Hollis and Comcare (Compensation)
[2017] AATA 49
•24 January 2017
Hollis and Comcare (Compensation) [2017] AATA 49 (24 January 2017)
Division:GENERAL DIVISION
File Number(s): 2014/4105
Re:Janelle Hollis
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:24 January 2017
Place:Sydney
The decision under review is set aside. The Applicant’s 11 October 2013 claim is remitted to Comcare for reconsideration in accordance with these reasons for decision.
...........................[sgd].............................................
Mr P W Taylor SC, Senior Member
Catchwords
COMPENSATION – anxiety and depression – ailment – pre-existing depressive condition – major depressive episode – whether “aggravation” of underlying condition – whether contributed to by employment – whether reasonable administrative action – meaning of “suffered as a result of” – code of conduct investigation – termination of employment – decision under review set aside and remitted for reconsideration
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A(1), (2), 5B(1), 7(4), 14, 16, 67(8)
Cases
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535
Carpenter and Comcare [2010] AATA 62; (2010) 116 ALD 190
Comcare v Canute (2005) 148 FCR 232
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) (2013) 212 FCR 272; (2013) 137 ALD 481; (2013) 302 ALR 608
Comcare v Mooi [1996] FCA 508; (1996) 69 FCR 439
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463; (2012) 125 ALD 181
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1
Dunstan and Comcare [2012] AATA 567
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Ferguson and Commonwealth Bank of Australia [2012] AATA 718; (2012) 133 ALD 200
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Konstandopolous and Comcare [2014] AATA 741
Lim and Comcare [2015] AATA 189
Lim v Comcare [2016] FCA 709
Lucas and Comcare [2008] AATA 1142
McMillan and Anor and Comcare [2010] AATA 628; (2010) 118 ALD 275
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 129 ALD 500
RLDZ and Comcare [2015] AATA 735
Silk and Comcare [2012] AATA 638; (2012) 131 ALD 517
Thompson and Comcare [2012] AATA 752
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Wang and Comcare [2012] AATA 242; (2012) 127 ALD 416
Wiegand and Comcare [2010] AATA 790
Wiegand v Comcare (No 2) [2007] FCA 237; (2007) 94 ALD 154
Wiegand v Comcare [2006] FCA 1620
Yu and Comcare [2010] AATA 960; (2010) 121 ALD 583
Zdziarski v Telstra Corporation Limited [2015] FCA 207REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
24 January 2017
Ms Hollis challenged Comcare’s 30 May 2014 rejection of her October 2013 compensation claim. The review of that decision, in which Ms Hollis has had a limited degree of success (see paragraphs 171 and 172 below) requires an evaluation of the employment related events on which she relied, and other circumstances related to her employment.
MS HOLLIS’ EMPLOYMENT - 2010 TO 2014
Ms Hollis was a member of the Australian Public Service (“APS”) from 1992 until 2014. By April 2010 she had come to hold a temporary “EL1” level posting in the Northern Territory office of the Department of Education, Employment and Workplace Relations (“DEEWR”). Towards the end of the year she took annual leave to be with her son in Newcastle and, because of difficulties he was experiencing, she felt obliged to remain there. In early February 2011 she obtained a temporary work role with Skills Australia, which was apparently then part of the Department of Industry, Innovation, Science, Research and Tertiary Education. Subsequent material events in, and the formal stages of, Ms Hollis’ APS employment were as follows:-
(a)17 October 2011:- Skills Australia offered Ms Hollis a permanent transfer from her Northern Territory position. The offer was contingent on her being willing to take leave without pay for six months after January 2012. It was also subject to the reservation that Skills Australia could not guarantee she would be able to continue to work from Newcastle.
(b) 1-7 December 2011:- Ms Hollis successfully approached the DEEWR Newcastle regional manager (Ms Bourke) requesting assistance in obtaining employment for the six month period from January to July 2012.
(c) 30 January 2012:- Ms Hollis started working at DEEWR’s Newcastle office in the Indigenous Education and Employment Branch (“IEEB”). This was a temporary placement, and at a lower APS classification (APS5) than her formal status (APS6).
(d) (pre) June 2012:- Ms Hollis applied for a permanent APS5 level position within the IEEB.
(e) (pre) 25 June 2012:- Ms Hollis was notified of her successful application for an APS6 level position in the Indigenous Economic Strategy Group in Canberra. But she did not take up that position, because she wanted to remain in Newcastle with her son.
(f) 28-30 June, 6 July, 23 July & 6 August 2012:- Ms Hollis did not obtain the APS5 position for which she had previously applied, but Ms Bourke approached her about taking up another permanent APS5 classification position within the IEEB. Ms Hollis indicated her agreement, and was first formally offered, and then took up, the permanent position.
(g) 18 March to 26 April 2013:- Ms Hollis took up a temporary EL1 (executive level) position as an Employment Project Officer within the Regional Strategies Branch of DEEWR.
(h) May 2013:- Ms Hollis was offered, and took up, an APS5 level role as a contract manager with Job Services Australia (“JSA”) within the Employment Services Branch of DEEWR at its Newcastle office.
(i) 9 September 2013:- Ms Hollis again took up another temporary EL1 position as Employment Project Officer within the Regional Strategies Branch.
(j) 13 September 2013:- Ms Hollis’ appointment to the temporary EL1 position was ended, as a result of her disclosure of apparently unauthorised personal access to DEEWR’s employment services database records, and that access being reported as a potential APS code of conduct breach.
(k) 16 September 2013:- Ms Hollis’ employment role became that of providing administrative support to DEEWR’s Regional Strategies Manager.
(l) post 18 September 2013:- following the September 2013 change of Government, DEEWR was abolished and Ms Hollis was advised of her potential transfer to the Department of the Prime Minister and Cabinet. However the transfer was deferred pending the outcome of the code of conduct investigation.
(m) 23-25 September 2013:- Ms Hollis became the subject of an APS code of conduct investigation relating to her access to DEEWR’s employment services database (“ESS”) records.
(n) about 18 December 2013:- Ms Hollis was notified of the proposal to terminate her employment, as a sanction for the code of conduct breaches found in the code of conduct investigation report. (The investigation report concluded that Ms Hollis’ accessing of DEEWR’s employment services database records, for personal purposes between February 2012 and July 2013, involved breaches of the APS code of conduct - see paragraph 80(v) below.)
(o) 24 January 2014:- Ms Hollis’ APS employment formally ended, as a result of the outcome of the code of conduct investigation.
