Hill and Australian Postal Corporation - [2011] AATA 186

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 186
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0908

GENERAL ADMINISTRATIVE DIVISION )

Re NORMAN HILL

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date22 March 2011
PlaceBrisbane (heard in Townsville and Brisbane)

Decision
The decision under review is affirmed.

.................[Sgd].....................
Deputy President

CATCHWORDS
WORKERS’ COMPENSATION – Entitlement to compensation – Definition of ‘injury’ – Whether reasonable administrative action taken in a reasonable manner - Decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
REASONS FOR DECISION

22 March 2011 Deputy President P E Hack SC

Introduction

The applicant, Mr Norman Douglas Hill[1], is a “postie”. He has been an employee of the respondent, Australian Postal Corporation (Australia Post), for over 20 years. Mr Hill suffers from a psychiatric condition described as “major depressive disorder”. Australia Post accepts that he suffers from the condition and that his employment with Australia Post contributed, to a significant degree, to the onset of the condition.
[1] Known generally as “Doug”.
But Australia Post decided, and contends in these proceedings, that it is not liable to pay compensation to Mr Hill for the condition because it was the result of reasonable administrative action, taken in a reasonable manner, in respect of Mr Hill’s employment. Thus, it is said, Mr Hill’s admitted condition does not answer the description of “injury” in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
Mr Hill seeks a review of Australia Post’s decision.
The legislative framework
The provisions of the SRC Act need only be briefly noticed. By a combination of ss 14 and 108A of the SRC Act, Australia Post, as a licensee, is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. The term “injury” is defined by s 5A(1) of the SRC Act in this way:
“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.”
Content is given to the expression “reasonable administrative action” by s 5A(2) of the SRC Act. It provides:
“(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.”
“Disease” is defined in s 5B of the SRC Act in these terms:
“(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.”

Factual background

I start by setting out the factual background noting, where necessary, any matters of controversy.
Prior to his employment with Australia Post Mr Hill served in the Australian Regular Army for 24 years, reaching the rank of Warrant Officer. For all but the first six months of his employment with Australia Post Mr Hill has worked at the Thuringowa Delivery Centre. His supervisor at all material times, and the Manager of that Centre since July 2008, was Mr Maurice Platt. Mr Platt’s duties include supervision of the activities of “postal delivery officers” such as Mr Hill. Under Mr Platt were an operations manager and three team leaders. Ms Camille Acford was one of those supervisors.
The activities of postal delivery officers are divided into “indoor” and “outdoor” activities. Indoor activities include the sorting of mail prior to the delivery round including the identification of mail that requires re-direction and performing motorcycle checks prior to the commencement of the round. Outdoor activities include the actual delivery of mail and associated tasks such as refuelling the motorcycle and collecting further mail for delivery from collection boxes on the round. The area serviced by the Thuringowa Delivery Centre is divided into rounds. Postal delivery officers at Thuringowa work a five day, Monday to Friday, week. They ordinarily start work at 5.30 am on Mondays and 5.45 am on the other days in the week. During the night “night sorters” sort the incoming mail into the various rounds so that the mail for a particular round is available in the morning for the postal delivery officers to then further sort into the order in which delivery is undertaken. That is done manually, by placing the mail into a “frame”, a large metal structure with three or four stems coming off a central pillar in a semi-circular direction with horizontal trays coming off the stems. Each tray is labelled with the name of a street within that round. Once sorted according to the delivery schedule the mail is bundled and separated into, generally, three parts. The first third is taken by the postal delivery officer on the motor bike used to deliver the mail and the balance is taken by others and left in pre-determined locations for the postal delivery officer to collect and deliver.
Initially Mr Hill and Mr Platt got on well. The matters in issue in these proceedings first started to emerge in about May 2009 when, according to Mr Platt, he noticed that Mr Hill was taking longer to complete his round than was expected. Mr Platt had a number of discussions with Mr Hill to ascertain whether there was any reason for this. He says that Mr Hill did not provide him with any reasons. Mr Platt said that these discussions were informal and did not amount to formal counselling such as would engage the Australia Post counselling and discipline policies. There is no note of these discussions however I do not understand the fact or the content of these discussions to be in issue.
