Harrison and Comcare (Compensation)

[2017] AATA 1120

Harrison and Comcare (Compensation) [2017] AATA 1120 (19 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4659

Re:Joanne Harrison

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:19 July 2017

Place:Canberra

The decision under review is affirmed.

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

Deputy President Gary Humphries

Catchwords

WORKERS COMPENSATION – psychological injury – employee on temporary performance allowance – temporary performance allowance not renewed – no renewal of temporary performance allowance constitutes a ‘failure to retain a benefit’ under the relevant Act – injury caused by administrative action taken in respect of employee’s employment – administrative action deemed reasonable – administrative action taken in a reasonable manner in respect of employee’s employment – exemption to liability made out – decision affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Beezley v Repatriation Commission [2015] FCAFC 165
Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No2) 302 ALR 608

Lee and Comcare [2012] AATA 867

Secondary Materials

Department of Social Services Enterprise Agreement 2015 to 2018
Department of Social Services - Job Evaluation Policy, April 2014

Temporary Performance Allowance Policy, February 2016

REASONS FOR DECISION

Deputy President Gary Humphries

19 July 2017

1. Ms Joanne Harrison suffered a workplace injury arising from her employment with the Department of Social Services. That injury, an adjustment disorder with anxiety and depressed mood, counts as a disease pursuant to s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The injury occurred on 29 February 2016 as a result of a meeting held at her workplace where she was advised by her superiors that she would not continue to occupy an APS6 position she had filled for the previous eight months.

2. Comcare, the respondent in these proceedings, concedes that what occurred that day did indeed psychologically injure Ms Harrison, but contends that what occurred at that meeting constitutes reasonable administrative action, taken in a reasonable manner, pursuant to the exemption in s 5A of the Act. The effect of that exemption is to render what would otherwise be a compensable injury non-compensable. The single issue before the Tribunal is whether that contention can be upheld.

   THE APPLICABLE LAW

3. An employee is entitled to workers compensation in the circumstances described in s 14(1) of the Act:

   (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. To claim compensation under s 14(1) of the Act, an employee must have suffered from an injury (which includes a disease) pursuant to the Act.

5. Injury is defined by s 5A:

   (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.

6. Comcare submitted that the reasonable administrative action in issue here related to Ms Harrison’s failure to retain a benefit, namely temporary performance allowance at the APS6 level, as provided for in s 5A(2)(f).

7. Disease is defined by s 5B:

   (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.

8. A general responsibility falls on the applicant to establish, on the balance of probabilities, that the applicant in fact meets the definitional tests in either s 5A or 5B and would therefore be entitled to compensation through s 14 of the Act (Beazley v Repatriation Commission [2015] FCAFC 165, [68]). Should a respondent seek to invoke the reasonable administrative action exemption in s 5A to disqualify an applicant from claiming under s 14, a general responsibility then falls on the respondent to make out the exemption to the satisfaction of the Tribunal, also on the balance of probabilities.

9. The Tribunal’s jurisdiction to consider these issues arises from s 64 of the Act. That section authorises the Tribunal to review a reviewable decision made under s 62. In this case, the reviewable decision is the decision of Comcare’s delegate dated 2 August 2016, affirming after reconsideration an earlier determination dated 7 June 2016 which denied liability for Ms Harrison’s adjustment disorder.

   THE EVIDENCE

10. Ms Harrison worked for six or seven years at what is now called the National Centre for Longitudinal Data (NCLD or the Centre), within the Department of Social Services (the department). In her evidence to the Tribunal it was clear that she was enthusiastic about her work there and generally valued working with others in roles associated with the NCLD, both departmental officers and stakeholders (over 200 in number) seeking access to the datasets.

11. In mid-2015 Ms Harrison was a departmental officer with a substantive APS4 position at NCLD. She applied for and won a merit selection process to receive a temporary performance allowance (TPA) at the APS6 level, starting on 6 July 2015. In that position she managed the provision of access to the NCLD datasets. The provision of TPA to public servants who act in such roles is governed by a Temporary Performance Allowance Policy (TPA Policy). A version of the TPA Policy dated February 2016 was before the Tribunal. According to that policy:

    Temporary performance is designed to be a short-term interim measure. Where it is needed to fill a substantive vacancy, the period of temporary performance will be limited to six months. Only a manager at or above Branch/State Manager (or equivalent level) may approve any extension of the six month period.

