Hatfield and Comcare
[2010] AATA 848
•1 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 848
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/0507
)
GENERAL ADMINISTRATIVE DIVISION )
Re PETER HATFIELD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date1 November 2010
PlaceCanberra
Decision The decision under review, in which Comcare rejected liability to pay Mr Hatfield compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for ‘adjustment reaction’, is affirmed.
.....................[sgd].....................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – psychiatric injury – exclusion from liability if injury as a result of ‘reasonable administrative action taken in a reasonable manner’ – Applicant deployed on overseas posting – request for removal by host government – manner of removal – obligations under Vienna Convention on Consular Relations 1963 – procedural fairness – investigation into alleged breaches of Code of Conduct – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A(1),(2), 5B(1),(2), 7(4),14,
Vienna Convention on Consular Relations 1963
Comcare v Chenhall (1992) 37 FCR 75.
Re Kavanagh’s Application (2003) 204 ALR 1
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37
Re Gilbert and Comcare [2009] AATA 224
Re Georges and Telstra Corporation Ltd [2009] 731
Re Radulovic and Comcare [2010] AATA 777
Repatriation Commission v Webb (1987) 13 ALD 421
Re Reubinson and Comcare [2010] AATA 676
Ridge v Baldwin [1964] AC 40
South Australia v Slipper (2004) 135 FCR 259.
REASONS FOR DECISION
1 November 2010 Professor RM Creyke, Senior Member
1. Mr Peter Hatfield was employed by AusAID, initially as a permanent employee, and after the age of 55 he worked under short-term, renewable contracts. While in Nauru on an AusAID posting under a twelve month contract that was due to expire on 2 February 2009, Mr Hatfield suffered a psychological injury. He sought compensation from Comcare on 5 March 2009 for a condition he described as ‘severe mixed anxiety and depression’, which he claimed he first noticed on 7 January 2009.
2. On 9 September 2009, Comcare rejected the application for ‘adjustment reaction’ on the ground that the condition was not an ‘injury’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘Act’), since it found that the injury resulted from reasonable administrative action taken in a reasonable manner within section 5A(2) of the Act.
3. Comcare upheld that view in its reviewable decision dated 22 December 2009. Mr Hatfield appealed that decision to this Tribunal on 8 February 2010. The Tribunal heard the matter on 1 September 2010.
Legal framework
4. To be eligible, Mr Hatfield must establish that he is seeking compensation in accordance with the Act ‘in respect of an injury suffered by an employee [which] results in … incapacity for work, or impairment’.[1]
[1] Act, s 14.
5. To be an ‘employee’ requires, as relevant, that the applicant be ‘a person who is employed by the Commonwealth or by a Commonwealth authority’.[2]
[2] Act, s 5(1)(a) – ‘employee’.
6. ‘Injury’ is defined, as relevant, as a ‘disease suffered by an employee’.[3] ‘Disease’ is further defined, as relevant, as an ‘ailment suffered by an employee … that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth’.[4] Finally, an ‘ailment’ means ‘any … mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’,[5] and an ‘impairment’ means ‘the …. damage or malfunction of any part of the body or of any bodily system or function’.[6]
[3] Act, s 5A(1)(a) – ‘injury’.
[4] Act, s 5B(1)(a).
[5] Act, s 4(1) – ‘ailment’.
[6] Act, s 4(1) – ‘impairment’.
7. However, to be a compensable ‘injury’ the claimed condition must not be ‘a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’.[7] ‘Reasonable administrative action’ is defined in section 5A(2) of the Act.[8]
[7] Act, s 5A(1).
[8] Act, s 5A(2).
8. An ‘injury’ is taken to be sustained on the deemed date of injury, namely, ‘on the day when (a) the employee first sought medical treatment for the disease’ or (b) the disease …. first resulted in the incapacity for work, or impairment of the employee’.[9]
[9] Act, s 7(4).
9. The Vienna Convention on Consular Relations 1963 (‘Vienna Convention’), a treaty which Australia has ratified, defines the framework for consular relations between countries. The Convention provides in Article 23 that the ‘receiving State may at any time notify the sending State that a consular officer is persona non grata’ and in that event ‘the sending State shall … either recall the person … or terminate his functions with the consular post’. Failure to act may mean that the receiving State refuses to recognise the person’s functions at the mission, which in effect denies the person’s right to remain in the country. The recall must be carried out ‘within a reasonable period’. In addition, Article 23(4) states that ‘the receiving State is not obliged to give to the sending State reasons for its decision’.
10. AusAID has a Code of Conduct for Overseas Service. Relevant clauses are:
· Upholding Australia’s Reputation
2.Employees who are overseas because of circumstances attributable to their employment have a duty to act at all times in a manner which upholds the good reputation of Australia, and which contributes to the good reputation of AusAID and any Australian mission with which they are associated. The duty to uphold the good reputation of Australia is fundamental, and underlies the approach to particular principles of conduct overseas elaborated under the sub-headings below. …
· Appropriate Personal Behaviour
5.1In general, the personal behaviour outside working hours of an employee overseas is of no concern of AusAID. However, an employee shall not engage in behaviour at any time which is likely to affect adversely the employee’s ability to perform his or her duties, or the ability of his or her mission to achieve its objectives, or which is likely to bring the mission or Australia into disrepute. Employees should pay particular attention to ensure their behaviour meets the standards expected in that country. Where an employee is in any doubt as to the applicability of this principle, he or she should seek advice from a supervisor and, if necessary, AusAID, Canberra. …
·Respect for Others and Tolerance of their Opinions
7.1. As in Australia, employees overseas have a duty to contribute to the effective functioning of the workplace by treating their colleagues and the public with respect. Even more than in Australia, this will require particular attention to the possibly very different cultural backgrounds, beliefs and opinions of the people encountered in the workplace and outside it. This principle is central to good relations with [overseas-based] and domestic staff, and is important to effective performance in all overseas environments.