Mr Platt undertook, and documented[2], an observation of Mr Hill during the course of his rounds on 17 June 2009. By and large Mr Hill complied with safety requirements however he took 90 minutes longer to complete the round than the 3 hours, 40 minutes expected. Mr Platt took this issue up with Mr Hill the following day. Mr Platt’s note of the discussion[3] indicates that Mr Hill proffered no reason for taking longer than expected. Mr Platt raised a concern with unwarranted overtime and told Mr Hill that his performance needed to be improved. Mr Platt’s note of the discussion indicates that it concluded with him saying to Mr Hill:
“If you are not willing to manage yourself Doug I shall make arrangements to manage your performance. I will commence following you around your delivery route.”
[2] Exhibit 1, page 58.
[3] Exhibit 1, page 60.
The following day, 19 June 2009, Mr Platt again undertook outdoor observations of Mr Hill and noted that he appeared to leave his mail unattended and not secured as it should have been and that he left his delivery round to undertake personal business in a shopping centre for approximately 10 minutes. Each matter constituted what Mr Platt regarded as a breach of Australia Post’s Code of Ethics. Mr Platt initiated the formal disciplinary processes by delivering a letter to Mr Hill on 22 June 2009 notifying him of the “alleged unsatisfactory behaviour” and requiring him to attend a formal counselling interview on 24 June 2009.
At that interview Mr Hill explained that he had been feeling unwell and had needed to go to the toilet at the shopping centre when he was delivering mail there and had taken the opportunity to make a personal purchase. The record of the interview, compiled by Mr Platt and countersigned by Mr Hill, notes that Mr Hill was advised that further observation of him would be conducted on a regular basis and that, if necessary, a “performance review program” (PRP) would be undertaken “to identify shortfalls” and that training would be provided to improve performance. Periodic reviews were scheduled to be undertaken.
After that interview there was a further, informal, conversation between Mr Platt and Mr Hill. The timing is not clear and its terms are disputed. Mr Hill says that Mr Platt said words to the effect,
“If you can’t keep up to them others then you should consider seeking alternative employment.”
Mr Platt said that the conversation was much less threatening and that his comment was to the effect that there were other employment opportunities in Australia Post if Mr Hill wanted to consider them.
The next dealing between Mr Platt and Mr Hill took place in August 2009. Mr Platt met up with Mr Hill in the bike shed. There is some controversy about the conversation. According to Mr Hill, Mr Platt, using an aggressive tone, said to him words to the effect,
“I have plenty on you dating back to 1993. I am going to supervise you like nothing before.”
It is the fact, apparently, that there had been some issue concerning Mr Hill’s performance in 1993. Mr Platt was aware of it, having reviewed Mr Hill’s employment records. Mr Platt accepts that he raised the fact of the earlier matter in the course of the conversation that day but says that he did it for the purpose of trying to get an understanding of Mr Hill’s poor performance. He denies speaking aggressively to Mr Hill on that or any other occasion.
From August 2009 onwards Mr Platt implemented an arrangement whereby part of Mr Hill’s mail was sorted for him by others, enabling him to start his outdoor work earlier in order to complete it within the expected time frame. Because postal delivery officers ordinarily take their meal break after the completion of indoor work and before going out on rounds this arrangement had the consequence that Mr Hill took his meal break prior to his colleagues with the result, as he put it, that he was “socially excluded” or “isolated” from those colleagues.
Around this time the mail required to be delivered by Mr Hill was counted, at least on a regular basis. Mr Hill says that he was informed that it was being counted daily; Mr Platt says that it was not done daily but was not clear how frequently it was done. And, around this time, Mr Platt commenced the practice of observing Mr Hill’s indoor performance. There is controversy about how frequent and intrusive that observation was. Some idea of the nature of the indoor observation may be gained from a note made by Mr Platt of his discussions with Mr Hill on 20 August 2009, immediately after completion of the review interview. That suggests that there was observation undertaken on 17 and 20 August 2009 and that on 17 August 2009 it had lasted for three minutes. There is another note of 9 October 2009 which suggests that Mr Platt observed Mr Hill on two occasions that day for about two minutes on each occasion.