12. Approval for Ms Harrison to continue to receive TPA at the APS6 level occurred periodically over the eight months or so following her winning of the allowance commencing in July 2015. Approval was granted in July 2015, October 2015, January 2016 and February 2016, for periods ranging from 3½ months to 3½ weeks. The February TPA approval (the final approval) granted to Ms Harrison was due to expire on 29 February 2016.

13. In October 2015 Mr Adam Rowland commenced with the NCLD as executive manager, and the following month Mr Anthony Cowley commenced as a director there. Soon afterwards both men began a review of the business functions of the NCLD, focusing particularly on the role of staff members who were on TPA. This exercise was consequential to the merging of four major national surveys to create the NCLD not long before. In January 2016 Mr Rowland sent emails to the staff at NCLD providing updates on progress regarding the NCLD structure and staffing profile. In an email dated 28 January 2016 he made the following statement:

    I have decided to extend all acting (TPA) arrangements that were due to expire at the end of January to the end of February…anyone affected should please send TPA extension requests to 29 February through SAP ESSentials to the appropriate delegate. (emphasis in original)

    (SAP ESSentials was the departmental database where details of staff TPA, leave and other entitlements were captured – the HR hub, as Mr Cowley put it.) Ms Harrison made an extension request in accordance with this directive, which was approved.

14. On 29 February 2016, the day Ms Harrison’s most recent TPA extension was due to expire, she was called into a meeting with Mr Rowland and her supervisor, Ms Helen Harkin. In that meeting, Mr Rowland told Ms Harrison that, after evaluating the needs of the NCLD team and her own duties, he and Mr Cowley had decided that she would be offered a position only at the APS5 level from the following day. Just a few minutes later Ms Harrison left the meeting, visibly upset.

15. The parties characterised the decision made by Mr Rowland and Mr Cowley in different ways. Ms Harrison contended that her APS6 position was reclassified to an APS5 position, and that therefore it was caught by the Job Evaluation Policy (JE Policy) issued by the Department of Social Services in April 2014. That policy requires that a job evaluation for a particular position determines the relative work value of the position through assessing the nature, impact and accountabilities of the job in accordance with classification protocols applying across the Australian Public Service. The JE Policy is a relatively structured process which requires that the People Branch of the department must be involved, the incumbent in a position must be consulted and a record of the evaluation outcome must be forwarded to the relevant HR Business Partner within one week of the exercise concluding. Comcare conceded that if the JE Policy did apply to Ms Harrison’s APS6 position, it was not followed in this case.

16. Comcare contended, however, that the JE Policy did not apply, and that what occurred was merely the ceasing of Ms Harrison’s TPA duties at the APS6 level, on the day that approval for those duties was, in any case, due to expire (29 February 2016).

17. The parties agreed that what occurred at the meeting on 29 February 2016 was the administrative action without which Ms Harrison would not have been injured (Comcare v Martin (2016) 153 ALD 167). Against Comcare’s claim that the action was reasonable administrative action under s 5A, Ms Harrison asserted that there were, in particular, three aspects of the meeting which were not reasonable, or which were not actions carried out in a reasonable manner:

    (a)The relevant departmental policies ought to have been, but were not, applied to the change that occurred in her position on 29 February 2016. The most important of these was the JE Policy. The department’s failure to apply these relevant policies represented such a serious departure from its obligations to her that those actions could not have been considered reasonable.

    (b)The failure to consult with her about the downgrading of her duties from an APS6 to an APS5 level, and the failure to warn her of the possibility of that downgrading sooner than the day before it took effect, was unreasonable.

    (c)The way in which the meeting was called and conducted by Mr Rowland was inappropriate and caused her great distress, meaning that it could not have constituted administrative action taken in a reasonable manner. She alleged that he used intimidating body language to stop the discussion in the meeting.

18. The Tribunal will consider each of these contentions in turn.

    Did the department apply the correct policies?