Issues
11. Preliminary issues are:
·whether Mr Hatfield suffered an ‘injury’ that was contributed to, to a significant degree, by his employment by AusAID;
·what is the nature of the injury; and
·what is the deemed date of the injury.
12. The principal issue, however, is:
·whether the claimed injury arose ‘as a result of reasonable administrative action taken in a reasonable manner’ by AusAID during Mr Hatfield’s employment on Nauru.
Background
13. Mr Hatfield was formerly employed by AusAID. He was posted to Nauru as the First Secretary, Development Cooperation, from 3 February 2008 for one year on a non-ongoing contract. He was one of few Australian personnel on the island, employed by either AusAID or the Department of Foreign Affairs and Trade (DFAT). The expatriate community on Nauru was about 60 persons, and there were a limited number of hotels, restaurants or cafes and places for social or recreational occasions. The Hash House Harriers Group, a regular gathering for the expatriate community in Nauru, was one such social group that met each Tuesday.
14. Mr Hatfield’s family had not initially joined him on the posting. However, when he was advised by AusAID in October 2008 that his contract would be extended until February 2010, he arranged for his family to join him in December 2008. His family also visited him in July 2008.
15. Mr Hatfield met Ms Uhjin Kim, a pharmacist in Nauru under the United Nations Volunteer (UNV) program, not long after his arrival in February 2008. They became friends when Ms Kim discovered that Mr Hatfield had adopted two children from her birth country. She said she saw him on two occasions: on 5 March 2008; and again on 9 March 2008 at a picnic. It is recorded that on each occasion he had tried to embrace her, and that Ms Kim made it clear she found his embraces uncomfortable. On 9 March 2008, she told Mr Hatfield firmly that she was not interested in him. Mr Hatfield confirmed that on 15 April 2008 Ms Kim warned him that if he persisted in trying to maintain contact with her as he had, for example, by email or in person, she would contact Mr George Fraser, the Australian Consul-General and Head of Mission in Nauru, as well as the Secretary of Health, Nauru, and AusAID and advise them of his behaviour.
16. Mr Fraser provided evidence to the Tribunal of a diary note that detailed a discussion he had with Mr Hatfield on 16 April 2008, which Mr Hatfield initiated. The note indicates that Mr Hatfield acknowledged that he had not been entirely proper in his relationship with Ms Kim, and that he had spent time with her on her own while he was drinking. In the note, Mr Fraser records that Mr Hatfield had ‘made a pass at [Ms Kim]’. Mr Hatfield, however, at the hearing contested the veracity of this recorded comment to the Tribunal. Mr Fraser also noted that Mr Hatfield had apologised in writing to Ms Kim and agreed with Ms Kim’s request not to contact her. Mr Fraser advised Mr Hatfield to abide by his agreement.
17. Despite this warning, Mr Hatfield continued to correspond with Ms Kim by email. Accordingly, Ms Kim contacted Mr Fraser and relayed her concerns. Mr Fraser than spoke with Mr Hatfield and told him he was not to approach Ms Kim unless the matter was work-related. Mr Fraser sent Mr Hatfield an email, dated 6 May 2008, which asked Mr Hatfield to approve a record of undertaking that he would no longer make personal contact or communication with Ms Kim, unless it was for a work-related purpose.
18. In July 2008, Ms Fraser’s wife visited Nauru. For the purposes of a social occasion, Mr Hatfield drove Mrs Fraser to a regular beach get together, which Ms Kim also attended. Following this encounter, on 7 July 2008, at Ms Kim’s request, Mr Fraser reminded Mr Hatfield of his direction in May 2008 that Mr Hatfield acknowledged. Mr Hatfield complied scrupulously with the agreement between July and November 2008.
19. An investigation report prepared for AusAID by Quality Management Solutions, dated April 2009, found that even in December 2008 Mr Hatfield and his family were still attending functions at which Ms Kim was present. These functions included a social gathering on 10 December 2008 at Mr Fraser’s house, a beach gathering on 14 December, and a staff function at the local hospital on 20 December, which was attended by expatriates, including Mr Hatfield and his family and Ms Kim. Ms Kim was reportedly distressed by Mr Hatfield’s attendance at the 20 December function and refused to perform for the entertainment of the guests, as she had intended to do. According to Mr Fraser’s statement of facts, it was Ms Kim’s belief that Mr Hatfield and his family were not invited to the function. Mr Hatfield stated in evidence that he and his family were invited by a local staff member. There was no contact between Mr Hatfield and Ms Kim on that occasion.
20. On 5 January 2009, Ms Kim met with the Nauru Secretary for Health. Following that meeting, she prepared a formal letter of complaint, alleging Mr Hatfield had sexually harassed her and later that day she lodged it with the Nauru Government and also to a representative of the UN.
21. The complaint of sexual harassment by Ms Kim was provided informally to Mr Fraser on the afternoon of 6 January 2009 by the Nauru Foreign Minister. Mr Fraser then informed the Assistant Secretary of Staffing at DFAT and was advised to contact Mr Christopher Layt, Director of Human Resources Services and the acting Assistant Director General of AusAID at the time, to also inform him of the complaint. At 5.35 pm (Canberra time), Mr Fraser sent the Minute from the Nauru Government by email to AusAID, with the formal sexual harassment complaint attached.