MS HOLLIS’ COMPENSATION CLAIM
On 11 October 2013 Ms Hollis lodged a compensation claim for anxiety and depression. She said her condition had been caused, or relevantly aggravated, by work related incidents she categorised as “ostracism”, and the consequences of an “ethics dilemma”. In the former category she referred to events in the six month period from March to September 2012. She described them as involving disrespectful conduct from two senior colleagues, preferential allocation of work to others, and a related lack of inclusion in the IEEB work. In relation to the “ethics dilemma” Ms Hollis cited events in the period from October 2012 to 3 September 2013. Those events started with her objection to approving payment of a claim by Mission Australia relating to a former IEEB colleague’s participation in an indigenous vocational training course, an ensuing disagreement with her superiors (and ongoing tension with her colleagues), and what she regarded as the consequences of that disagreement. She claimed that those consequences relevantly included:-
(a) 15 March 2013:- A workplace (“Individual Performance and Development Plan” - “IPAD”) review where her supervisor downgraded one aspect of her performance, because of her prolonged refusal to comply with his instruction to process the Mission Australia payment claim.
(b) May 2013:- An offer for her to move from her IEEB role to a JSA contract manager’s position within DEEWR’s Employment Services Branch, immediately after completing a period of higher duties in an EL1 position as an Employment Project Officer. (She claimed to have regarded the offer as “payback” for her role in the disagreement about the Mission Australia training fee claim.)
(c) 27-29 August 2013:- Statements from a superior, in connection with disagreement about details of a return to work plan (related to the medical certificates referred to in the paragraphs 4(c) and 4(d) below), that perhaps she should leave DEEWR.
Ms Hollis included in her claim documentation various medical certificates attesting to her depressive condition, and to the periods when it had resulted in her being unfit for work. Those certificates related to the following periods:-
(a) 10 to 21 and 25 September 2012 - unfit for work.
(b) 6 June 2013 - unfit for work.
(c) 9 July 2013 to 26 August 2013 - unfit for work.
(d) 26 August 2013 to 16 September 2013 - fit for work three days a week for two weeks and then four days a week for two weeks.
The last of those certificates had been prepared by Ms Hollis’ general practitioner (Dr Himmelhoch) on 20 August 2013. That certificate, and the other documents Ms Hollis submitted with her October 2013 claim, did not address subsequent material events. Most of those later events occurred, or followed on from events that had occurred, between the August and October dates. They mainly related to the circumstances of the code of conduct investigation that ultimately led to the January 2014 termination of Ms Hollis’ employment. (I refer to those particular circumstances more fully in paragraph 80 below.) It is sufficient to note here that the more material events that occurred after 20 August 2013 included the following matters:-
(a) 27-29 August 2013:- Meetings between Ms Hollis and her superiors involving discussion about her proposed return to work (a subject matter to which she had referred in her claim documents). Those discussions also involved (i) her proposed temporary appointment to the EL1 level position as an Employment Project Officer (see paragraph 2(i) above), (ii) the scope of her work in that temporary role, (iii) her revelation that she had accessed departmental database records relating to her son, and (iv) her supervisor informing her that her database access had to be reported as an apparent code of conduct breach.
(b) 28 August 2013:- Dr Himmelhoch issued a medical certificate (completed on 29 August 2013) that Ms Hollis had been unfit “after 10.30am” that morning.
(c) 3 September 2013:- Dr Himmelhoch issued a further medical certificate that Ms Hollis was fit for “modified duties” from 3 to 20 September 2013 for 7.5 hrs per day and three to four days per week. (This certificate related to Ms Hollis taking up the temporary EL1 position on 9 September 2013.)
(d) 16, 23 & 25 September 2013:- Following the termination of Ms Hollis’ temporary EL1 posting, Dr Himmelhoch issued certificates that Ms Hollis was unfit for work on each of those days.
(e) 23 September to 4 October 2013:- Dr Himmelhoch certified that Ms Hollis was fit for restricted duties for four hours per day for four days a week - a work capacity significantly less than her 3 September 2013 certification.
(f) 2 & 9 October 2013:- Dr Himmelhoch certified that Ms Hollis was unfit for work on each of those days.
(g) 7 to 19 October 2013:- In a medical certificate (completed on 3 October 2013) Dr Himmelhoch opined that Ms Hollis was fit to work four hours per day for four days a week.
(h) post 24 December 2013:- as a result of aggravation of her symptoms of depression, Ms Hollis was unfit for work.
COMCARE’S CLAIM REJECTION DECISIONS
Comcare’s original 5 December 2013 decision disallowed Ms Hollis’ October 2013 claim. Comcare accepted that she had a relevant disorder, but regarded it as one whose onset preceded any workplace difficulties. Comcare decided that, by 23 May 2013 when Ms Hollis consulted Dr Himmelhoch complaining of “work problems”, her disorder had been aggravated by the circumstances of her employment. But Comcare also said that some of those significantly contributing workplace difficulties involved “reasonable administrative action”. Comcare included in that category (i) an unsuccessful job application Ms Hollis said she had made in August 2012, (ii) controversy, between October 2012 and January 2013, about the propriety of the Mission Australia training program payment claim, (iii) the March 2013 IPAD performance review related to that controversy, and (iv) her May 2013 move from IEEB into the role of a contract manager in the Employment Services Branch. Because of that contribution from “reasonable administrative action”, Comcare decided that Ms Hollis’ condition was excluded from being a relevant and compensable “injury” for the purposes of s 5A(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).
On 18 December 2013 Ms Hollis foreshadowed a request for Comcare to reconsider its rejection decision. In February 2014 she provided various documents and submissions supporting her reconsideration request.
Comcare’s 30 May 2014 reconsideration decision found that, by 11 September 2012, Ms Hollis had suffered a work related aggravation of a pre-existing depressive condition. However Comcare affirmed its earlier decision rejecting her claim. It did so on the basis that a significant contributor to that aggravation was the lower employment classification (APS5) position offered to her in about July 2012, and which she had taken up in August 2012 (see paragraph 2(f) above). Comcare determined that the appointment of Ms Hollis to that position constituted “reasonable administrative action” for the purposes of SRC Act s 5A(2). Comcare also concluded that DEEWR had carried out that action in a reasonable manner.
CONTENTIONS IN THE REVIEW PROCEEDINGS
Ms Hollis’ principal contention was that her depressive condition resulted from bullying and harassment she experienced after February 2012. She particularly relied on a 27 January 2015 report (from Dr Stephen Allnutt, a forensic psychiatrist) recording a belief that her condition was “probably fully established by the time she began to take leave in September 2012”. Her contention was that the July / August 2012 appointment to the APS5 position was not a significant contributor to her condition. Another of her contentions was that none of the workplace events on which Comcare relied was causally relevant to her condition, even if they were properly characterised as constituting relevant “reasonable administrative action” for the purposes of SRC Act s 5A(2).