19. Ms Harrison maintained that, in terminating her role at the APS6 level on 29 February 2016 and starting her in an APS5 role the following day, the department had reclassified her position. She submitted I did not change – the APS6 position changed to an APS5 position. It was common ground between the parties that, if her position had indeed been reclassified, the JE Policy should have been deployed to effect that reclassification.

20. In support of this characterisation of what occurred, Ms Harrison pointed to a passage in Comcare’s original determination dated 7 June 2016, denying liability for her injury, where the delegate found:

    …your acting position at the APS6 level had expired and that acting position being reclassified to an APS5 level did occur.

    Additionally, in Comcare’s reconsideration of that decision, dated 2 August 2016, the delegate there noted that it was open to the Department to conduct a job evaluation of the position temporarily occupied by you, and that I am satisfied that action taken to re-classify the role was not a reflection on your performance.

21. Ms Harrison also referred to an email of Mr Rowland of 12 July 2016, describing the meeting of 29 February 2016, where he referred to the process that Anthony and I had gone through to evaluate the nature of Jo’s role… (emphasis added)

22. Ms Harrison also relied on the evidence of Mr Tony Caruana, a delegate of the Community and Public Sector Union in the department. His written and oral evidence to the Tribunal was that, at the meeting of 29 February 2016, Ms Harrison was told that the position in which she was acting was changing from an APS6 to an APS5, and that this supported the view that her APS6 position was being reclassified. Reclassification of her position, he said, should have triggered the department’s JE policy, and it was clear that the JE Policy was not followed.

23. Mr Caruana conceded under cross-examination that his opinion about there having been a reclassification might change if the APS6 position had continued to exist after Ms Harrison commenced in the APS5 role from 1 March 2016.

24. Against this evidence stands the contrary opinion of other officers of the department. Both Mr Rowland and Mr Cowley gave evidence that Ms Harrison’s position had not been reclassified; rather, a rolling series of approvals for her to act in the APS6 position came to an end on 29 February 2016, based on their view that the business of the branch no longer required an officer at that level. Ms Harrison had been offered TPA for an APS5 position from 1 March 2016; as such the TPA Policy applied, but not the JE Policy.

25. The Tribunal also took evidence from Ms Debra Baker, who had recently retired after 15 years as a senior HR advisor within the department. She told the Tribunal she had been consulted by Mr Rowland about the restructuring of the NCLD in February 2016. Her evidence was that I did not think that Mr Rowland was attempting to re-classify or amend any substantive position with the NCLD, and:

    The Job Evaluation Policy applies when substantive (permanent) APS positions are advertised, created, terminated or re-classified. …

    [Ms Harrison’s] circumstances did not fall into the above categories and therefore the job evaluation policy did not apply. In [Ms Harrison’s] circumstances, her temporary acting arrangements were coming to an end and Mr Rowland considered there was no longer a business need for an employee to be engaged in temporary duties at an APS6 level. Other employees were also assessed in this way.

26. Comcare also tendered a legal opinion from Ms Paula Stratton, a senior lawyer in the department’s Legal Services Group. The report appears to have been prepared in April or May 2016. Ms Stratton acknowledged in her legal opinion that the issue of whether there had been a reduction of Ms Harrison’s classification was unclear, but nonetheless formed the view that:

    I am not satisfied that the position was ‘reclassified’. In my opinion the change in business and operational requirements impacted on the need for the temporary performance arrangement at the APS6 level to cease and in its place, Mr Rowland identified a need for temporary performance arrangement [sic] at the APS5 level to commence.

    She identified that the APS6 position carried a position number and that:

    The APS 6 position (50003116) remains in the same section as a vacant position. It has not been abolished.

27. She concluded that, despite some confusion in nomenclature, there had not been a technical re-classification of the APS6 position as contemplated under the Act or the Job Evaluation Policy.

28. There was other evidence about what departmental officers had said at meetings in 2016 in relation to the application of the JE Policy; some of that evidence was disputed. The Tribunal has not set out that evidence in detail given that the views expressed were no more than opinions.

29. Ms Harrison pointed to another departmental policy which, she asserted, had not been followed with respect to her employment. The department’s Internal Recruitment Advertising Policy, which appears to date originally from September 2014, was tendered. That policy refers, inter alia, to the internal advertising of vacancies within the department and stipulates:

    ·Temporary vacancies from one to three months require, at minimum, a Branch EOI process.