22. Mr Fraser spoke with Mr Layt at 6.01 pm (Canberra time) and advised that he knew of Ms Kim’s concerns in the first half of 2008. He also said he became aware, through others, of her complaints in late 2008 and he had been directly aware of her final complaint of Mr Hatfield’s attendance, allegedly uninvited, at a hospital function in December 2008. It was agreed that AusAID would discuss the issue with Mr Hatfield and would get back to Mr Fraser in a few days. Mr Fraser said he did not believe that Mr Hatfield’s safety was threatened at any time.
23. On 7 January 2009, before 9.30am, Mr Fraser informed Mr Hatfield of the allegations, provided him with a copy of the complaint and the request for his removal, and informed him that the matter had been referred to AusAID and DFAT. He also advised that someone from Human Resources (HR) at AusAID would contact him. On reading the complaint, Mr Hatfield said the allegations were exaggerated and not true. In evidence to the Tribunal, Mr Hatfield also said that Ms Kim had misconstrued his so-called ‘embraces’, which he said were no more than a ‘continental greeting’, that is, kisses on both cheeks.
24. On 7 January 2009, at 9.30 am, the Foreign Minister of Nauru formally advised Mr Fraser of the complaint and handed him a Memorandum to which the complaint was attached. The Memorandum requested the removal of Mr Hatfield from Nauru and that AusAID investigate the matter on Mr Hatfield’s return to Australia.
25. Later on the morning of 7 January 2009, Mr Christopher Layt informed Mr Hatfield that he was arranging for his return to Australia, and that, in view of the further request by the Nauru Government, an investigation would be conducted for a suspected breach of the Australian Public Service (APS) Code of Conduct. Mr Layt said it had not yet been decided whether this would be conducted as an internal investigation or an external investigation. A statement of facts from AusAID, dated 21 April 2009, recorded that on 8 January 2009 an external consultant was approved to undertake that investigation.
26. Mr Layt also said Mr Hatfield’s permission was sought for AusAID’s Staff Counsellor to speak with Mr Hatfield and his wife. He told Mr Hatfield that normal practice would be to end the contract immediately, but he assured Mr Hatfield that AusAID would continue to employ him on a non-ongoing basis, while the investigation took place.
27. At 11.52 am on 7 January 2009, Mr Fraser reported in a cable to DFAT that he had shown the complaint to Mr Hatfield, and advised Mr Hatfield that AusAID was to arrange for his removal. On the morning of 9 January 2009, Mr Hatfield and his family departed Nauru. This was a month before his first posting to Nauru had officially expired.
28. On 12 January 2009, Mr Hatfield was told by AusAID that he could return to work at the Nauru desk in AusAID in Canberra on 27 January 2009, following two weeks’ leave, and that an external investigator had been appointed.
29. On 13 January 2009, Ms Lynch, the Manager of the Ethics and Welfare Unit at AusAID, telephoned Mr Hatfield to confirm the engagement of an external investigator, and advised him that he would receive a letter from AusAID explaining the investigation process. She said the investigator would be contacting him to arrange an interview and to seek advice as to others Mr Hatfield should contact. She also provided details of AusAID’s Staff Counsellor and Employee Assistance Services.
30. On 28 January 2009, the investigator wrote to Mr Hatfield advising him of the process for an investigation under the Public Service Act 1999 (Cth) and that fair process would be followed. The letter invited a submission from Mr Hatfield, to be provided through Mr Layt, and that he could nominate relevant persons for the investigator to interview.
31. On 6 February 2009, Mr Hatfield provided an initial submission. He made an amended submission on 24 February 2009, and was interviewed by the investigator on 26 February 2009.
32. On 23 March 2009, Mr Hatfield was told that the investigator’s report was likely to be received by 27 March 2009. A draft for comment was provided to him on 31 March 2009. On 8 April 2009, the investigator received Mr Hatfield’s comments. In his submission in response to the investigation, Mr Hatfield claimed that the complaint of sexual harassment was politically motivated in response to concerns Mr Hatfield had conveyed to the Government of Nauru on 5 January 2009. On 12 May 2009, Mr Hatfield was provided with a copy of the redrafted report and given the opportunity to provide further comments.
33. On 14 July 2009, Mr Hatfield was informed of the findings, which were that he had breached two clauses of the APS Code of Conduct. These were clause 13(11) (‘An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’) and clause 13(12) (‘An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of the APS’).
34. These findings were made based on breaches by Mr Hatfield of the AusAID Code of Conduct Overseas through behaviour which lead to Mr Hatfield:
· not acting at all times to uphold the good reputation of Australia (Clause 2) …
· behaving in a way that adversely affected his ability to perform his duties and the ability of the mission to achieve its objectives, and thereby did bring the mission and Australia into disrepute (Clause 5.1), …
· through his behaviour, failing to act with due care and diligence in harassing Ms Kim, a client and work colleague (Clause 7.1), …
· his behaviour [affecting adversely] his ability to perform his duties and the ability of the mission to achieve its objectives and did bring the mission and Australian into disrepute (Clause 5.1), …
· through his behaviour, he failed to act with due care and diligence by harassing Ms Kim a client and work colleague (Clause 7.1).
