 March 2014 meeting, and Ms Gropel’s perception she was wasting people’s time, would impact on her depression and anxiety.

    Dr Tacye Todd 

    Dr Tacye Todd, general practitioner, stated in a report dated 30 May 2016 that Ms Gropel is suffering from an adjustment disorder with depressed and anxious mood. 

    Dr Dielle Felman

27. Dr Dielle Felman, consultant psychiatrist, stated in a report dated 15 June 2016 that Ms Gropel suffers from an adjustment disorder with mood and anxiety symptoms, features of traumatisation and embitterment.

    Dr Lester Walton

28. Dr Lester Walton, consultant psychiatrist, stated in a report dated 19 July 2016 that Ms Gropel suffers from a chronic mixed anxiety/depressive disorder.  He said that, given Ms Gropel’s history and after consideration of the available documentation, the psychiatric condition likely had reached diagnosable proportions towards the end of 2013, very probably by March 2014 when she sought medical advice, and certainly by September 2014 when she was suffering from panic attacks that precipitated her departure from work.

    Dr Norman Rose

29. Dr Norman Rose, consultant psychiatrist, stated in a report dated 14 February 2017 that Ms Gropel suffers from a generalised anxiety disorder as a result of her negative interaction with Ms Breadon, commencing during the holiday to China in October 2012 and continuing during subsequent employment.  He stated that he agreed with Dr Walton’s assessment that the psychiatric condition likely had reached diagnosable proportions towards the end of 2013, very probably by March 2014 when she sought medical advice, and certainly by September 2014 when she was suffering from panic attacks that precipitated her departure from work.  In oral evidence, Dr Rose referred to Ms Gropel’s negative perception of others and said that anything that went against her view of things had the potential to make her believe that those people who held those views contrary to her, were liars.  Under cross-examination, he said that in his assessment Ms Gropel already had a psychiatric condition by late 2013, early 2014.

    CONSIDERATION

30. The medical evidence varies with respect to diagnosis.  The Tribunal prefers the opinion of Dr Weissman, who examined Ms Gropel on two occasions and gave oral evidence to the Tribunal and was cross-examined.  His first assessment was carried out on 19 October 2015, closer to relevant events than examinations by a number of other medical practitioners.  The Tribunal finds that Ms Gropel is suffering from chronic major depression with anxiety, generalised anxiety disorder, panic disorder and post-traumatic stress and anxiety syndrome.

1. Ms Gropel first attended her general practitioner on 19 March 2014 after her psychological symptoms became diagnosable and she was incapacitated for work.  In all the circumstances, the Tribunal finds that the date of the disease suffered by Ms Gropel is 19 March 2014.

   Did Ms Gropel suffer an injury?

   EVIDENCE  CONCERNING THE 17 MARCH 2014 MEETING 

   Ms Gropel

2. In a written statement (undated, but received by Comcare in about August 2015), Ms Gropel described the events that occurred at the meeting on 17 March 2014, when Lt‑Col Sasse opened by outlining his expectations about how people should behave in the workforce, and what needed to happen going forward.  She said that this was a brief opening, followed by a statement from Ms Corcoran that there was a mediation option available to her and Ms Breadon, to which she replied that she would like to proceed with that option, while Ms Breadon said I’ll see about that!  Ms Gropel said that Mr Cassidy remarked: We’ve got enough HR issues going in this HQ.  We don’t need another one.  The meeting had lasted only about five minutes and everyone stood up to leave.  In her statement, Ms Gropel said that she was shocked by Mr Cassidy’s comment and quickly interjected at that point to Mr Cassidy:  By saying you’ve got enough HR issues is sending me an indication that I’m wasting people’s time and my issues do not have the validity to be raised.  She said that she was clearly distressed by Mr Cassidy’s comment, and reminded those at the meeting that she did not actively choose to say anything bad about Ms Breadon, but she was constantly getting feedback from others …about the awful things she keeps saying about me.  She explained that after she returned to her desk she broke down and burst into tears.

3. In oral evidence Ms Gropel said that she told the meeting that she wanted mediation:

   …to get to the bottom of it. And I also said that Allysha’s behaviour was unacceptable, but they never raised anything.  They never followed up my complaint of unacceptable behaviour …it was all about, “You two ladies need to sort it out yourselves, and we’re sending you off to mediation”, rather than the workplace also addressing the fact that I had been completely harassed in a meeting.

4. Ms Gropel told the Tribunal that Mr Cassidy remarked:  We’ve got enough HR issues in this office – in this workplace.  We don’t need any more.  She said that she replied to Mr Cassidy:

   Stop.  This is – we can’t just end this here.  For you to say you’ve got enough workplace issues, is not actually giving any credit to the fact that this is an additional one, and this is an issue in its own right, and it should be dealt with.  But just because you’ve got so many other issues shouldn’t mean that this one shouldn’t be dealt with.

5. Ms Gropel said that the day after the meeting she was extremely stressed and had melted down, and was physically pale, weak, I was crying.  For this reason she attended her general practitioner on 19 March 2014 and was given three days off work.