The next event of moment occurred on 5 October 2009 when Mr Platt undertook an outdoor safety observation of Mr Hill. On 7 October 2009 Mr Platt discussed his observations of both indoor and outdoor performance with Mr Hill within the framework of a PRP assessment in the presence of Mr Wayne Breen, a colleague of Mr Hill’s who was there as an observer to give him support. Mr Platt was generally content with Mr Hill’s safety but regarded the indoor and outdoor performance as below standard. Mr Platt’s note[4] refers to “more assertive observations” being conducted “to provide constructive feedback to performance”. Mr Platt’s note[5] of the conversation, under the heading “Follow up Review” records,
“Mr Hill was provided with, that further training/assistance will be provided if identified during observations however if it is a performance related issue and behaviour/performance doesn’t change to meet minimum standard after all avenuues [sic] to change have been exhausted then discipline action can/will be taken to rectify the issue.”
[4] Exhibit 1, page 79.
[5] Ibid
Mr Platt undertook outdoor observations of Mr Hill on 8 October 2009 and indoor observation on 9 October 2009 and discussed his observations with Mr Hill after the completion of indoor work on 9 October 2009. According to Mr Platt’s note[6] he informed Mr Hill that he was generally happy with his performance and that if Mr Hill continued to perform as he had recently the observations of him would cease. Later that day, whilst Mr Hill was undertaking his outdoor rounds, Ms Acford commenced looking for Mr Hill to undertake observations. According to Mr Platt, she was unable to locate him. Mr Platt himself spent time searching for Mr Hill before eventually locating him. According to Mr Platt, he and Ms Acford spent an hour between them searching for Mr Hill in circumstances where Mr Hill ought to have been able to be located. There was a heated meeting between Mr Platt and Mr Hill when Mr Platt eventually located him. Mr Hill says that Mr Platt screamed at him at a time when members of the public were present. Mr Platt denies that he screamed but accepts that his voice was raised when he asked Mr Hill where he had been. Mr Hill’s explanation for being unable to be located was that he had undertaken the round in a different manner in order to deliver the unaddressed mail first.
[6] Exhibit 1, page 83.
Mr Platt again undertook outdoor observations of Mr Hill on 15 October 2009 and discussed these observations with him at a meeting on 16 October 2009 in the presence of Ms Acford and Mr Breen. Mr Platt prepared a detailed note of that conversation[7]. It demonstrates that Mr Platt was pleased with both indoor and outdoor performance; however, he was critical of the timing of Mr Hill’s toilet break which he said was taken at a point in the round that required him to travel the longest distance. At one point in the interview Mr Hill complained that “all I get is negative response” from Mr Platt. When asked if there were any other issues he wanted to discuss he raised a matter concerning his shoes (not the subject of any complaint in the proceedings before me) and that he had been prevented from attending a social function for another staff member.
[7] Exhibit 1, pages 85-88.
Mr Hill has not been back at work since 16 October 2009.
Mr Hill lodged a claim for compensation for “work related stress/bullying” on 21 October 2009. The claim was rejected in a decision made on 2 December 2009. That decision was affirmed on re-consideration on 24 February 2010 and proceedings commenced in the Tribunal shortly thereafter.
The witnesses
Mr Hill and Mr Platt are the critical witnesses; however, I heard evidence as well from three other witnesses who worked in the Thuringowa Delivery Centre – Mr Troy Eldridge, Mr Darren Smith and Mr Breen.
Mr Eldridge, Mr Smith and Mr Breen gave evidence of their knowledge of two of Australia Post’s safety policies, “stop, ride and ride” and the “banding” of mail, and Mr Hill’s adherence to those policies. I found that evidence to be unhelpful. Its relevance to the proceedings was never adequately explained. Mr Eldridge also gave evidence that Mr Hill’s mail was being counted and pre-sorted. Neither matter was in issue. He referred to his observations of Mr Platt observing Mr Hill at the sorting frame. Mr Platt’s demeanour and body language, he said, were “intimidating” towards Mr Hill. I found his explanation and demonstration of this “intimidation” of no assistance all the more so given that Mr Hill did not complain of being intimidated in this way. The complaint made in the particulars provided was that these observations “caused considerable embarrassment and humiliation”.
Mr Smith gave similar evidence of this “intimidating” conduct but again I found it unhelpful. Mr Smith gave evidence of hearing Mr Platt speaking to Mr Hill in an “inappropriate” manner. Mr Hill made no complaint of being spoken to in an inappropriate manner in circumstances where Mr Smith might have overheard beyond suggesting that Mr Platt spoke to him “abruptly”. Both Mr Eldridge and Mr Smith were, if I may say so, obviously partial.