35. On 14 July 2009, Mr Layt accepted the findings of the investigator, which had been supported by a legal opinion from a law firm. The findings were that, principally due to the sexual harassment of Ms Kim, Mr Hatfield had breached the Code of Conduct. However, Mr Layt recommended to the Deputy Director General of the Corporate Enabling Division at AusAID that although there had been a breach of the Code of Conduct, the only sanction should be that ‘a formal written reprimand be placed on Mr Hatfield’s file’.
36. Mr Hatfield’s employment by AusAID on the Nauru desk came to an end on 9 April 2009 and he ceased work with AusAID on 20 April 2009 after he received the first draft of the investigation report. Subsequently, he has had short-term employment with the Department of Innovation, Industry, Science and Research.
Medical evidence
37. Dr Maria Cox, Mr Hatfield’s general practitioner, provided a report dated 20 May 2009, and said he first consulted her on 9 February 2009 because he was depressed, had difficulty focusing and was sleeping poorly. He was seeing a work counsellor and took a week off work at that time. A depression rating scale administered on 9 February 2009 by Dr Cox showed significant levels of anxiety and depression, and Dr Cox prescribed an anti-depressant.
38. In a subsequent consultation on 5 March 2009, Dr Cox recorded Mr Hatfield’s condition as being exacerbated when he attended an interview for the Code of Conduct investigation on 26 February 2009. Mr Hatfield said at the hearing that he was not able to focus effectively on work after that time. That was confirmed by Dr Cox at a consultation on 19 March 2009, when she noted that the subsequent reading by Mr Hatfield of the Record of Interview with the investigator had further exacerbated his condition. Mr Hatfield had also noted that in the period February to June 2009 he sought the assistance of a workplace psychologist on more than one occasion. Accordingly, Dr Cox increased the dosage of Mr Hatfield’s anti-depressant.
39. At the consultation with Dr Cox on 6 April 2009, Mr Hatfield said he was feeling extremely anxious about the outcome of the investigation which he said had found ‘a minor breach’ of the APS Code of Conduct. Dr Cox, in her report to Comcare dated 20 May 2009, diagnosed major depressive episode which she said was ‘a direct result of the response of his employer to the incident in Nauru’. However, Mr Hatfield also informed the Tribunal that he ceased taking his anti-depressant medication in September 2009.
40. In a report to Comcare dated 19 June 2009 of an assessment done that day, Dr Inglis Synnott, consultant psychiatrist, diagnosed an adjustment disorder. In his report he said Mr Hatfield’s symptoms emerged in January 2009 and had continued. In his opinion, the symptoms were not permanent. In his view, the condition was related to Mr Hatfield’s employment, specifically the circumstances surrounding his removal from Nauru, the subsequent Code of Conduct investigation, the potential loss of employment, and the reputational damage. Dr Synnott considered that Mr Hatfield was capable of returning to work, although he considered it prudent to include a graduated return to work program.
Other evidence
Mr George Fraser
41. Mr George Fraser, then Australian Consul-General for Nauru, and Head of Mission for the Australian Government in Nauru, provided a written statement and gave evidence by telephone to the Tribunal. In his written statement, Mr Fraser listed the occasions towards the end of 2008 when, despite his warnings to Mr Hatfield in May 2008, repeated in July 2008, there were encounters between Ms Kim and Mr Hatfield. He acknowledged that Mr Hatfield did not always speak to Ms Kim on these occasions.
42. Mr Fraser said that in response to these complaints, Mr Hatfield had explained that as he did not know whether Ms Kim would be at particular functions, he was unable on occasion to avoid seeing her.
43. In response to a claim by Mr Hatfield that, in order for the decision to remove him from Nauru be reasonable he should have been offered a right of reply prior to his removal, Mr Fraser said he was following DFAT procedures in circumstances when removal of mission personnel is sought by a host government. However, in a subsequent email dated 12 June 2009, the Director of the Staffing Operation Section at DFAT denied such procedures existed. However, the Director did say that:
In principle should we receive a request from a host government to withdraw an employee we would aim to do so as quickly as possible. Depending on the reasons for the withdrawal we would seek to be as sympathetic as possible in our handling of the employee.
44. In an email to Mr Hatfield dated 9 April 2009, Mr Fraser confirmed that AusAID had not sought his views on whether there was a risk to the safety of Mr Hatfield or his family, but had his views been sought he would have denied there was any such risk.
Mr Christopher Layt
45. Mr Christopher Layt, Director of Human Resources Services at AusAID provided a statement dated 20 May 2010 that outlined the steps he had taken in having Mr Hatfield removed from Nauru. Mr Layt confirmed that, even if AusAID did not understand the reason for the Government of Nauru’s request to remove Mr Hatfield, or thought an allegation might be fraudulent, AusAID could have raised this with DFAT or the relevant Minister, but Mr Hatfield would still have been removed as requested. He noted that, although Mr Hatfield had denied the sexual harassment allegation, ‘AusAID could not reasonably rely on the denial of allegations as an accurate version of events’. He had also said that, in any event, AusAID had no reason to believe the allegations were made fraudulently.
46. In a supplementary statement dated 27 August 2010, Mr Layt detailed the timelines for the events in January 2009. As part of that history, he noted that when he telephoned Mr Hatfield on 7 January 2009, Mr Hatfield had asked whether he would be able to return to Nauru if he was found not to have breached the Code of Conduct. Mr Layt told him that this would depend on the Government of Nauru approving his return. He also said that once a request for removal had been received, AusAID had no discretion and had to comply with the request.