On 23 October 2015, in compliance with a Tribunal direction, Ms Hollis’ legal representatives provided a list of the events contended to be relevantly causative of her condition, and a short exegetical statement relating to each such event. This list did not include the March 2013 IPAD review. Neither did it address any of the events that occurred after 13 September 2013. The October 2015 document asserted that Ms Hollis’ compensable psychological condition had been fully formed by some time before 3 September 2013. It referred to the events of 13 September 2013 (see paragraph 2(j) above) as if they involved (and only relevantly involved) mere notification of a formal code of conduct investigation into Ms Hollis’ apparently unauthorised database access.
At the beginning of the hearing, Ms Hollis’ further alternative submissions were that some post September 2012 events (specifically the period 27 August to 13 September 2013 - see paragraphs 77 and 80 below) did not involve action that had been taken in a reasonable manner, even if they involved “administrative action”. Ms Hollis’ final submissions involved explicit concessions that some of the “post September 2012” matters did indeed involve “administrative action”. But they proffered a number of reasons why those “administrative” actions should not be regarded as having been either “reasonable”, or carried out in “a reasonable manner”, for the purposes of SRC Act s 5A(2).
Comcare’s contentions pointed to a history of Ms Hollis’ frequent consultations with Dr Himmelhoch (from 27 June 2011 to early September 2012), typically relating to her concern about her son’s difficulties. Those consultations included:- (i) the June 2011 preparation of a mental health care plan and referral to a psychologist, (ii) a November 2011 diagnosis of depression, and (iii) prescription of anti-depressant medication (in November 2011 and again in early July 2012). Against that background, and at least some of the subsequent work related events, Comcare did not initially dispute that Ms Hollis’ depressive disorder had been contributed to (rather than caused) by various employment events. But Comcare contended that particular causative events constituted (or relevantly involved) reasonable administrative action taken in a reasonable manner: The actions on which Comcare initially relied were:
(a) the employment events from October 2011 to July 2012 - see paragraphs 2(a) to 2(f) above.
(b) Ms Hollis’ August 2012 re-classification and appointment to the permanent APS5 position within the IEEB - see paragraph 2(f) above.
(c) the March 2013 IPAD appraisal (as a result of refusal to process the Mission Australia payment claim referred to in paragraph 3(a) above.
(d) Ms Hollis’ May 2013 move from IEEB to a role as a contract manager within DEEWR’s Employment Services Branch - see paragraph 2(h) above.
(e) the October / November 2013 investigation into Ms Hollis’ APS code of conduct breach (relating to her unauthorised ESS database access) and the December 2013 / January 2014 termination of her employment - see the events referred to in paragraphs 2(j) to 2(o) above).
Comcare’s final submissions did dispute that Ms Hollis had suffered a work related injury in September 2012. (I refer to this contention in paragraph 32 below.). They also identified six matters as involving “administrative action” that enlivened the SRC Act s 5A(1) & (2) exclusion. These matters were:-
(a) “RAA 1”:- a supervisor’s oral instructions for Ms Hollis to process the Mission Australia payment claim.
(b) “RAA 2”:- a 22 November 2012 email instruction to Ms Hollis, to process the Mission Australia payment claim.
(c) “RAA 3”:- the 15 March 2013 IPAD review, which contained an indicative downgrading of her “observable work behaviours”.
(d) “RAA 4”:- the April 2013 offer and transfer of her employment role from IEEB to that of a JSA contract manager.
(e) “RAA 5”:- the code of conduct investigation that commenced in September 2013.
(f) “RAA 6”:- the December 2014 / January 2015 dismissal from the APS.
MARCH TO SEPTEMBER 2012 - OSTRACISM, LACK OF WORK AND RECLASSIFICATION
Ms Hollis’ complaints of ostracism in this period, her asserted dissatisfaction about the circumstances involved in taking up the IEEB APS5 position in August 2012, and the effect of those matters upon her health, have to be assessed against the background of a wider context. That background starts with her June 2011 presentation to Dr Himmelhoch, the preparation of a mental health plan, and her referral to a psychologist. A month later she took two weeks sick leave. Four months later, after several further consultations, Dr Himmelhoch diagnosed her as suffering from depression. Dr Himmelhoch prescribed an anti-depressant and certified that she was not fit to work for a period after 17 November 2011. It was about that time, in early December 2011 that she sought out her temporary IEEB position in Newcastle, as a short term measure to overcome the difficulties created by (i) the contingent offer she had received from Skills Australia (see paragraph 2(a)) and (ii) her maternal preference to remain with her son in Newcastle. In early March 2012, she returned to see Dr Himmelhoch, reporting that she felt awful. Dr Himmelhoch suggested that she return to see the psychologist to whom she had been referred in June 2011. In April, May and early June 2012, Ms Hollis took various weekly periods of annual leave and medical leave.
Thereafter the relevant background context continues with the following events:-
(a) about 25 June 2012:- Ms Hollis learnt that she was unsuccessful in her application for the Newcastle IEEB APS5 position. At about the same time she received notification that she had been offered a role in an APS6 level position in the Indigenous Economic Strategy Group in Canberra. Although this kind of role reflected her personal work preference, it would have required her to leave Newcastle and she did not take up the Canberra position. She did return to see Dr Himmelhoch with concerns about her son’s ongoing difficulties and complaints of anxiety.
(b)28/29 June 2012:- Ms Hollis was offered, and told Ms Bourke (the DEEWR Regional Manager) she would accept, an APS5 level position in the Newcastle IEEB office.
(c)29 June 2012:- Mr Thiveos (DEEWR’s Deputy State Manager) and Ms Robinson (NSW State Office Business Services Manager) and Ms Bourke, exchanged a series of emails for the purpose of approving arrangements to offer Ms Hollis the additional IEEB APS5 position. In those emails Ms Bourke indicated that Ms Hollis would likely be involved in the development of regional strategies and cross collaboration, drawing on her experience with Skills Australia. (Following Mr Thiveos’ approval, on 2 July 2012, Ms Robinson accepted responsibility to attend to the processes necessary to allow the appointment to proceed. Her email indicated that the precise steps would depend on whether or not the successful APS5 applicant accepted the other IEEB position.)
(d)30 June 2012:- Ms Hollis’ IPAD review for the 2012 year contains various comments that are very favourable about her performance and do not include any issues or concerns relating to her work performance. In her own review comments Ms Hollis referred to her IEEB work since February 2012, and her involvement with various programs, claims processing and grants register reporting. She asserted her willingness to contribute to the IEEB team goals. Her supervisor’s comments described her as having responded well to the challenges of moving into a new team, and expressed optimism that with further exposure to, and experience with, the local community she was likely to strengthen her capabilities. Nothing in this review suggests any apprehension about, or difficulties within, Ms Hollis’ current work activities and environment.
(e)6 July 2012:- Ms Bourke sent an email announcing the appointment of Mr Jack (the successful APS5 position candidate) and that Ms Hollis would also continue on within the IEEB.