    ·All vacancies, ongoing or temporary over three months, require an all-staff EOI process.

    It was common ground that the APS5 position into which Ms Harrison was placed from 1 March 2016 was a temporary vacancy lasting for four months, and that neither a Branch nor an all-staff expression of interest process had been carried out before she was offered the position. Ms Harrison contended that the department’s placement of her in this position could not constitute reasonable administrative action if its own Internal Recruitment Advertising Policy had not been observed. She told the Tribunal that the policy was still available to view on the department’s intranet site. Ms Harrison also maintained that no job description had been given to the APS5 position, again in breach of the policy.

30. Ms Baker, on the other hand, told the Tribunal that the Internal Recruitment Advertising Policy had been superseded, and that the relevant policy was the TPA Policy which required that temporary vacancies need not be filled through advertising if they were no longer than six months. She was unsure, however, as to exactly when the Internal Recruitment Advertising Policy had been superseded.

31. Finally, Ms Harrison put to the Tribunal that the failure to consult her was in breach of the department’s Enterprise Agreement 2015 to 2018. Part 10 of that agreement requires the department to discuss with the relevant employees any changes likely to have a significant effect on them. At clause 10.9, change likely to have significant effect is defined to include the restructuring of jobs. Ms Harrison also referred to the Australian Public Service code of conduct which refers to:

    …providing flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued.

32. Ms Baker said that the requirement in the EA for discussion with the relevant employees was focused on those holding substantive positions, not TPA positions. Mr Cowley, in his evidence, considered that the consultation requirements of the EA had been met in this case.

    Consideration

33. It is evident to the Tribunal that there was some confusion within the department after February 2016 about which policy or policies applied to Ms Harrison’s situation. That confusion extended, it seems, to Comcare’s determinations. Nonetheless, the weight of evidence suggests that Ms Harrison’s APS6 was not reclassified, and that the JE Policy was not triggered in her case. Ms Stratton’s legal advice is particularly persuasive in this regard.

1. It is somewhat less clear as to whether the department acted in breach of its Internal Recruitment Advertising Policy. Ms Harrison’s (uncontradicted) evidence that the policy was still available on the department’s intranet site would suggest that it had in fact not been superseded. However, even if Ms Harrison’s proposition were accepted by the Tribunal, it leads to the conclusion that Ms Harrison was awarded, and served in, an APS5 position for a period of several months in breach of the department’s policies. It is difficult to see how Ms Harrison could be said to have suffered a psychological injury by virtue of receiving a benefit to which she was not entitled. The awarding of the position may not qualify as reasonable administrative action, but it is also evidently not administrative action as a result of which she suffered an injury, in the terms specified in s 5A(1).

2. Much the same can be said of Ms Harrison’s claim that she was administratively allocated to the APS5 role by her supervisor while she was on leave, so that there was no opportunity for me to say no. When she returned to work she accepted the APS5 role, meaning that her supervisor’s actions conferred a benefit, i.e. no lacuna in her pay.

3. The consultation provisions in the Enterprise Agreement and the APS code of conduct are broadly framed, and the evidence of Ms Baker and Mr Cowley, officers who had senior bureaucratic roles in interpreting those provisions, was that those provisions were honoured in Ms Harrison’s case. The Tribunal is not satisfied that any breaches of those provisions had been demonstrated.

   A failure to consult or to warn

4. Ms Harrison told the Tribunal that the department’s failure to consult with her about the downgrading of her duties from an APS6 to an APS5 level, and the failure to warn her of the possibility of that downgrading sooner than the day before it took effect, was unreasonable. The reality of that failure struck her at the meeting of 29 February 2016. She submitted:

   I left work immediately after the meeting very distressed by what had just occurred, i.e. I had been given no warning that my job was being evaluated; that my job was being reclassified; and that my demotion was to commence the following morning meaning I had just incurred a substantial and immediate pay cut.

5. Her GP recorded the following in her clinical notes of a consultation on 4 March 2016:

   No warning of meeting and proper processes not followed. Felt ambushed and shocked Left in distress on Monday and cannot face returning at present.