   Ms Maryanne Corcoran

6. Ms Corcoran made a written statement dated 24 October 2016 in which she said that she had been working for the DoD for over 17 years and met Ms Gropel in July 2009 when she commenced her role as Incident Manager with DCSTC.  She said that in February 2013 Ms Gropel had told her about a falling-out with Ms Breadon on the trip to China, and in December 2013 Ms Gropel raised a number of concerns within the workplace, including the non-removal of documents from a pigeon-hole.  She said that following the meeting on 24 February 2014 she received an email from Ms Gropel on 12 March 2014 requesting a further meeting.  This meeting was arranged for 17 March 2014 to advise Ms Gropel and Ms Breadon about the standard of behaviour expected in the workplace, and to reinforce the need for both to cease involving other staff in their gossip about each other.  Ms Corcoran also recommended a formal mediation.

7. Ms Corcoran stated that at the meeting Lt-Col Sasse outlined the formal mediation process and sought the agreement of Ms Gropel and Ms Breadon to participate, with Ms Gropel indicating her agreement and Ms Breadon stating that she would think about it. Ms Corcoran stated that she did not recall Mr Cassidy saying: We have enough HR issues going on in this HQ.  We don’t need another one.  She said that after the meeting, Lt‑Col Sasse appointed a support person for Ms Gropel, who had access to chaplaincy services provided by Major De Pyle.  Under cross-examination, Ms Corcoran agreed that Ms Gropel did not appear distressed at the prospect of a mediation with Ms Breadon and had welcomed the opportunity.  Ms Corcoran reiterated that she did not recall Mr Cassidy making the alleged comment about having enough HR issues, and said that she would be very surprised if he had made such a comment because it’s not the kind of comment I can imagine him making, and I don’t recall the comment.  I think if I had heard it, I would.

   Lt-Col Michael Sasse

8. Lt-Col Sasse made a written statement dated 22 February 2017 in which he said that he took up the position of Chief of Staff and Deputy Commandant, DCSTC, in January 2014, and met Ms Gropel at that time.  He said that although Ms Gropel worked directly to the Commandant, he was her First Level Supervisor.  Lt-Col Sasse confirmed that he arranged the meeting on 17 March 2014 because he was advised earlier that day that the personal difficulties between Ms Gropel and Ms Breadon were having an adverse effect on the workplace, but that the situation may be amenable to mediation.  He said that the nature of the meeting was informal counselling for both staff members, and at the meeting Ms Corcoran recommended mediation, which was accepted by Ms Gropel but Ms Breadon only said that she would think about it.

9. Under cross-examination Lt-Col Sasse stated that the purpose of the meeting was to emphasise his expectations of staff behaviour in the workplace, and to resolve a number of outstanding issues between Ms Gropel and Ms Breadon, possibly through mediation.  He agreed that during the meeting Ms Gropel had been cooperative and he did not recall her being upset.  He said that he did not recall Mr Cassidy making any comment about enough HR issues. 

   Mr David Cassidy

10. Mr Cassidy made a written statement dated 21 October 2016 in which he said that he has been working with the DoD for more than 33 years, including 22 years as an Army musician, and is Finance Manager at DCSTC.  He said that he first met Ms Gropel at DFSM in 2007 or 2008 and was her supervisor for three to six months.  He said that he attended the meeting on 17 March 2014 that was organised by Lt-Col Sasse in response to the dispute between Ms Gropel and Ms Breadon, which was having an impact on the workplace.  The nature of the meeting was informal counselling for Ms Gropel and Ms Breadon.  During the meeting Ms Corcoran recommended that both staff members attend mediation, and he said that he supported the recommendation and remarked to the effect that:  We need to get this resolved, we have enough of this going on, and it really does need to be resolved.  In oral evidence Mr Cassidy said as the meeting was an informal counselling meeting, no formal records were kept. 

    TRIBUNAL’S CONSIDERATIONS

    Was the medical condition suffered as a result of the administrative action?

11. In Comcare v Martin (2016) 153 ALD 167 the High Court of Australia stated at [47]:

    Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.

12. In Lim v Comcare [2017] FCAFC 64 the Full Federal Court referred to Comcare v Martin and identified a deficiency in the Tribunal’s decision-making process.  The Court stated:

    [40] When regard is had to Comcare v Martin, a deficiency in the Tribunal’s decision-making in Dr Lim’s case becomes apparent. What the Tribunal failed to do was address the entirety of the question to which the application of the exclusion in s 5A(1), when read with s 5B, gave rise.

    [41] As noted earlier, in Dr Lim’s case, there was no dispute that the relevant adjustment disorder (being an ailment as defined in s 5B(1)(a)) was contributed to, to a significant degree, by Dr Lim’s employment by ACMA. Put another way, as in Ms Martin’s case, only employment-related factors were identified as contributing to Dr Lim’s ailment. In this circumstance, applying Comcare v Martin, to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken.