Mr Breen was an experienced mail delivery officer who had, as well, eight years management experience in various delivery centres. For personal reasons he returned to the ranks at Thuringowa from 2001. He also spoke of the “intimidating” observation of Mr Hill by Mr Platt; however, he had seen Mr Platt observe other employees in a similar manner. Mr Breen was an observer at the two October 2009 meetings. He spoke of Mr Platt’s tone of voice at the meetings as being “not loud but firm”. He was aware of the observations of Mr Hill being undertaken and that, as a consequence of the re-arrangement of Mr Hill’s work load, he was taking lunch prior to his colleagues.
Mr Breen said of what he observed as Mr Hill’s treatment,
“In my 20 years at Australia Post I have never witnessed another employee treated in this manner. For approximately 8 of those years I was in supervisory positions in 5 delivery centres in which I was exposed to and used tools management has to ‘assist’ employees to correct behaviour that needs correcting. None of these techniques included segregating an employee from the group for extended periods, micro-managing them on a daily basis or appearing without notice on the delivery run.”[8]
Mr Breen was, as well, critical of the fact that a PRP on Mr Hill was not undertaken much earlier. I have no reason to doubt that Mr Breen holds these views however it seems to me that they are of limited assistance. As he acknowledged, he had been out of management for many years. Moreover, he was not privy to all the information available to Mr Platt. And, ultimately, the question posed relates to the reasonableness of the actions not whether they had been used by Australia Post management in other settings.
[8] Exhibit 1, page 127.
The critical witnesses are, of course, Mr Hill and Mr Platt. There are not many factual disputes between them. In reality it seems that the only area of disputed fact relates to Mr Platt’s tone of voice on various occasions when Mr Platt spoke to Mr Hill. Thus, for example, Mr Hill says that Mr Platt spoke to him in a “menacing” tone on 18 June 2009[9], that Mr Platt’s tone of voice was “always abrasive”[10], that his tone was ”threatening” in another conversation[11] and that on 9 October 2009 Mr Platt “screamed” at him in public[12]. I do not doubt that Mr Platt spoke in a firm, even stern, tone on various occasions; however, I do not accept Mr Hill’s evidence on these matters. Mr Hill said that Mr Platt was “out to get me”[13] and I do not doubt that he genuinely believes that to be the case. However I think that view has coloured his perception of events.
[9] Transcript page 38, line 27.
[10] Transcript page 38, line 13.
[11] Transcript page 45, line 33.
[12] Exhibit 2, paragraph 14.
[13] Transcript page 39, line 6.

The point is illustrated by Mr Hill’s evidence of being prevented from attending a social event to farewell an employee. It was raised by him at the interview on 16 October 2009 in terms that complained that he “wasn’t allowed to go”. When asked by Mr Platt who had stopped him from attending he suggested that Ms Acford had done so. Ms Acford, who was present at this interview, denied that she had done so and Mr Hill did not take the matter further. The matter was raised in Mr Hill’s particulars as an allegation that Mr Platt had “prevented him from attending another function for no apparent reason”[14] and in his evidence in chief. Yet when pressed in cross-examination, Mr Hill accepted that, in reality, his complaint was that he was unable to attend. Curiously, Mr Hill, when taken to Mr Platt’s notes of that meeting, denied that he had said, in that meeting, that he had not been allowed to go.
[14] Exhibit 3, paragraph 11.
I am, however, generally satisfied that I may rely on the evidence of Mr Platt. I do not doubt that he was somewhat dogmatic and single minded in his dealings with Mr Hill; however, I am satisfied that he did not speak to Mr Hill in an inappropriate tone.
Reasonable administrative action
It was accepted by Mr King-Scott, counsel for Mr Hill, that the actions of Mr Platt, of which complaint is made, amounted to “administrative action”; the issue is whether those actions were reasonable and were taken in a reasonable manner. Prior to the hearing Mr Hill identified, in a document described as “Applicant’s Particulars”[15], the facts and circumstances relied upon by him to allege that the administrative action was unreasonable and/or that it was undertaken in an unreasonable manner. I will consider the questions raised by reference to that document.
[15] Exhibit 3.
The first complaint arises from Mr Platt’s informal discussions with Mr Hill in May 2009. Some criticism was made of Mr Platt failing to make a diary note of these conversations as Australia Post’s discipline policy might otherwise require. That may be right but it does not affect the reasonableness of the discussions and, given that there appears to be no dispute regarding the content of the discussions, seems not to matter. It is accepted that Mr Platt enquired as to whether there was any particular reason for Mr Hill taking longer than expected to do his rounds and whether any training or assistance could be provided. Mr Hill could not supply any reason and did not suggest any training or assistance.