6. Ms Harrison placed considerable emphasis on the context of the decision that was conveyed to her at the meeting on 29 February 2016. Just two days prior to the meeting, her supervisor, Ms Harkin, had awarded her a performance appraisal of superior in her mid-cycle review. Ms Harrison was aware of general “noise” about a restructure – Mr Rowland had sent several all-staff emails flagging this in the preceding weeks – but did not consider that it was likely to affect her role.

7. In particular, she had an expectation that her APS6 role would continue for at least 12 months from July 2015. This was on the basis that the EOI process she had contested and won in mid-2015 had described the position being filled as ongoing. She told the Tribunal that it was generally understood around the public service that an ongoing position was one that would last for at least 12 months. She conceded however that she was never specifically told this, nor was any paperwork produced verifying the 12 month time frame. Significantly, the 12 month time frame was not reflected in the SAP ESSentials database, the departmental reference tool for managers to understand staff entitlements.

8. The impression that the restructure would not affect her had been reinforced by the desultory nature of the discussions with her about her role. She said that she had had a very brief 20 minute chat with Ms Harkin and Mr Crowley about her duties and the nature of her role, and that Mr Rowland had never discussed her role with her. As a result, she had expected her TPA to be rolled over once again at the end of February 2016. She further contended that, if she was to endure a $7000 pay cut by virtue of her TPA not being rolled over, she should have been warned of this sooner than the day before the pay cut took effect.

9. She also felt strongly that the nature of the role she performed was appropriately pitched at the APS6 level. He pointed out that the duties which Mr Rowland announced at the 29 February meeting would be excised from her position in order that it would continue as an APS5 – related to data entry and to FloSse, an online research repository – were lower order duties which still left the role as one requiring a designation at APS6 level.

10. Mr Rowland told the Tribunal that, when he set out on the review of its business functions in October 2015, the NCLD had consisted of about 40 staff, including contractors. To assess its business requirements he and Mr Cowley undertook consultations with key personnel, including the branch manager, two previous directors at the NCLD, Ms Harkin, Ms Baker and other staff at the centre. Gatherings of NCLD staff were also held. They considered, he said, the Australian Public Service Commission’s work level standards, the JE Policy and the TPA Policy. With respect to Ms Harrison’s role, they came to the conclusion that the NCLD no longer required a temporary APS6 employee and that a temporary APS5 employee would better suit its business needs. They also concluded that, although her workload was high:

    …the complexity of her duties, judgement and decision making was commensurate with APS 5 work level standards. Mr Cowley and I also considered that, going forward, certain aspects would be removed from [Ms Harrison’s] role, which were at an APS 6 level, because following our review, we considered these aspects were no longer required to be undertaken by that role.

11. Mr Rowland told the Tribunal that he and Mr Cowley finalised their decision making about Ms Harrison’s position in a telephone conversation on the morning of 29 February 2016, and Mr Rowland undertook to advise Ms Harkin of the outcome. When he did so that afternoon, Ms Harkin expressed her disagreement, as a result of which it was agreed that Mr Rowland, and not Ms Harkin, would tell Ms Harrison about the decision.

12. Mr Cowley’s evidence was in a similar vein to that of Mr Rowland. He told the Tribunal that he had had several conversations with Ms Harrison about the nature of her role in the weeks prior to the 29 February meeting; Ms Harrison insisted that there had been only one such conversation. He said that he and Mr Rowland did not consider advising individual staff of how it was being contemplated that their roles might change under the restructure because such process would be unsettling before the decisions were actually made. Ms Baker supported that approach. Mr Cowley also said that – at least until he left the department about six months ago – the APS5 position which had been put in place to manage access to the NCLD datasets from February 2016 had worked well.

13. In her evidence, Ms Harkin confirmed that she disagreed with the decision that Mr Rowland and Mr Cowley had made about the appropriate level at which Ms Harrison’s work should be performed. However, she admitted that she had no experience in classifying roles at the APS5 or APS6 level, and that this was a role which appropriately fell to Mr Rowland and Mr Cowley in the NCLD context. She also agreed with Ms Harrison in cross-examination that there was a lack of clarity in the duties of the new APS5 role following the meeting of 29 February. She said that she had a meeting with Mr Rowland and Mr Cowley a few days later where she was asked to go away and design the duties pertaining to the new role.