(f)4-11 July 2012:- Ms Hollis took medical leave. During that period she saw Dr Himmelhoch, on 9 July 2012. She reported a recent, severely upsetting incident concerning her son and her own difficulty in coping. Dr Himmelhoch prescribed another anti-depressant, recommended that she return to see the psychologist, and gave her a medical certificate for her absence from work.
(g)12 July 2012:- Ms Hollis received a copy of Ms Bourke’s 6 July 2012 email.
(h)23 July 2012:- Ms Hollis was sent a formal letter notifying her appointment to an APS5 level position as a contract manager, in the State and Regional Strategy Group at Charleston. The letter asked her, if she agreed to accept the position, and the classification reduction it involved, to complete various consent forms acknowledging her agreement. The letter also advised that her classification reduction would take effect on 6 August 2012.
(i)23 July 2012:- Ms Hollis attended Dr Himmelhoch for a review of her mental health plan. She reported having taken her anti-depressant, without experiencing any unpleasant side effects, and had increased the dose (in accordance with Dr Himmelhoch’s prescription). She reported being less tearful, having started a university course on indigenous studies, and made no complaint about her work environment.
(j)26 July 2012:- Ms Hollis’ contract manager appointment, and her related classification reduction, was formally notified in the Gazette.
(k)3 August 2012:- A DEEWR recruitment advisor telephoned Ms Hollis on Friday 3 August 2012 and then emailed her a copy of the 23 July 2012 offer letter. The advisor noted that although Ms Hollis had not said she did not receive the letter, she had not responded to it. The email reminded Ms Hollis that she was due to start the new position on the following Monday, and said that if she did not wish to accept the offer of the APS5 position, it was “crucial” that she immediately inform the email author, and her current manager.
(l)6 August 2012:- Ms Hollis commenced working in the APS5 position in Newcastle.
(m)9 August 2012:- Ms Hollis returned to see Dr Himmelhoch for a scheduled fortnightly mental health review consultation. She reported continuing to take anti-depressant medication, feeling better and that she was “a bit unhappy at work”. Dr Himmelhoch’s note records that Ms Hollis was to attend an equine therapy session with her son, and Ms Hollis took carer’s leave on 9, 10 and 24 August 2012.
In her original claim documents Ms Hollis focussed this aspect of her claim on a series of events after 27 August 2012 (and it was so treated in Comcare’s December 2013 decision reasons.) However, the attachments to Ms Hollis’ various submissions deal only with an event on 23 July 2012 when she said a supervisor began to allocate work to her, without prior discussion, and despite not having been given work that she had been requesting for months. In her February 2014 reconsideration request Ms Hollis complained about the formal notification she had received about her appointment to the permanent APS5 position in August 2012. She suggested she had been “given a lunch time to make a decision” and sent a Friday email telling her “do not attend the site on Monday” (ie., 6 August 2012) if she declined the offer.
However, Ms Hollis’ complaints about these events assume a different perspective when regard is had to the objective facts. They start with the consideration that since late May 2012 Ms Hollis had taken various periods of leave totalling more than 3 weeks. In late June 2012 Ms Hollis had been party to discussions with Ms Bourke about the prospect of being awarded an APS5 position. Those discussions occurred because she was anxious to secure a permanent position in Newcastle. Ms Hollis knew that Ms Bourke, was actively attempting to arrange such a position for her, and that, by no later than 29 June 2012, Ms Hollis had herself indicated she would accept such a position. The copy of Ms Bourke’s email that Ms Hollis received on 12 July 2012, the day she returned to work after more than a week’s medical leave, patently conveyed that she would be given a permanent position.
The other significant relevant fact is that 23 July 2012 was the date of the letter informing her of her successful appointment to the APS5 position she had previously discussed with Ms Bourke. Furthermore, contrary to the complaints of late notice that she made for the purpose of her claim, Ms Hollis’ own diary notes of 23 July 2012 suggest that she was then well aware of the 23 July 2012 email (see paragraph 15(g) above) and of Ms Bourke’s involvement in facilitating her taking up that position. Moreover on the very same day about which she complains, 23 July 2012, she returned to see Dr Himmelhoch shortly after having begun to take anti-depressant medication, made no complaint about her work situation and reported feeling “less tearful than previously”. Later, in early August 2012, a week after the 3 August 2012 phone call, and three days after starting in the new position Ms Hollis returned to see Dr Himmelhoch. She contemporaneously reported to Dr Himmelhoch only that she was feeling “a bit unhappy at work” and overall was actually feeling better.
In the light of this contextual background, there is no substance in Ms Hollis’ complaints (in her reconsideration submission) about the circumstances in which she was informed of the IEEB APS5 employment offer. Nor is there any substance in her claim that she was, in any way, hastened into an acceptance of it.
It was not until 11 September 2012, when Ms Hollis again consulted Dr Himmelhoch, that she first reported complaints of work isolation, bullying and lack of work. This followed, according to what she said in her 7 September 2013 claim form, a period of months where she had been “excluded, ignored, starved of meaningful work” and a target of escalating negative behaviour. An example of that was, she said, the September 2012 use of “blind copy” emails “which demonstrated intent to demean her”. In a handwritten narrative accompanying her October 2013 claim document she added a complaint about an office car washing incident, and a second email that had been sent to the whole Newcastle office.
The car wash email was the first in time. It was sent by Ms Bate, one of the senior program officers at the Newcastle IEEB office. It did nothing more than note that all the office cars had been “in a disgusting mess”, thank Mr Jack for washing them, and remind the office staff generally that the vehicles needed to be cleaned regularly. It is not possible to draw any personal adverse inference from this communication, or from the events to which it related. Ms Hollis’ claimed interpretation of the significance of this email seems unrealistic and contrived. That impression is reinforced by her complaint about the “blind copy” email to which she referred.
The “blind copy” email was part of a short email string. That string originated from the other senior project officer in the Newcastle IEEB office (Ms Pearce), and was sent within 30 minutes of the “car wash” email. This second email drew the attention of Ms Bate and Ms Hollis to an opportunity to attend a Women’s Networking Day being organised by the Port Stephens Family Support Service. Ms Bate responded by sending an email to Ms Hollis, agreeing that “we” would attend the event. Her email asked Ms Hollis to “put (it) in on our calendars” and to also book a car. Two minutes later, Ms Pearce sent a further email, to both Ms Bate and Ms Hollis, enquiring “What about me”. Her question suggested she was aware of Ms Bate’s email to Ms Hollis (even though she was not shown as an addressee of it). It also made clear that Ms Pearce wanted to attend the networking day with Ms Bate and Ms Hollis.
Ms Hollis, in her original claim document attachments described this email string as “the final straw”. She complained that Ms Pearce had apparently been “blind copied” in on Ms Bate’s email to Ms Hollis and that this “showed me the intent of their emails”. She suggested that the incident was “the culmination of months of negative, disrespectful behaviour with exclusion and ostracism”. Ms Hollis said that, after this exchange of emails, she left the office “very upset”.