It seems to me to be necessary to bear in mind that Mr Platt was the manager of a mail centre that recorded the highest usage of overtime amongst regional centres in the month of April 2009 and that Mr Hill had the highest overtime figures of all employees at that centre for that month. Such matters are the proper, and reasonable, concern of persons in the position of Mr Platt. Mr Platt’s discussions with Mr Hill in May 2009 were directed to ascertaining whether there was any reason why Mr Hill’s overtime was as high as it was. I accept, as Mr Platt says, that Mr Hill did not provide any reason. In those circumstances it was, in my view, perfectly reasonable for Mr Platt to investigate the matter further.
This he did by undertaking an outdoor observation of Mr Hill on 17 June 2009. In the circumstances, I consider it reasonable to do so and I do not understand Mr Hill to contend to the contrary. Whilst the observation did not, of itself, reveal anything of particular relevance it was the case that Mr Hill took considerably longer to complete the round than was expected. Mr Platt took this up with Mr Hill the following day. I regard that as an entirely reasonable response by a manager in Mr Platt’s position. Mr Hill could proffer no reason beyond the suggestion that he was abiding by Australia Post’s delivery policies. Mr Platt was thus left in the position where Mr Hill was taking longer than was expected to complete his round, there was no apparent reason for that based on Mr Platt’s observations of him delivering mail and Mr Hill did not suggest any reason. In these circumstances it was, in my view, reasonable for Mr Platt to conclude that Mr Hill was performing below expectations and reasonable, as well, to inform Mr Hill that his performance would be monitored by further observation.
Mr Hill’s submissions accept that it was not unreasonable to question why he was taking longer than his colleagues to complete his round but he submits that it was the manner that Mr Platt went about it that was unreasonable. I do not agree.
Mr Platt’s tasks, as the supervisor of an employee who was apparently not performing at or above the minimum prescribed standards, were set out in Australia Post’s “Performance Review Program”[16]. Mr Hill submits that that policy supports the proposition that having a supervisor join him on his round would have been more appropriate that undertaking the outdoor observation of him that Mr Platt undertook. I do not accept that that is so or that the policy details the only steps that might reasonably be taken. The policy details steps to be taken where a postal delivery officer exceeds authorized delivery time including, relevantly, arranging for “outdoor supervision/review if necessary”[17]. There is a reference within the policy to the reviewing officer accompanying the delivery officer on the round “if required”[18]; however, I do not read the document as suggesting that the type of observation undertaken by Mr Platt was not appropriate or that accompanying the observed officer was the only way to supervise or review performance. Given the fact of Mr Hill taking longer than expected and given that there was no apparent or proffered reason for that to be so it was, I would consider, quite reasonable to undertake unannounced observations of Mr Hill’s performance.
[16] Exhibit 1, pages 33-48.
[17] Exhibit 1, page 39.
[18] Exhibit 1, page 46.
Mr Hill submits that on this occasion Mr Platt “threatened” to follow him around the delivery round and that the language was not the language of counselling or training but of intimidation. But Mr Hill appears not to have regarded the comment as threatening or intimidating at the time. He made no reference to the conversation in his witness statement and did not suggest in his oral evidence that he felt threatened or intimidated by Mr Platt’s words. Mr Platt’s language on this occasion was blunt but I do not regard it as threatening or intimidating language to use to an experienced employee such as Mr Hill. He was performing below standard and there was no apparent or proffered reason why that was so. It was quite proper to tell him in plain language that his performance would be monitored.
Complaint is next made of the processes adopted in the formal interview on 24 June 2009. It is said that the “particulars of the complaint are confusing”[19] and that the matter ought to have been undertaken using a different process[20]. But I do not understand Mr Hill to have complained then or now that he was confused by the interview process or what was required of him. Nor does it seem to me to matter that another process under Australia Post’s “Employee Counselling and Discipline Policy”[21] might have been used unless it is to be said that the process adopted was unreasonable or that its implementation was unreasonable. What is submitted is,
“Having followed the Applicant to ascertain why he is taking too long to do his rounds Mr Platt cannot establish a basis for the alleged shortfall and finds another offence. Nevertheless, Mr Platt still threatens the Applicant that he will be under observation, announced or unannounced. The purpose of formal counselling is to be remedial and supportive, this was neither.”