14. Ms Baker gave evidence in relation to the use of the term ongoing in the EOI process used to fill the temporary APS6 role in mid-2015. She said that the term connoted that the vacancy was not specifically time-limited. For example, she said that if a vacancy has arisen because a staff member was on maternity leave, it would be described as non-ongoing, pending the return of that staff member. Ongoing did not specifically imply a position of 12 months duration. She also testified that the nature of a TPA position was such that it could be terminated at any time, depending on the employer’s business requirements. In the case of Ms Harrison’s TPA expiring on 29 February 2016, no particular administrative step or notice was required, Ms Baker said, for this to end.

15. Ms Baker told the Tribunal that departmental best practice did not require advising staff of how their roles might change prior to decisions being made under a restructure. She considered that Mr Rowland followed the correct process in determining whether Ms Harrison’s temporary duties should continue.

16. During the hearing Ms Harrison placed some emphasis on a Selection Report produced after she won the acting APS6 role in June 2015. That report describes the Length (if temporary) of the position as 12 months. Ms Harrison contended that this report showed that her expectation that the APS6 position would continue for 12 months was a reasonable one. Ms Baker told the Tribunal, on the other hand, that the reference to 12 months was a device to set the parameters within which the acting role could continue, not a guarantee of TPA for that period. In any case, Ms Harrison did not become aware of the selection report until after 29 February 2016, meaning that it could not have contributed to the expectation she held on that date of a continuation in her TPA.

    Consideration

17. After hearing the evidence, the Tribunal considers that it was the downgrading of Ms Harrison’s role to the APS5 level which lies at the heart of the psychological injury she suffered on 29 February 2016. She clearly believed that she was performing well in that role and that, as the incumbent, she should have been consulted about the proposal to restructure her position.

18. Plainly, some reappraisal of the business model of the NCLD was timely in late 2015, given changes in its operating environment. To the best of the Tribunal’s observation the exercise undertaken by Mr Rowland and Mr Cowley in this respect was diligent and workmanlike. Both men outlined in some detail the process they had used to make their decision, and the reasoning that led them to reassess the level at which the work being performed by Ms Harrison should occur. Evidently enquiries were made of relevant stakeholders about the nature and design of the work of the Centre; in Ms Harrison’s case, this may have consisted of no more than a brief discussion with her and other discussions with her supervisor, Ms Harkin. The fact that a full job description for the new APS5 position was not ready as at 1 March 2016 appears to be of little moment, particularly given that Ms Harrison was then on leave and some weeks away from returning to work.

19. Given the scope of the exercise, one affecting some 40 staff across two sections, there seems nothing inherently inadequate or unreasonable about this aspect of the process. Nothing, for instance, can be said to turn on the fact that Mr Cowley, but not Mr Rowland, discussed Ms Harrison’s role in the Centre with her. Equally, Ms Harrison’s previous performance in her role (at the superior level) was of little relevance; the exercise revolved around the Centre’s business requirements, not staff performance.

20. It is not the role of the Tribunal to second-guess the conclusions that they reached, either generally or specifically in relation to Ms Harrison’s role. Even if such a task could be said to have fallen to the Tribunal to perform, the only evidence before it in this respect was Ms Harrison’s opinion that the wrong decision was made about the nature of the work she had been performing; no material was presented to independently support that opinion. The Tribunal accepts the evidence of Mr Rowland, Mr Cowley and Ms Baker that there would have been latent risks in advising individual staff members of how a restructure might personally affect them in advance of those decisions being made. In summary, the Tribunal considers that the process of restructuring the NCLD, including the impact of that process on Ms Harrison’s role, was reasonable in concept and execution.

21. The announcement of how the restructure affected her had greater impact because it overturned Ms Harrison’s clear expectation that her APS6 position would remain undisturbed until at least July 2016. The question Tribunal must consider in this context is not whether it was reasonable for Ms Harrison to hold that expectation, but whether it was reasonable of the department to have considered that she might hold such an expectation, and to modify its handling of the restructure against that possibility.