Consideration
47. At the outset, the Tribunal made it clear to Mr Hatfield that the focus of these proceedings was not to reconsider the findings of the investigation, nor was it in a position to go behind the investigator’s report as to what happened in Nauru prior to Mr Hatfield’s departure. The purpose of these proceedings was to assess whether Mr Hatfield was entitled to compensation for a condition he claimed was work-related. For that reason, much of the material referred to by Mr Hatfield in his reports in the Tribunal documents has not been considered.
48. It was common ground at the hearing that Mr Hatfield was an ‘employee’,[10] being employed on contract by AusAID; and that he suffered from an ‘ailment’,[11] namely, depression, whether that condition was described as an adjustment disorder, or a major depressive illness, single episode. Nothing turns on the diagnosis. In turn, that ailment was a ‘disease’,[12] which also means Mr Hatfield had suffered an ‘injury’.[13] Both parties also accepted that Mr Hatfield’s employment had contributed to his condition to a significant degree.[14]
[10] Act, ss 4(1), 5.
[11] Act, s 4(1) – definition of ‘ailment’.
[12] Act, s 5B.
[13] Act, s 5A.
[14] Act, s 5B(1).
49. It was also common ground that the date of injury was deemed to be 7 January 2009. That was the date on which Mr Hatfield was informed of Ms Kim’s formal complaint and was advised he was to be removed from Nauru. Mr Hatfield said these events made a dramatic change to his circumstances, including the loss of his posting to Nauru, with its promised extension for twelve months to February 2010.
50. As a consequence, he said he first experienced the symptoms which were an impairment and which incapacitated him for work – emotional distress, anxiety, difficulty to concentrate and focus, sleep disturbance, anger, impatience – and which were the indicators that he was suffering from his depressive condition. Dr Synnott reported Mr Hatfield as saying that he consulted an AusAID counsellor by telephone on 7 January 2009 and a psychologist several days later, and he was prescribed anti-depressant medication by Dr Cox on 9 February 2009.
51. The Tribunal is satisfied, on the evidence, and in light of the relevant provisions of the Act, that these concessions were properly made.
52. The principal contested issue is whether Mr Hatfield’s ‘injury’ was not compensable because it was ‘suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Mr Hatfield’s] employment’.[15]
[15] Act, s 5A(1).
53. Mr Hatfield identified as the administrative incidents which were causative of his condition:
· being asked to leave Nauru by the Government of Nauru;
·the investigation into the alleged breach of the Code of Conduct, including its findings;
·damage to his reputation;
·advice that it was unlikely he would be returned to the job in Nauru or be offered other overseas postings with AusAID; and
·a report by his temporary replacement in Nauru.
54. What is an ‘administrative action’ is defined in section 5A(2) of the Act. Although it is not defined exhaustively, ‘administrative action’ is not at large, but refers to administrative actions which involve any assessment of performance or corrective action of an employee by a manager, as well as the failure to obtain a promotion, reclassification, transfer or benefit, any comparable administrative actions, and anything reasonable done in connection with any such activities.[16]
[16] Re Radulovic and Comcare [2010] AATA 777, para 74.
55. Accordingly, the administrative actions involving Mr Hatfield’s removal from Nauru, the investigation into breaches of the Code of Conduct investigation and the findings by the investigator, were all administrative actions involving an assessment of his performance while in Nauru, or were corrective action taken by his employer upon his return to Australia. The advice received by Mr Hatfield that he was unlikely to return to Nauru despite an earlier indication by AusAID that Mr Hatfield’s contract would be extended until February 2010, and by implication other possible overseas postings with AusAID, is a ‘failure to retain a benefit’.[17] These, therefore, are all ‘administrative actions’.
[17] Act, s 5A(2)(f).
56. The complaint of reputational damage is a consequence of such actions, but is not ‘anything reasonable done in connection with’ any of such actions. No positive administrative action was taken by Mr Hatfield’s employer AusAID to affect his reputation. That outcome, if it occurred, would have been an inevitable result of the administrative actions. The loss of reputation is not an ‘administrative action’ and will not further be considered. Similarly, the report of his temporary replacement in Nauru, which Mr Hatfield said exacerbated his condition because it contained critical comments about his ‘general performance’, was not action taken by management and hence was not an ‘administrative action’.
Whether an ‘administrative action’ is ‘reasonable’
57. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful.[18] In addition, for ‘administrative action’ to be reasonable, it must be established that there was nothing ‘untoward’ about the actions involved.[19] The actions must also not be ‘irrational, absurd or ridiculous’.[20]
[18] Comcare v Chenhall (1992) 37 FCR 75.
[19] Re Gilbert and Comcare [2009] AATA 224, para 33 (DP Hack).
[20] Repatriation Commission v Webb (1987) 13 ALD 421, 421 (Beaumont J).
58. The question of whether ‘administrative action’ is taken ‘in a reasonable manner’ is a question of fact and must be considered on an objective basis. Matters that should be taken into account in that consideration include the circumstances leading to and flowing from any relevant administrative action, the particular circumstances of the individual known to the employer or which could have been discovered by simple inquiry, and any relevant corporate policy framework within which the actions took place.[21] These principles will be applied to the circumstances involved in this case.
Removal from Nauru
[21] Re Georges and Telstra Corporation Ltd [2009] 731, para 33; Re Reubinson and Comcare [2010] AATA 676; Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.59. Mr Fraser was notified informally by the Foreign Minister of Nauru on the afternoon of 6 January 2009 that Ms Kim had made a complaint about Mr Hatfield’s conduct and that as a consequence the Government of Nauru would formally be requesting that Mr Hatfield be removed. Mr Fraser notified both DFAT and AusAID of this communication the same evening.