[19] Exhibit 3, paragraph 7.
[20] Applicant’s submissions, paragraph 15.
[21] Exhibit 9.
I do not agree and, contrary to the submission, I would have though that Mr Platt did manage to establish a basis for the shortfall, namely, Mr Hill taking an unauthorised absence to make a private purchase. But it is important to consider the context of this interview. Mr Platt was dealing with two apparent breaches of the Australia Post Code of Ethics. Certainly the Discipline Policy required the interview to be “remedial and supportive” however that policy required a discussion of ways in which change in behaviour or performance might be achieved. And the particular context was that Mr Hill had a history of unexplained underperformance. I regard it as quite reasonable in such circumstances for a manager to inform the employee that further observations will be conducted and “constructive comments on feedback to performance”[22] provided. I should add that I accept Mr Platt’s evidence that he made his observation of Mr Hill on this occasion as a result of a chance encounter rather than because he was, then, following Mr Hill on his rounds as was suggested in cross-examination.
[22] Exhibit 1, page 67.
It is also submitted, in relation to this interview, that Mr Platt ought not have initiated a formal counselling interview because he did not have a reasonable basis for such action. The discipline code said this of formal counselling,
“6.2.8 FORMAL COUNSELLING
a)       OVERVIEW
i)A Formal Counselling is a personal interview between an employee and his or her supervisor or manager and must be remedial and supportive.
ii)Formal Counselling would be held in circumstances where misconduct and/or deliberate under performance against an agreed or required standard which has previously been discussed with the employee through Fact-to-Face Feedback with his or her immediate supervisor, is repeated or continued and further Face-to-Face Feedback is considered ineffective. It may also apply where other alleged deliberate misconduct occurs (eg failure to adopt safe work practices or use personal protective equipment supplied by Australia post, as trained and instructed or failure to show courtesy and respect to a fellow employee or failure to observe a prescribed work policy, procedure or standard etc *).
iii)The objective of Formal Counselling is, where the conduct and/or performance issue is proven, to assist the employee in understanding what needs to be changed, why the change is necessary and to jointly discuss and agree on how the employee can achieve the required change(s) within a reasonable time-frame and maintain that change. The required change(s) in the employee’s behaviour and/or performance is formally documented.
b)       APPROPRIATENESS OF FORMAL COUNSELLING
In determining whether Formal Counselling is appropriate, a supervisor or manager must decide, on the facts and circumstances as known prior to hearing the employee’s response, whether:
·   the situation can be resolved through further Fact-to-Face Feedback;
·   the case should be handled at the next management level and addressed through a Warning Counselling or a Disciplinary Inquiry; or
·   Formal Counselling is sufficient.
[*These examples are used for illustrative purposes only. Each situation must be considered on an individual basis.]”[23]
[23] Exhibit 9, page 15-16.
I consider that Mr Platt’s actions in initiating a formal counselling interview were in accordance with the policy. There had been continued and unexplained underperformance which had been previously been discussed informally. But, in any event, I am not concerned to determine such questions; I am concerned to determine whether management action taken by Mr Platt was reasonable and whether it was undertaken reasonably.
Finally, in relation to this interview, it is said that Mr Platt “threatened” Mr Hill with announced and unannounced observation which “behaviour is not fair and is unreasonable and intimidatory.”[24] Again, it is notable that Mr Hill does not suggest that this interview was upsetting for him or that he was intimidated in any way. In fact his statement suggests that he defended his position.
[24] Exhibit 3, paragraph 7.
It was implicit in Mr Hill’s case that Mr Platt acted unreasonably in undertaking this interview based on two “charges” that had not been the subject of previous complaint and that, on this occasion, because Mr Hill had satisfactorily explained the matters of complaint, there should have been no need for any further review. I do not accept that that is so. The matters of complaint were, properly, regarded as being serious by Mr Platt. It was suggested to him in cross-examination that he would not have dealt with other employees in the same manner. He denied that that was so and I accept what he says. But, more importantly, Mr Platt’s observation of Mr Hill’s absence from his round may have provided an explanation for the underperformance. And it was not the case that Mr Hill’s explanation of having needed to attend the toilet was a complete answer to the complaint; he had undertaken personal business whilst in the shopping centre.