22. It does not appear that Mr Rowland and Mr Cowley considered that she might hold this expectation, at least not – in the case of Mr Rowland – until a few minutes before the decision was communicated to her on 29 February 2016. Ms Harkin told the Tribunal that she had assumed that Ms Harrison would occupy her APS6 position for 12 months, but agreed in cross-examination that she had no basis for that assumption, and that it was made in naiveté or ignorance. The assumptions of Mr Rowland and Mr Cowley aligned with the view put by Ms Baker of what an ongoing TPA position actually meant. They also aligned with the staffing records for Ms Harrison disclosed in the SAP ESSentials database.

23. Ms Harrison told the Tribunal she had never communicated her expectation, orally or in writing, to others at NCLD. Nonetheless, both Mr Rowland and Mr Cowley testified that, with the benefit of hindsight, they would have engineered a different process for advising her of the decision. Mr Rowland, for example, suggested that he might have advised her of his decision a few days earlier than he did. Acknowledging this is not the same, however, as conceding that the process was intrinsically unreasonable as carried out. Both men made the point that Ms Harrison’s TPA was due to expire that very day, and that without any further action she would have reverted to her substantive position (and pay rate) of an APS4 the following day. Technically, what she was being advised was that she was to receive a benefit from that day, namely the offer of an acting APS5 position. On this basis, it should have been foreseeable to Ms Harrison that some downward adjustment to her duties and pay rate were in the offing as the latest phase in her TPA came to an end.

24. Ms Baker’s evidence was that Mr Rowland had executed the restructure in accordance with her advice, and that proper process had been employed. Against this Ms Harrison was unable to point to any specific policy or rule applying to her position which had been violated during the process (excepting the JE Policy which the Tribunal has already found did not apply). Against this background, the department’s approach to restructuring its business model at NCLD must be regarded as appropriate, as must its decision not to specifically consult Ms Harrison about the future of the position of which she was merely a temporary occupant. It was also not reasonable to have foreseen, and made allowances for, Ms Harrison’s view that she owned this position.

25. With respect to these aspects of the actions taken on 29 February 2016, the Tribunal finds that they fall within the exemption in s 5A(1).

    Conduct of the 29 February 2016 meeting

26. Ms Harrison contended that the meeting of 29 February 2016 was not conducted reasonably. She contended specifically that she had been given no notice or warning of the meeting; that Mr Rowland was abrupt and intimidating toward her during the meeting; and that she was not afforded an opportunity to bring a support person with her to hear the bad news.

27. With the exception of the last of these contentions, there seems, with respect, to be little substance to them. Given that Ms Harrison was being advised of a decision that it was reasonable for her employer to make – as opposed to consult with her about – in respect of her TPA, it is difficult to see what difference notice of the meeting would have made. It is plain that it was the nature of the decision, and not the timing of the decision, which affected her most acutely. There is no reason to suppose that she would not have suffered an injury if the meeting had occurred, say, two days previously.

28. Ms Harkin’s evidence was that the meeting lasted about five minutes, after which Ms Harrison left abruptly. As to Mr Rowland’s behaviour, both he and Ms Harkin gave evidence that it had been appropriate and proper. When pressed, Ms Harrison had difficulty putting flesh on the bones of her allegation of inappropriate conduct. She indicated that Mr Rowland had used certain hand gestures, but the Tribunal struggled to understand what it was about these gestures that could be considered aggressive or intimidating. She also said that Mr Rowland appeared to ignore her objections to his decision; this must be seen as unsurprising, given that what was occurring was an announcement, not a consultation.

29. The failure to invite Ms Harrison to bring a support person to the meeting is of greater concern. Whatever Mr Rowland’s expectations prior to the afternoon of 29 February 2016, there can be no doubt from the vicarious reaction of Ms Harkin to his decision that it was likely Ms Harrison was going to find it upsetting. Whether that reaction was reasonable or not is beside the point; that it was likely to be distressing should have brought about consideration of the precaution of having a support person present to soften the blow.

30. Mr Caruana put it to the Tribunal that whenever a significant decision is made about a person’s employment, they are entitled to have a support person present to hear that decision.