60. The formal request for Mr Hatfield’s removal was received by Mr Fraser from the Nauru Foreign Minister on the morning of 7 January 2009. The Memorandum also requested that Mr Hatfield’s conduct be investigated once he returned to Australia.
61. Later that morning, Mr Fraser informed Mr Hatfield of the request and that AusAID would be in contact with him about arrangements for his departure. This information was followed by a call to Mr Hatfield from AusAID when he was advised that an APS Code of Conduct inquiry would be undertaken on his return, but that he would continue to be employed by AusAID for the duration of the inquiry. He was also advised that it was expected he would take leave for a period before resuming work on the Nauru desk in Canberra. Mr Hatfield and his family departed Nauru on the morning of 9 January 2009.
62. Mr Fraser’s decision to act on the request of the Government of Nauru was made in accordance with Article 23 of the Vienna Convention, to which Australia is a ratifying party.
63. To comply with the Convention is, therefore, not unlawful, since it is an instrument which is given legal status in domestic law.[22]
[22] For a useful summary of the status of international law in Australia domestic institutions see Kirby J in Re Kavanagh’s Application (2003) 204 ALR 1.
64. Although DFAT confirmed there were no formal procedures for requests for removal, the DFAT representative did indicate that should such a request be made, ‘in principle’ DFAT would aim to remove the person as quickly as possible while being conscious of the need to be sympathetic to the person involved. That response recognises that the practical consequence of a consular officer being declared persona non gratis is that unless the officer is removed by the sending government, the person’s right to remain in the country can be denied by the host government. That means, in effect, that the sending government has no choice in such a matter. In those circumstances, Mr Fraser’s decision to set in motion processes for Mr Hatfield’s prompt removal and for an investigation into his conduct was not untoward, nor was it irrational, absurd or ridiculous. The action was, accordingly, reasonable.
65. Mr Hatfield suggested that he was not given an opportunity to present his side of the events that Ms Kim complained about prior to leaving Nauru, and that as a consequence he was denied natural justice. As is indicated by DFAT’s ‘in principle’ procedures and by the terms of the Vienna Convention outlining the powers which can be exercised by a ‘receiving government’, the ‘sending government’, Australia, had little latitude about whether or not to take summary action if the removal of an official was requested. Actions to be taken by the ‘sending government’ in such circumstances are also curtailed by the fact that the ‘receiving government’ is not required to provide reasons for their request. In those circumstances unless there is clear evidence of fraud or some feature of the request which warrants it being objected to at the highest political level, the ‘sending government’ can do little but comply.
66. Given that Mr Hatfield had been informed on 7 January 2009 that the circumstances surrounding the complaint would be investigated on his return to Australia, and he would be given the opportunity at that time to respond to the allegations, there was no breach of natural justice. The action in removing him swiftly was, accordingly, not unlawful, untoward, irrational, absurd or ridiculous. There is no breach of natural justice when urgent action has to be taken[23] and no hearing is provided in advance, particularly when the person knows at the time that an opportunity for a hearing is to be provided later.
[23] Ridge v Baldwin [1964] AC 40; South Australia v Slipper (2004) 136 FCR 259.
67. Clause 5 of the AusAID Procedures for Determining Breaches of Code of Conduct requires only that they be carried out with ‘as much expedition as a proper consideration of the matter allows’. Similarly, clause 4(1)(b) of the Procedures only require that the person ‘be given a reasonable opportunity to make a statement, in writing, in relation to the suspected breach within 7 days or any longer period as is allowed’. Neither of these policies has been breached.
68. The circumstances of urgency to remove Mr Hatfield were not that his or his family’s safety was an issue, but that the Australian government was required to comply with the Vienna Convention which authorised the Nauru Government to revoke his permission to say at any time following receipt of the Memorandum. Removing Mr Hatfield reflected this reality and also minimised embarrassment to Ms Kim and the Hatfield family. Therefore, the failure to undertake an investigation prior to Mr Hatfield’s departure was not unreasonable administrative action. Nor did Mr Hatfield suffer any injustice by not being able to be heard prior to his departure, given there was no choice about his removal and he was to be heard on his return to Australia.[24]
[24] Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627, para 35.
69. That only leaves the issue of whether the steps for effecting that removal were taken in a reasonable manner. The Tribunal notes that Mr Fraser advised Mr Hatfield of the request for his removal and showed him a copy of the complaint before 9.30am on the morning of 7 January 2009. That is, he was told prior to receipt of the formal complaint.
70. It can be assumed that this early notification was in order to circumvent Mr Hatfield being told of his removal by others at the post privy to the information, rather than by the Head of Mission. In small expatriate communities, assuring confidentiality of information can at times be difficult. For Mr Fraser to let Mr Hatfield know of the complaint as quickly as possible avoided that possibility.
71. On the evidence, it appears that the booking of flights to Australia for Mr Hatfield and his family and appropriate assistance with packing were provided. Mr Hatfield made no complaints about the removal process, except to note that because of his state of mind, the task was largely left to his spouse. The time to effect his removal, less than two days, appeared short, but again no complaints were made about this by Mr Hatfield at the time. In circumstances where information would quickly be spread about his removal, assisting him to make a swift departure minimised any embarrassment for him or his family.
72. All these actions, objectively, took into account the circumstances which caused the need for the investigation, the relevant policy framework, including the Vienna Convention, the APS Code of Conduct, the AusAID Code of Procedures for Overseas Service and the principles applied by DFAT in such circumstances. The actions were, therefore, conducted in a reasonable manner.