The next complaint relates to the “alternative employment” discussion said by Mr Hill to have taken place about one week after the 24 June 2009 interview. I do not accept Mr Hill’s account of that conversation. I accept that Mr Platt raised the possibility of alternative employment with Mr Hill but that he did so to draw to Mr Hill’s attention the possibility of other work within the Thuringowa Centre. I do not regard the comment as unreasonable, quite the contrary. Mr Platt raised the possibility with other employees in similar positions to Mr Hill.
The next event took place in early August 2009 when Mr Platt raised the fact of some 1993 performance issues. I do not accept, as Mr Hill says, that Mr Platt raised the matter in an aggressive tone. I accept Mr Platt’s evidence of this conversation however I do not consider that Mr Platt acted reasonably in bringing this matter up on that occasion. It would seem not to matter whether Mr Platt’s action in raising the issue is categorised as unreasonable administrative action or reasonable administrative action undertaken in an unreasonable manner. It is enough to say that Mr Platt’s actions on this occasion did not amount to reasonable administrative action taken in a reasonable manner. There seems to me to be no reasonable basis on which Mr Platt could justify raising what was, by then, well and truly ancient history.
It is next necessary to consider the fact of Mr Platt undertaking indoor observation of Mr Hill. This was said to be unreasonable and unfair behaviour which could not be considered to be reasonable administrative action nor considered to have been undertaken in a reasonable manner. I do not accept that a manager observing an employee’s work, whether indoors or outdoors, can be, of itself, unreasonable. There are many proper reasons why a manager may wish to observe work performance. The definition of “reasonable administrative action” in s 5A(2) of the SRC Act is not exhaustive; however it would, at least, be regarded as “a reasonable appraisal of the employee’s performance”. However I do accept that the extent of the observations and the circumstances under which it is undertaken may mean that it is not taken in a reasonable manner.
Mr Hill says that Mr Platt observed him “nearly every day” at this time and that Mr Platt “might be right behind me on my shoulder, or back further, every day” [25]. I do not accept Mr Hill’s evidence. I accept that Mr Platt observed Mr Hill in the course of his indoor work but I am satisfied that the periods of observation were relatively short and that Mr Platt acted as unobtrusively as possible whilst doing so. The evidence does not permit me to say how frequently Mr Hill was observed however I do not accept Mr Hill’s evidence on the point. The note of the discussions on 20 August 2009 suggests that there were observations for about three minutes on 17 August 2009 and further observations on 20 August 2009. Again, the material suggests that there were further brief observations undertaken on 9 October 2009. No doubt there were other occasions however I am satisfied by Mr Platt’s evidence that he undertook observations from a distance of about seven metres, that he was not standing in close proximity to Mr Hill and that he was not staring or glaring at Mr Hill or otherwise acting in a manner that was, or might be perceived to be, intimidatory of Mr Hill.
[25] Transcript page 25, lines 26 & 30-31.
The observations made on 17 and 20 August 2009 suggest that Mr Hill’s performance during those observations was below expectations. On 17 August 2009 Mr Hill sorted fewer letters than expected on two of the three minutes of observation. On 20 August 2009 Mr Platt described the time taken to complete the duties observed as seeming “excessive”. He asked Mr Hill whether there was anything that he wished to raise that might be impacting his performance but there was nothing suggested.
Mr Platt described the purpose of observation as one of ascertaining whether any further training was required but it must have had, as well, an element of supervision about it. Mr Platt was confronted with a situation where, despite earlier attention from Mr Platt, Mr Hill’s performance remained generally below the standard expected of him. It seems to me to be quite reasonable for a supervisor to continue monitoring the performance of an underperforming employee in these circumstances.
I am not satisfied that observation of Mr Hill was unreasonable or that it was undertaken unreasonably; on the contrary I am satisfied that Mr Platt acted reasonably.
Next it is said that Mr Platt isolated Mr Hill from his work colleagues “by requiring him to take early meal breaks and prevented him from attending another function for no apparent reason”. I do not accept that that was so. Mr Platt arranged for others to undertake part of Mr Hill’s indoor duties to ensure that he completed his outdoor rounds in a reasonable time. He did not require him to take early lunch breaks. Mr Hill went to lunch, on some occasions, earlier that his colleagues because his work load was adjusted. I do not regard that as unreasonable. And, as Mr Hill accepted when giving his evidence, he was not prevented from attending the social function; at the highest for him he had an expectation that if he attended he might get into trouble. But, and again as he accepted, Ms Acford, his immediate supervisor, told him that he could attend even though the time he was able to spend at the function was limited.