I do not accept the claim that this email exchange was itself the cause of any upset to Ms Hollis. Nothing about this email exchange suggests the kind of ostracism about which Ms Hollis claims. In fact the context and content of the email exchange demonstrates Ms Hollis being intentionally included in relevant workplace activities. Ms Hollis’ complaints about these two matters - the supposedly limited notice she received about her permanent appointment to the IEEB APS5 role in July 2012, and the September 2012 emails - were specious.
Ms Hollis also complained (in her February 2014 reconsideration submissions) that she had not been allocated work, in particular that she had not received a geographical region allocation, on taking up her new APS5 position in August 2012. She even went so far as to suggest that the other IEEB APS5 officer (Mr Jack) was allocated a geographical area of responsibility even before he started in the IEEB.) In support of her contentions Ms Hollis included two documents. The first document was a 28 August 2012 email from Mr Bissett (the IEEB program manager) granting access to his calendar to both Ms Hollis and Mr Jack. The second document was one she described as a regional office directory. In that document her name appeared as a program officer, but without an obvious corresponding allocation of a geographical area of responsibility.
There are significant difficulties in accepting, and I do not accept, that either of these documents conveys anything supportive of Ms Hollis’ complaints. The first document provides no basis for a conclusion that she had been relevantly excluded. Indeed, like the email string to which I referred above, it conveys the contrary. Furthermore, other documents Ms Hollis included with her first claim submission actually recorded her allocation to tasks, within the Lismore IEEB area, between 15 and 27 August 2012. They also recorded various travel and accommodation requests from her to attend high schools in Tamworth and Dorrigo. Therefore, bearing in mind that she had only started in the permanent APS5 position on 6 August 2012 (and had previously been in a merely temporary role that had been made available to her on compassionate grounds), the contemporaneous documents she produced rather tend to contradict her complaint.
The second document to which Ms Hollis referred in her reconsideration submission was actually a version of the DEEWR office responsibility chart that had been revised on 26 September 2012. That date is significant for two reasons. The first reason is that it was almost two months after Ms Hollis took up her permanent IEEB position. Earlier documents, relating to the discussions with Ms Bourke about Ms Hollis’ (post 23 July 2012) IEEB role (including Ms Hollis’ own brief diary note of 23 July 2012) suggest that her new role was initially intended to have an emphasis on regional planning strategies and “cross program collaboration”, and that these would involve a new emphasis within the IEEB. The second reason why the date is significant is because it was the day Ms Hollis returned to work after about a fortnight’s medical leave - a matter that again indicates the need for caution before drawing any meaningful inference from the mere contents of the document. In addition, when one looks at the document, it appears to show that Ms Hollis and her colleague Mr Jack shared the same phone number and responsibility for the Central Coast Newcastle and Lake Macquarie program areas. Furthermore, it is important to bear in mind Ms Hollis’ complaint in relation to the Mission Australia Surface Coal Operations Project. On her own admission she was given responsibility for that matter in early October 2012 - that is within a few days after her September 2012 return to work, and within days of the revised “regional office directory”.
Nevertheless, Ms Hollis said that by early September she felt demoralised, anxious and lacking in confidence. Her leave records show that she did not go to work on Monday 10 September 2012 (the Monday after the email string referred to above). On Tuesday 11 September 2012 Ms Hollis did consult Dr Himmelhoch again, complaining of acute distress. Dr Himmelhoch’s notes of the 11 September 2012 consultation record Ms Hollis’ complaints of not having enough work, and her feelings of having been bullied by other women in the office. Dr Himmelhoch continued Ms Hollis’ anti-depressant medication, on the same dosage that Ms Hollis began in late July. She also provided a medical certificate that Ms Hollis would be unfit for work until 21 September 2012. Dr Himmelhoch advised Ms Hollis to voice her concerns to her superiors.
Dr Himmelhoch saw Ms Hollis again on 25 September 2012, and provided another medical certificate for that day. Ms Hollis reported to Dr Himmelhoch that she had met with Mr Bissett and regarded the meeting as having had a positive outcome. Mr Bissett had acknowledged that the office behaviour of the other two colleagues needed to be improved, he had outlined an increased work role for her, and he had encouraged further discussions to “keep things on track”. Dr Himmelhoch’s notes also record Ms Hollis’ contemporaneous concern about her son, her guilt and protectiveness in relation to him, and a concern that her attitude towards him was “in truth giving him permission to misbehave”. (Dr Himmelhoch’s concern in the latter regard was informed by a recent report she had received from the psychologist Ms Hollis had been consulting.)
The discussion referred to in Dr Himmelhoch’s 25 September 2012 consultation notes was a discussion that occurred on 13 September 2012 after Ms Hollis told Mr Bissett she had a medical certificate (for absence from work until 21 September), and he sent her an email asking her to contact him. They met outside the office. It is uncontentious that in this meeting Ms Hollis expressed her unhappiness at work, and was reluctant to return to the IEEB office. But that unhappiness and reluctance was expressed more in terms of the actual behaviour of Ms Bate and Ms Pearce, than complaints about the particular matters (the various emails, and the circumstances of her APS5 appointment) to which I have referred above. That characterisation is consistent with Ms Bourke’s recollection of being aware of relationship tensions between Ms Bate, Ms Pearce and Ms Hollis. It is borne out by the contents of the 12 November 2013 “Work Report” which Mr Bissett (and Ms Bourke) provided in response to Ms Hollis’ October 2013 claim. In several places in that report Mr Bissett (who I assume was the principal contributor to that part of the report) identified the matters contributing to that tension as involving (i) colleagues’ perception of Ms Hollis as “over critical” of their work, (ii) the strong personalities of the staff concerned, and (iii) Ms Hollis’ continued highlighting of what she regarded as her colleagues’ work errors. He said that the relationship between Ms Hollis and the other two women was “at the time acrimonious” and had “eventually culminated” in Ms Hollis taking leave in September 2012.
In the result, Ms Hollis returned to work, on a full time basis, on Monday 24 September 2012. She was given new responsibilities. Sometime in the following seven months she discontinued her anti-depressant medication, took no significant periods off work for medical reasons, and did not return to see Dr Himmelhoch until 23 May 2013.