13. Applying Martin and Lim, the Tribunal takes into account the evidence that after the 17 March 2014 meeting, Ms Gropel consulted her general practitioner on 19 March 2014, and was given three days off work after complaining of stress.  This is supported by the medical evidence, including Dr Weissman’s evidence, that in his opinion the 17 March 2014 event contributed to Ms Gropel’s medical condition because the feeling that she was not being taken seriously, not valued, and not supported about important matters, would contribute or be one of the contributing factors to her medical condition.  The Tribunal finds that Ms Gropel would not have suffered the medical condition if the 17 March 2014 event had not taken place.

    Did the 17 March 2014 meeting constitute reasonable administrative action?

14. In Drenth v Comcare [2012] FCAFC 86 the Full Federal Court stated at [26]:

    Whether something is reasonable or not is ordinarily a question of fact.  A decision-maker does not make an error of law simply in making a wrong finding of fact…

15. The Tribunal takes into account that after the meeting of 24 February 2014 when Ms Breadon had used inappropriate language, Ms Gropel felt that there were issues that had not been resolved, which she outlined in her email of 12 March 2014 to Ms Breadon (with copies to Ms Corcoran and Mr Cassidy) in which she sought a follow-up meeting.  She had also indicated a willingness to participate in mediation with Ms Breadon.  The Tribunal accepts the evidence from Ms Corcoran that the 17 March 2014 meeting was arranged as a result of Ms Gropel’s wish for a further meeting, and that in the best interests of all parties the meeting was conducted as an informal counselling session.  This is consistent with Lt-Col Sasse’s evidence that he needed to emphasise to Ms Gropel and to Ms Breadon his expectations of appropriate behaviour in the workplace, and to explore the option of mediation and to encourage a resolution of the issues.  In the circumstances the Tribunal finds that the 17 March 2014 meeting constitutes reasonable administrative action as defined in s 5A(2) of the SRC Act.

    Was the reasonable administrative action taken in a reasonable manner?

16. In Comcare v Martinez (No 2) (2013) FCR 272 the Federal Court considered the circumstances in which an administrative action is taken in a reasonable manner for the purposes of s 5A of the SRC Act. Robertson J said:

    [82]…I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.

    [83] I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42; at 47-48 where his Honour said, in a context much closer to the present legislation:

    Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

17. There is no dispute that Lt-Col Sasse opened the meeting and stated his expectations about appropriate behaviour in the workplace, followed by a statement by Ms Corcoran about options for mediation, and up to this stage the meeting seems to have been conducted without incident.  Ms Gropel’s evidence was that Mr Cassidy then made comments to the effect that there were enough HR issues and they did not need another one, which she found distressing and upsetting.  Mr Cassidy’s evidence was that his words were to the effect that the matter had been going on long enough and needed to be resolved.  Neither Ms Corcoran nor Lt-Col Sasse could recall any comments by Mr Cassidy about HR issues.

18. The Tribunal takes into account that Ms Gropel’s recollection of the meeting as set out in her written statement is not the same as her evidence at the hearing, particularly her account of Mr Cassidy’s remarks and her reply to him.  The Tribunal prefers the evidence of Mr Cassidy, who has had long experience in the Army and the Australian Public Service, and whose evidence as a whole suggests that he was trying to assist Ms Gropel to resolve her workplace issues.  Ms Gropel may have misheard Mr Cassidy or misunderstood his comments.  This leads the Tribunal to conclude that the comments by Mr Cassidy were appropriate and the meeting was conducted in a reasonable manner.

19. The Tribunal is satisfied that at every step of the process connected with the meeting DCSTC, personnel acted appropriately and in fairness to Ms Gropel in an effort to reach a resolution of the issues that were causing her to be upset and stressed. For these reasons the Tribunal finds, in relation to the 17 March 2014 meeting, the reasonable administrative action was taken in a reasonable manner in respect of Ms Gropel’s employment under s 5A of the SRC Act.

    CONCLUSION

20. In view of its findings the Tribunal is satisfied that, in respect of the 17 March 2014 meeting, the medical condition suffered by Ms Gropel resulted from reasonable administrative action taken in a reasonable manner in respect of her employment. Therefore, it does not come within the definition of injury in the SRC Act.

21. In Hart v Comcare (2005) 145 FCR 29 the Federal Court of Australia held that, a disease that is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in s 4(1) of the SRC Act, is not an injury for the purposes of the SRC Act. It is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. In other words, in order for the proviso to apply, it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances. In view of the Tribunal’s findings regarding reasonable administrative action in respect of the 17 March 2014 meeting, Ms Gropel is not entitled to compensation under the SRC Act, and there is no need to consider whether the administrative action in respect of the 24 February 2014 meeting, the Police report, the QA, the mediation, the 8 September 2014 meeting, or the complaint satisfy the criteria for excluding the condition from the definition of injury.

    DECISION

22. The Tribunal affirms the decision under review.

I certify that the preceding fifty‑three (53) paragraphs are a true copy of the reasons for the decision herein of:

Regina Perton, Member.

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

Administrative Assistant

Dated: 17 August 2017

Dates of hearing:	28 February, 1, 2 and 3 March, 1 June 2017
Counsel for Ms Gropel:	Mr Ray Ternes
Solicitors for Ms Gropel:	Shine Lawyers
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Comcare