73. Mr Hatfield questioned Mr Fraser at the hearing as to why he had not been informed about Ms Kim’s distress in April 2008, and again in December 2008. The implication was that if he had been told earlier, Ms Kim might never have lodged her formal complaints in May 2008 and January 2009 and Mr Hatfield might not have been asked to leave Nauru. In Mr Hatfield's opinion, this management failure by Mr Fraser contributed significantly to the events which caused Mr Hatfield’s condition.
74. Mr Fraser’s response was that, until he had had direct evidence from Ms Kim about these matters, he could not establish the facts, nor in fairness could he present Ms Kim’s concerns to Mr Hatfield. Mr Fraser’s principal informant had been his wife, and quite properly he had not acted on her information without corroboration. When Ms Kim did raise the matter with Mr Fraser in May 2008, and again in July 2008, he did act promptly.
75. However, since the undertaking by Mr Hatfield in April 2008 and the agreement entered into by Mr Hatfield in May 2008 did not prevent Mr Fraser having to take further action in July, to suggest that knowledge of Ms Kim’s concerns in April would have prevented any need for formal action by Mr Fraser in May is not substantiated. At the same time, to his credit, Mr Hatfield appeared to have managed the situation better after July. Indeed, Ms Kim was recorded as saying that the matters were ‘under control’ even in early December 2008.
76. The Tribunal also notes that the investigator made no findings of misconduct arising out of the occasions of contact with Ms Kim and Mr Hatfield in January 2009, which Ms Kim complained about. Indeed, there is a suggestion in the report that Ms Kim may have been unduly sensitive at that time. In addition, Mr Hatfield attributes some of the reason for Ms Kim’s complaints in January 2009 to political motivation and a pressure on Ms Kim to make the formal complaint. The Tribunal makes no findings on these issues. However, they do suggest in sum that a simple advance warning to Mr Hatfield by Mr Fraser earlier in December might not have avoided the ultimate formal complaint being made.
77. So although management inaction can be causal of distress, in the circumstances outlined, the Tribunal considers it is hypothetical to suggest that had Mr Hatfield been told earlier of Ms Kim’s concerns she would not ultimately have complained. In those circumstances, the Tribunal is satisfied that these contentions need not be considered further.
Investigation into the alleged breach of the APS Code of Conduct and the AusAID Code of Conduct for Overseas Service
78. AusAID in its conversation with Mr Hatfield on 7 January 2009 informed him that an investigation into the complaint would be undertaken on his return to Australia. In the circumstances of the request from the Government of Nauru that there be an investigation into the complaint, the Australian Government, through AusAID, had little discretion about conducting an investigation. Although Mr Layt confirmed that if AusAID had not understood the reason for the request for an investigation or considered that the request was made fraudulently, it could have raised this with DFAT or the Minister for Foreign Affairs, since neither of those circumstances applied, and since undertaking the investigation could avoid damaging the bilateral relationship between the governments of Australia and Nauru, compliance with the request was not unreasonable.
79. That means it is the manner of conducting the investigation which is the prime focus for the Tribunal. Mr Hatfield was told on 7 January 2009 that his conduct would be investigated for any breach of the APS Code of Conduct. The external consultant for the investigation was confirmed on 8 January 2009 and Mr Hatfield was so informed on 12 January 2009. On 13 January 2009, he was advised of the processes involved in the investigation. These actions were taken in an appropriately prompt manner, choice of an external investigator provided appropriate independence for the investigation process, and the advice about the procedure avoided Mr Hatfield being disadvantaged by any lack of understanding of what was to occur.
80. Mr Hatfield was also advised on 12 January that he would continue to be employed until the investigation process was complete, thus assuring him of a continuing position and that no pre-judgment had been made about the outcome. Since AusAID had the option of terminating his contract forthwith on receipt of the request for his removal but chose not to do so, that step was a suitably sympathetic approach to the handling of the investigation process.
81. In terms of the procedure for the investigation, Mr Hatfield was informed on 13 January that he would be asked to nominate people for the investigator to interview, thus giving him an opportunity to suggest persons who could give an objective account or indeed a supportive account of the events in Nauru. He was also reminded of the support services for employees which were available within AusAID. On 28 January 2009, the investigator also wrote to Mr Hatfield formally advising him of the process, seeking a submission from him, and affirming that he could nominate persons to be interviewed by the investigator.
82. Mr Hatfield provided a submission on 6 February 2009 and an amended submission on 24 February 2009 and was interviewed on 26 February 2009. He was advised on 23 March 2009 that the investigator’s report was scheduled to be received on 27 March. In fact it was received on 31 March 2009. Mr Hatfield provided comments on this draft on 8 April 2009. The draft final report was given to AusAID on 14 April 2009, although Mr Hatfield was given a further opportunity, which he accepted, to make another submission in May 2009. The final step in the process was the recommendation by Mr Layt to the Deputy Director General, Corporate Enabling Division at AusAID, that despite Mr Hatfield’s conduct being in breach of certain clauses of the Code of Conduct, the sanction should only be a formal written reprimand on his personnel file.
83. The Tribunal finds that not only was the holding of the investigation a reasonable step to take, but overall the manner of its conduct was also reasonable. Mr Hatfield was given the opportunity to nominate those to be interviewed, was given the opportunity to provide not one but four submissions to the investigator, two of those prior to the draft report and two after he had seen drafts, and he was interviewed in person. The steps taken gave him ample opportunity to put his point of view.