I do not accept that Mr Platt, or Australia Post, isolated Mr Hill in the manner he claims. To the extent that steps were taken that had the effect that he went on lunch earlier I regard that as a perfectly acceptable action by a manager. It is neither unreasonable, nor done unreasonably.
The next event of which complaint is made is the occasion on 9 October 2009 when Mr Hill was unable to be located by Ms Acford or Mr Platt for some time. Some two days earlier Mr Platt had undertaken a performance review interview with Mr Hill in which Mr Hill was again unable to provide any explanation for a below standard performance. He complains that on this occasion Mr Platt abused him in public and humiliated him. I do not accept that Mr Platt did so because I do not accept Mr Hill’s account of this meeting. I accept that Mr Platt was probably louder than normal in his conversation on this occasion out of frustration at the time that had been wasted looking for Mr Hill. It is perhaps undesirable for a manager to raise his or her voice to an employee and, were that to occur frequently, I imagine that it might amount to unreasonable action; however, I do not accept that one instance of Mr Platt raising his voice could be regarded as being unreasonable.
The final instance of which complaint is made is of the interview of 16 October 2009 when both Ms Acford and Mr Breen were present as well. It is said that on this occasion Mr Platt criticised the number of toilet breaks that Mr Hill was taking “including timing those toilet breaks”. That criticism, it is said, “was not constructive, was unfair and unreasonable”. That is not a fair description of the detail of what transpired in the course of a meeting which, according to Mr Breen’s note, went for 46 minutes. Mr Platt did raise the fact that Mr Hill had left the round to go to the toilet but, as he pointed out in the discussion, the issue was not the fact that Mr Hill went to the toilet but that he had done so from the point on his round that would take him off his round for the longest time. I see nothing unreasonable in the matter being raised in that manner in the course of a long interview. I would have thought that an experienced postal delivery officer like Mr Hill would have taken a toilet break at a more opportune time. During the interview Mr Platt pointed out that Mr Hill, on occasions, had met expectations and, at other times, pointed out where those expectations were not met. The interview seems to me to have been quite balanced and fair. I reject the notion that the interview or any criticism of Mr Hill in it was unfair or unreasonable.

Mr Hill submits that Mr Platt’s conduct demonstrates a systematic case of bullying over a period of time designed to bring about his resignation because, it was said, Australia Post and Mr Platt perceived him to be an inefficient worker. It seems likely that Mr Platt perceived Mr Hill in that way but I do not accept that he bullied Mr Hill as is alleged. It is apparent that Mr Platt considered that Mr Hill was performing below standard and taking longer to perform his duties than might be expected of someone with his experience. From May 2009 onwards Mr Platt subjected Mr Hill’s performance to a degree of scrutiny however I reject the idea that that amounted to bullying. With the exception I have identified in paragraph [44] above I consider that the steps taken by Mr Platt in his supervision of Mr Hill amounted to reasonable administrative action taken in a reasonable manner. With that exception Mr Platt’s conduct towards Mr Hill amounted, in my view, to reasonable supervision of an underperforming employee. It was not unlawful, nor unfair, nor excessive and it did not exceed what I regard as reasonable conduct on behalf of an employer towards an employee.
On the view I take of the matter the vast majority of the conduct complained of by Mr Hill was reasonable administrative action undertaken in a reasonable manner. It is implicit in the conduct of the proceedings by the parties that the acts of Mr Platt complained of were the cause of Mr Hill’s condition of major depressive disorder. Thus, the condition of which Mr Hill complains arises, in the main part, from reasonable administrative action taken in a reasonable manner. The decision in Hart v Comcare[26], as I understand it, has the result that Mr Hill’s condition does not satisfy the statutory description of injury. Accordingly, I will affirm the decision under review.
[26] [2005] FCAFC 16; (2005) 145 FCR 29.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:...........................[Sgd]...............................................
  Alex Seagar, Associate
Dates of Hearing  18 November 2010 (Townsville) & 1 February 2011 (Brisbane)
Date of Decision  22 March 2011
Counsel for the Applicant         Mr RF King-Scott
Solicitors for the Applicant        Slater & Gordon
Counsel for the Respondent     Mr AC Harding
Solicitors for the Respondent    Australian Government Solicitor