The likelihood is, and I find, that Ms Hollis’ workplace discontent in September 2012 was principally the result of a personality clash between the three individuals (rather than the elements of “ostracism” and work deprivation Ms Hollis presented in her claim) and was partly fuelled by disagreement (of the kind referred to by Mr Bissett) about the standard of work required within the IEEB. This was the substance of Comcare’s submissions at the hearing, and led on to a further submission that Ms Hollis’ workplace absence in September 2012 was primarily either a matter of merely subjective distress (falling short of proper characterisation as an “ailment” for SRC Act purposes), or one to which her employment had not made any significant contribution. The submission contradicted the position Comcare had taken in the 20 May 2014 reconsideration decision (see paragraph 8 above). But there was some justification for Comcare’s altered position. At the time of the 20 May 2014 decision Comcare did not have Dr Himmelhoch’s medical records covering the period of Ms Hollis’ various attendances between June and early September 2012. The notes of those consultations reveal that Dr Himmelhoch’s qualified 4 November 2013 statement - that Ms Hollis’ mental health was “reasonably OK” in that period - glossed over matters that tended to point to a contrary conclusion. Those matters, together with Dr Allnutt’s suggestion that Ms Hollis may have developed an adjustment disorder by February 2012, were capable of suggesting she had an ongoing condition whose symptoms merely “manifested themselves in varying degrees and in response to stressors at the time”: see Dunstan and Comcare [2012] AATA 567 at [135]. And even the contents of Dr Himmelhoch’s September 2012 notes identify significant contemporaneous non work stressors, and attribute to Ms Hollis accounts that are more critical of the behaviour of her colleagues, than descriptive or her own consequential mental state and symptoms.
However, it is uncontentious that there was a history of workplace tension within the IEEB. That tension had prompted several interventions from Mr Bissett, and appears to have existed for some months. By about August 2012 it had developed into a situation Mr Bissett described as “acrimonious”. It is also significant that Dr Himmelhoch regarded Ms Hollis’ 11 September 2012 attendance - with “acute distress” - as something of a staging point in Ms Hollis’ mental health. Similarly, Drs Allnutt and De Saxe, regarded Ms Hollis’ depressive symptoms as having been aggravated or intensified in September 2012:- see paragraph 97 below. The totality of those considerations lead to the view that Ms Hollis September 2012 presentation to Dr Himmelhoch, and her following period of medically certified leave, were the result of an episode of depression. That depression was significantly contributed to by the acrimonious tensions that had developed between Ms Hollis, Ms Bate and Ms Pearce, and consequently, by Ms Hollis’ employment.
THE MISSION AUSTRALIA TRAINING CLAIM - PAYMENT DELAY
The next matter Ms Hollis raised in her original claim submission was what she described as her “ethics dilemma” relating to the Mission Australia payment claim. I briefly referred to that matter in paragraph 3 above. It is necessary to detail more fully the relevant sequence of events. It was as follows:-
(a)2 April 2012:- On 20 May 2010 Ms Bourke, acting in her role as DEEWR regional manager, approved and then formally initiated an “official order” under a Standing Deed between the Commonwealth and Mission Australia, as an Indigenous Employment Program (“IEP”) “panel member”. The order related to the training of 40 indigenous Australians in surface coal operations, with a view to their employment with Rio Tinto. The commencement date of the activities under the “official order” was 2 April 2012.
(b)about May 2012:- Mr Saunders took a DEEWR redundancy payment and left the IEEB. (It was his position to which Mr Jack had been appointed in July / August 2012 - see paragraph 15(e) above.)
(c)12 June to 9 July 2012:- Mr Saunders participated as a trainee in the Mission Australia Surface Coal Operations Project.
(d)31 August 2012:- Mr Powell, the then relevant DEEWR project officer, acknowledged receipt of a list of trainee participants. He queried Mission Australia about the eligibility of three individuals, but not the eligibility of Mr Saunders). He requested the completed forms verifying the participation of each of the trainees. (Mr Powell sent copies of this email to Mr Bissett, Ms Bate and Ms Hollis.)
(e)12 September 2012 (or shortly thereafter):- Mission Australia submitted the completed participation forms requested by Mr Powell.
(f)pre 11 October 2012:- After her return to work from a period of medical leave Ms Hollis became the “contract manager” for the Mission Australia program and was the DEEWR officer responsible for recommending approval of any payment claims.
(g)11 October 2012:- Ms Hollis made a file note that she said involved some query about the Mission Australia surface coal operation payment claim. (The file note was not put into evidence.)
(h)31 October 2012:- The Mission Australia program manager attended the DEEWR office, met with Ms Hollis, apparently for the second time. She provided Ms Hollis with various required documents. They included payment claim tax invoices, and supporting documents. The tax invoices related to four training “groups”. In the course of the meeting Ms Hollis told the program manager that she would pay the claims for “groups 1, 2 & 4” because they were the groups for which Mission Australia had provided appropriate advice forms. The “claim details” section of the form marked “Group 2”, which apparently covered both groups 2 & 3, listed the names of 20 trainee participants. One name was that of Mr Saunders. Ms Hollis made four hand notations on the “Group 2” form:- (i) she marked two participants as not having completed the full program, (ii) she required a separate claim request in relation to the participation by Mr Saunders, (iii) she crossed out the $8,250 claim amount relating to his participation, and (iv) she reduced the invoice total by the amount she had crossed out.
(i)7 November 2012:- Ms Hollis prepared a further file note relating to the Mission Australia payment claim and, more specifically, to the matters discussed at the 31 October 2012 meeting. She headed her note “outstanding paperwork”. (A later section of the note, and her cross examination concession that she likely had all the required forms for the “Group 2” invoice, suggests that this heading related to queries she had about the employment status of five trainees.) Her note referred to Mr Saunders as a participant in “Group 3” and stated her concern at his “eligibility to take an IEP funded placement for employment after he was granted redundancy”.
(j)7 to 21 November:- Ms Hollis said that on several occasions she raised with Mr Bissett (DEEWR’s Indigenous Programs Manager) her concerns that recommending the payment relating to Mr Saunders’ training was against her ethics, because he had taken the place of disadvantaged people. She said she had sent Mr Bissett various emails requesting a discussion with him about the matter. Although none of those emails was put into evidence, it was actually common ground between Mr Bissett and Ms Hollis (based on parts of her original claim documents, and her February 2014 submission) that they had did have several early discussions, culminating in communications around 21 and 22 November 2012. Mr Bissett said that his response was along the lines that if Mr Saunders met the eligibility criteria under the Deed and the “official order” contract, then DEEWR was obliged to pay the claim. Despite this apparent common ground, in other parts of her February 2104 submission, Ms Hollis said that Mr Bissett made no comment about either of her 11 October 2012 and 7 November 2012 file notes, and never responded to any of her emails requesting a discussion. In the course of her cross examination Ms Hollis went further and claimed that Mr Bissett did not contact her again after the 22 November 2012 email. That claim directly contradicted other parts of her own evidence:- see paragraph 34(n) below.