84. Legal advice was sought by AusAID prior to acceptance of the report’s recommendation. The sanction, while acknowledging that there had been a breach of some clauses of the Code of Conduct, was also minimalist in nature. Moreover, there was no presumption of guilt by AusAID in removing Mr Hatfield and conducting the investigation in Australia rather than on Nauru, not least because of the threat that Mr Hatfield would be made persona non gratis by the Nauru Government had he remained there. To remove Mr Hatfield was the only option open to the Australian government in these circumstances.
85. Undoubtedly, Mr Hatfield was apprehensive about the process and its outcome and this may have exacerbated his condition. To an extent, that was a normal reaction and hence inevitable. At the same time, he was offered opportunities to nominate those who might corroborate his views, and adequate opportunities to provide his own views. To that extent, the process appears to have been eminently appropriate and to have been conducted in a fair and reasonable way.
86. Mr Hatfield complained that the investigator had failed to interview two witnesses he nominated and to obtain ‘DFAT e-mails that AusAID considered to be harassment’. Mr Hatfield’s assertions to this effect are the only evidence of these matters and without more the Tribunal can not be satisfied of these omissions.
87. Mr Hatfield also asserted that AusAID had made ‘its final decision on breaches of the Code of Conduct different from those identified in the investigation, without providing me any opportunity to respond to the changed matters it found to be breach’. Again, the Tribunal only has Mr Hatfield’s word for this complaint. Mr Hatfield was given an opportunity in May 2009 to make a further submission, but whether this version of the report contained these changes is not clear. Finally, Mr Hatfield asserted that he was not provided with the full report, was not provided with any explanation for its decision and only after two months provided an outline of the report.
88. There is a report of the investigation in the Tribunal documents of which Mr Hatfield has a copy. Mr Hatfield also received direct responses from Mr Layt in relation to specific questions he had about the report. In these circumstances, and given the several opportunities provided to Mr Hatfield to make submissions to the investigator, and the publication of the report, the Tribunal finds that the actions taken in connection with the investigation were undertaken in a reasonable manner.
Future postings
89. The advice to Mr Hatfield that he was unlikely to be returned to Nauru, and the impact on his future postings, can both be classified as a ‘failure to retain a benefit’.[25] As a contractor, he had no right to continue to be employed. However, it was clear that until the events in early 2009, AusAID had been happy with his performance. That was indicated by the publication within AusAID of the proposed extension of his posting on Nauru for a further twelve months to February 2010.
[25] Act, s 5A(2)(f).
90. His summary removal from Nauru was to change that arrangement. That was a disappointment for Mr Hatfield, since he had enjoyed his overseas posting with AusAID and he was concerned that an adverse finding would mean no further postings. In his conversation with Mr Layt on 7 January 2009, Mr Hatfield had asked whether, should he be cleared in the investigation, he would be able to return to Nauru. Mr Layt’s response was that this would depend on the Government of Nauru approving his return. That was the reality. Further, Mr Fraser emailed Mr Hatfield on 10 February 2009 to report that he had seen the Nauru Foreign Minister and asked him his view about Mr Hatfield’s return, which ‘wasn’t positive’, although it was only the Foreign Minister's personal view. This supports the earlier comment by Mr Layt.
91. The responses indicate that any ‘failure to retain’ the benefit of his position on Nauru was not solely a matter for AusAID or the Australian Government. So even if Mr Hatfield had been cleared of any misconduct, it would not solely have been Australian management action which would have denied him the benefit had a request for a further posting in Nauru been denied. In these hypothetical circumstances, the potential administrative action would not have been covered by the exclusionary provisions in section 5A(1), (2).
92. The same is not true of his failure to retain the benefit of other postings with AusAID. The only evidence on this issue was Mr Hatfield’s comment in his ‘Request for Reconsideration of Comcare decision’ that Mr Layt had ‘indicated that if I was successful in obtaining a permanent position in AusAID for which I had recently been interviewed, that I would be able to apply without prejudice for other postings’ and an email copied to Mr Hatfield from the Manager, Ethics & Welfare Unit, AusAID which stated that Mr Hatfield’s contract finished on 20 April 2009 ‘and will not be extended’.
93. That response by Mr Layt may well have been accurate. However, two circumstances eventuated which impacted on that possibility: Mr Hatfield was not entirely cleared by the investigation; and he did not apparently obtain the permanent position for which he had applied. The inferences from the findings of a breach of the APS Code of Conduct, the formal reprimand on his file, and the ending of his contract with AusAID on 20 April 2009, were that despite his long (twenty three years) of service with AusAID, Mr Hatfield was not likely to obtain a further position within the agency, including the possibility of a posting to places other than Nauru. In these circumstances, the failure to retain the benefit of potential future postings was not due to action by management, but rather by Mr Hatfield. Accordingly there is no reasonable employment action by AusAID involved in this denial of a benefit.
94. In conclusion, the Tribunal finds that since the nominated administrative actions were reasonable and were taken in a reasonable manner, although these actions undoubtedly contributed to Mr Hatfield’s distress, the result, according to the compensation legislation, is that Mr Hatfield’s condition is not an ‘injury’ and hence is not compensable. The decision under review is affirmed.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: ..................[sgd]...............................
AssociateDate of Hearing 1 September 2010
Date of Decision 1 November 2010
Solicitor for the Applicant Self represented
Counsel for the Respondent Jane Godtschalke
Solicitor for the Respondent Sparke Helmore
[21] Id, 44-5.
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