31. Mr Rowland told the Tribunal that he thought Ms Harkin might serve as a support for Ms Harrison at the meeting, given her clear empathy for Ms Harrison’s situation. Ms Harkin said that she saw her role as providing moral support to Ms Harrison. In that vein she went downstairs and spoke to Ms Harrison after the meeting. Comcare also pointed to the evidence of Ms Baker, to the effect that it is accepted practice to offer an employee who is subject to a performance assessment process the option of a support person, but not common practice to do so outside that context.

32. Nonetheless, Mr Rowland was on notice of sorts that afternoon that Ms Harrison might need the services of a support person. It would quite evidently have been better to have availed her of that opportunity. For example, she told the Tribunal that she might have had better recall of what occurred in the meeting had she had a support person with her, a relevant consideration given the significance in these proceedings of what transpired there.

33. In Comcare v Martinez (No2) 302 ALR 608 Robertson J held that administrative action did not become unreasonable merely because alternative reasonable courses of action were available to the employer. His Honour said (at [81]):

    The further error of law which the applicant contends is evident in this paragraph goes to the issue of alternatives. In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.

34. His Honour added (at [83]):

    I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation (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.

1. To similar effect the Tribunal in Lee and Comcare [2012] AATA 867 observed:

   There will frequently be a range of ways in which administrative action might be taken reasonably as well as a range of ways that are unreasonable. Here, I consider, the action was taken in a reasonable manner even though, with the benefit of hindsight, it may now be said that the actions could have been done better.

2. Whenever a court or tribunal appraises administrative action against the scope of the s 5A exemption, it sends a signal to employers covered by the Act as to what workplace behaviour falls within the tolerance of the section and what falls outside it. By deeming Mr Rowland’s handling of Ms Harrison’s anticipated distress in this instance to be reasonable administrative action, some succour might be given to others in future to take the same approach. The Tribunal as presently constituted is reluctant to send such a signal. Equally, to pronounce that it is not reasonable administrative action might be said to establish a new managerial benchmark pitched at an unrealistically high level.

3. On balance the Tribunal considers that the failure to offer Ms Harrison a support person on 29 February 2016, while some way from ideal, falls nonetheless within the boundaries of reasonable administrative action taken in a reasonable manner, as calibrated by the decisions in Martinez and Lee.

   CONCLUSION

4. Having acknowledged the clear evidence that an administrative action related to Ms Harrison’s employment caused her a psychological injury, it then fell to Comcare to demonstrate to the Tribunal that the actions in question were reasonable, and were carried out reasonably, if it sought the protection of s 5A. The Tribunal finds on the balance of probabilities that Ms Harrison was injured by her failure to retain a benefit (namely a TPA at the APS6 level), a head of reasonable administrative action referred to in s 5A(2)(f).

5. Despite her best efforts, Ms Harrison was in turn unable to demonstrate that any of the steps taken by the department in this process were in some way unreasonable, or were executed unreasonably. In contrast Comcare was able to demonstrate reasonableness in the employer’s actions.

6. Although, in principle, action which is lawful can nonetheless be unreasonable, in this instance all the steps taken by the department in respect of her employment seem to have been in accordance with the relevant policies and administrative practices. The one possible departure from this finding is the failure to offer Ms Harrison the choice of a support person on 29 February 2016, but the Tribunal does not regard this arguable lapse as serious enough to invalidate what was otherwise a reasonably conscientious exercise as part of an appropriate administrative restructure.

7. The essence of what injured Ms Harrison on that day was the clash between the department’s administrative decision and her firm conviction that no such decision could be taken without her active involvement. There was simply no good basis on which to hold such a conviction, and as such a claim for compensation based on that conviction cannot be upheld. The test imposed by the s 5A exemption is concerned only with the objective reasonableness of the employer’s actions, not the subjective expectations and subsequent reaction of the employee.

8. I find the administrative action taken by the employer with respect to Ms Harrison’s employment was reasonable, and was undertaken reasonably. The reviewable decision of 2 August 2016 must therefore be affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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

Associate

Dated: 19 July 2017

Date(s) of hearing:	4, 5, 6 July 2017
Applicant:	In person
Counsel for the Respondent:	Sarah Wright