(k)21 November 2012:- Some time prior to 22 November 2012 Mr Bissett reported to Ms Hollis, advice from the DEEWR Sydney office that the Mission Australia claim should be paid. She said this was in response to the concerns she had raised about (i) delay in the “paperwork” required to support the claim, and (ii) Mr Saunders’ participation in the training program. In her original claim document Ms Hollis said that she then asked Mr Bissett to put the matter of Mr Saunders’ eligibility to Ms Bourke. In her February 2014 submissions she said that after Mr Bissett told her the payment had been cleared by the Sydney office she asked him to send her an email “requesting me to process Mr Saunders into the project” and she would take it to Ms Bourke for advice.
(l)22 November 2012:- Mr Bissett sent Ms Hollis an email confirming the advice he had already conveyed. The email began by referring to an earlier discussion between them. It confirmed that he had discussed the unpaid invoices relating to the “pre-employment and training” component of the Mission Australia program. The email reported that the advice from the State Office personnel was to go ahead and process the payments. It continued with his specific request to “please do so as soon as possible”. In an apparent allusion to her previously recorded concern about the limited employment activity that had followed on from the training component of the program, Mr Bissett’s email also asked her to determine whether the program has resulted in any employment activity. If there had not been any employment commencements, she was instructed to take action to “close the project”.
(m)6 December 2012:- Some of the concerns Ms Hollis had expressed in her 7 November 2012 file note related to the service provider’s delay in providing required supporting documents. However, the “Group 2” invoice form she received on 31 October 2012 indicated that it had in fact been accompanied by all the required forms. (There is also no evidence that Mission Australia was either required to provide, or in fact provided, any additional “paperwork”.) Consistent with that appearance, and partly consistent with Mr Bissett’s request, Ms Hollis processed the claim and sent an email claim remittance advice to the service provider on 6 December 2012. Her advice indicated that the remittance covered most of the claim items - but it did not in fact cover the item relating to Mr Saunders.
(n)post 6 December 2012:- Notwithstanding her claim that Mr Bissett made no comment on her file notes, and did not respond to her emails (see paragraph 34(j) above, and paragraph 37 below), Ms Hollis said (in her September 2015 statement) that after she had paid most of the other claim items, in response to Mr Bissett’s 22 November 2012 email, she spoke to Mr Bissett again. She said she suggested that someone else could process the claim item relating to Mr Saunders’ participation. In response to that suggestion Mr Bissett re-iterated his view that Mr Saunders was an eligible participant. Ms Hollis conceded in evidence that she never did anything further to establish, to her own satisfaction, whether or not Mr Saunders was an eligible or appropriate program participant.
(o)12 December 2012 to 7 January 2013:- Ms Hollis took annual leave. She gave evidence that she had hoped that the Mission Australia payment claim matter would have been resolved - by someone else in the office making the payment whilst she was away on leave.
(p)25 January 2013:- Mission Australia, in an email to Ms Hollis and Ms Bate, queried the short payment of the surface coal operations project claims. The email indicated that the outstanding claim items appeared to be those relating to the whole of “Group 4” and, from the “Group 2 invoice”, those relating to Mr Saunders and two other people who had commenced, but not completed, the training program. Ms Hollis then forwarded the email to Ms Bate and Mr Bissett, with a request that they meet to discuss the matter. Ms Hollis said in her evidence that, despite her request, this meeting never occurred.
(q)21 February 2013:- There was an email exchange between the Mission Australia project manager, Ms Hollis and Ms Bate, apparently about both outstanding payments for the surface coal operations training program and other claims that were due. The full email string was not put into evidence, but apparently involved some confusion. Ms Hollis’ email to Ms Bate was a response to the latter’s request for clarification. She explained that Mission Australia wanted a meeting to discuss outstanding payments “including … Saunders”. Ms Hollis said she had “expressed several times” her ethical concerns about registering Mr Saunders “into ESS” (ie., the relevant DEEWR database) as an IEP participant. She suggested Ms Bate should attend the meeting, and Ms Hollis could provide any necessary information about any other payments or queries. I note, however, that Ms Hollis conceded she had registered other Mission Australia program participants in the ESS system, apparently without any knowledge as to the “jobseeker” status.
(r)February 2013:- Ms Hollis accessed ESS database records relating to Mr Saunders, and other participants, “as part of the payment process”.
(s)pre 7 March 2013:- Given the November and December communications with Mr Bissett, and his unequivocal instruction that Ms Hollis should proceed to process the outstanding Mission Australia claim items, and her own inactivity in obtaining any additional information, it is difficult to see that there was any utility in any further meetings or discussion about that matter. Consistent with that likely inutility, Ms Hollis appears (as a result of the communications to which I next refer) to have recommended, and implemented, full payment of the outstanding “Group 2” claim items.
(t)7 March 2013:- Mission Australia sent a further email to Ms Hollis, apparently querying, and requesting a reconciliation of, the payments that DEEWR had made in relation to the surface coal operations project. Ms Hollis then forwarded that email to both Ms Bate and Mr Bissett, and provided her own explanatory comments. Those comments included a table she had provided to Mission Australia that identified the specific claim invoices, reconciled the invoice amounts with what had been paid, and provided reasons for any outstanding claim balances. The Table reconciliation unambiguously recorded that DEEWR had in fact paid the full amount of the claims for groups 1,2 & 3, including the full amount of the 31 October 2012 “Group 2” tax invoice. (That payment thus necessarily included the Saunders’ claim item, and the other two items Mission Australia had queried in its 25 January 2013 email.)
(u)8 March 2013:- Ms Hollis had a phone call from Mission Australia querying the reasons she had given in her table reconciliation for two outstanding claim items. Ms Hollis then sent an email to Ms Bate (again with a copy to Mr Bissett) reporting the fact and nature of her phone conversation with Mission Australia. She provided the further information that Mission Australia had requested a “full remittance account” for the project - which she said could be provided “through ESS”.
(v)15 March 2013:- Before taking up the temporary Employment Project Officer (“EPO”) position on the following Monday, Ms Hollis met with Mr Powell to arrange to handover to him the projects on which she had been working. She sent Mr Powell an email relating to the Mission Australia “payment enquiries”. The email content consisted only of attachments. Those attachments related only to the outstanding “Group 4” participant claims that Ms Hollis had queried in her 7 March 2013 reconciliation table.
(w)15 March 2013:- Mr Bissett discussed the Mission Australia payment claim at Ms Hollis’ “mid-cycle” performance review meeting. Her resistance to, and delay in, processing that claim, notwithstanding Mr Bissett’s 22 November 2012 email and December 2012 discussion, resulted in his giving her an interim rating “mostly achieves” in relation to her “observable work behaviours”.
(x)18 March to 26 April 2013:- In early March 2013 Ms Hollis had been successful in a merit selection process to take up a temporary position as an Employment Project Officer at the APS level EL1 within the Regional Strategies Branch of DEEWR. Mr Bissett, was a referee supporting her application. In her October 2013 claim documents Ms Hollis described this position, which she filled until 26 April 2013 as one that she enjoyed, and in which she felt valued and acknowledged.
Ms Hollis’ 7 November 2012 note recorded that her only material concern about the appropriateness of the Mission Australia “Group 2” invoice claim was in relation to Mr Saunders’ “eligibility” to participate in an IEP funded placement for employment after he had taken a voluntary redundancy. Nothing in her contemporaneous communications recorded any concern on her part that, prior to his departure from DEEWR, Mr Saunders had used his position to gain a place on the program. Nevertheless, in her 28 November 2013 response to the draft code of conduct investigator’s report Ms Hollis speculated that ESS access records might establish when “the referral to the IEP project was made”. In her oral evidence in the proceedings she raised this matter as a further concern. But when challenged to articulate the reasons for that concern she conceded that (i) at the relevant time she had no knowledge of Mr Saunders’ whereabouts or personal circumstances, (ii) she had no information about how Mr Saunders became a participant in the program, and (iii) participation would have been open to anyone who had approached Mission Australia. Implicit in the last of these concessions, in the nature of the program itself, and in her awareness of the Mission Australia press release, was that the knowledge that potential participation in the program had been promoted by Mission Australia and was publicly available information. Despite all of that material, and the absence of any specific contrary information, Ms Hollis’ ultimate submissions appeared to adhere to contentions that there was a basis for concluding that Mr Saunders had brought himself under the training program, and that she had a legitimate concern about the “ethics” of his conduct. (Unjustified as those contentions were, they highlight the significance of the Mission Australia payment claim in influencing Ms Hollis’ perception of, and reaction to, the events related to the claim:- see paragraph 42 below.)
In her reconsideration request Ms Hollis referred to her file notes of October and November 2012 and complained that Mr Bissett had not responded to either the file notes or to her email requests to talk about the matter. She said that the first time Mr Bissett raised the Saunders matter with her after the November email was during the course of the performance review meeting on 15 March 2013. (I have already pointed out that her own written statement contradicts that claim - see paragraphs 34(j) & (n) above.) In her reconsideration submission Ms Hollis even went so far as to suggest that the payment claim was actually known to be improper, and that Mr Bissett had refused to associate himself with approval of the contentious claim. She asserted a belief that the Mission Australia claim file had actually been deliberately allocated to her, in October 2012, because everyone in the office was aware of an impending official file audit, and no-one else in the office wanted to be associated with the payment claim.
Ms Hollis amplified these complaints in a further document she provided in July 2015, in response to Comcare’s statement of facts and contentions. There she complained there was no evidence that Mr Bissett had in fact obtained advice from the State Office. She said that, although she had processed all the other payment claims, she did not process the component relating to Mr Saunders, because Mr Bissett’s email did not refer to him by name. She professed concern that, if she had recommended the payment she would be held responsible, in the event of any audit querying the payment. She asserted that in the following months she made repeated email requests of both Ms Bate and Mr Bissett in relation to the Saunders payment, and that all of them met with no response. She said that she even suggested to Mr Bissett that he have someone else authorise the payment. Finally, she speculated that there must have been a problem with the payment because “it was left unprocessed until after my handover to Mr Powell” in March 2013.
Ms Hollis’ criticism of the significance of Mr Bissett’s 22 November 2012 email, that it did not specifically refer to the Saunders’ component of the claim was spurious. So too were her argumentative suggestions about the reasons why (i) she had originally been given the Mission Australia payment claim, (ii) she claimed to have regarded the instruction as leaving her open to audit criticism if she had complied with it, and (iii) the Saunders component of the claim had remained unpaid until after her March 2013 handover.
The facts were, as Ms Hollis’ own 7 November 2012 file note indicated, the delayed claim “paperwork” was neither a good reason to refuse, nor did it cause her to refuse, the payment claim. In fact, she had told Mission Australia, at the 31 October 2012 meeting, that most of the claim would be paid, notwithstanding her previous enquiry about the reasons for the “paperwork” delay. The only real reservation she had about the payment, and the main point that she raised with Mr Bissett, was Mr Saunders’ “eligibility”. She conceded Mr Bissett subsequently told her that Mr Saunders was in fact “eligible”. She even conceded, in the course of her cross examination, that she knew Mr Saunders was an “eligible” participant under the relevant program guidelines. Her ultimate point was that she did not personally regard Mr Saunders as an “appropriate” person for “placement” or “referral” into an IEP program. Against that background Ms Hollis conceded in cross examination that Mr Bissett’s 22 November 2012 email was indeed a specific response to her enquiry about the propriety of accepting the payment claim relating to Mr Saunders. She conceded that she had so understood it when she received it in November 2012. She also conceded that she had understood it to convey Mr Bissett’s specific instruction that, despite her own reservations, she was to go ahead and recommend all the outstanding payments being made to Mission Australia, including the component of the claim relating to Mr Saunders’ participation. These concessions reflect the inherent objective reality, and Ms Hollis’ contemporaneous understanding of the reality, of the situation, from 21 November 2012 onwards. Her own claim that she requested a written instruction so that she could take the matter up with Ms Bourke would, if it were true, itself have tended to betray her own understanding of the significance of Mr Bissett’s instruction to her. But the claim (that she would go to the regional manager in an attempt to contradict advice that had come from the State office) was inherently incredible, and there is no evidence that Ms Hollis ever even attempted to contact Ms Bourke at any time before she processed the final payment in March 2013. In those circumstances the more likely version of the conversation between Mr Bissett and Ms Hollis, about the prospect of Ms Bourke being consulted, was the version Mr Bissett gave. Mr Bissett said that, before he sent his 21 November 2012 email he had discussed the Saunders payment claim with the Sydney office and Ms Bourke. Both had regarded the claim as appropriate. Against that background, of unanimous views, his vivid recollection was that the exchange between him and Ms Hollis on this topic was along the lines of Ms Hollis saying “you can drag [me] into the regional manager’s office and I will tell her the same thing”. When one adds to Mr Bissett’s recollection of that exchange, the fact that Ms Hollis never in fact approached Ms Bourke between receiving the November 2012 email, and recommending the final payment in early March 2013, its likely accuracy is only enhanced.
Ms Hollis’ claimed recollection of the relevant sequence of events in relation to the payment of the claim relating to Mr Saunders is, as the immediately preceding paragraphs suggest, highly motivated by her own self-interest, in some respects self-contradictory, and, in relation to the status of the payment claim as at 15 March 2013, demonstrably wrong. In relation to the latter, her various email communications on 7, 8 and 15 March 2013 show that by 7 March 2013 she well knew that the Group 2 invoice claim had been paid in full. She actually provided the reconciliation table, and explained the reasons for other outstanding payments. She conceded that she was the contract manager at the time, personally responsible for recommending the payments, and had accessed ESS records (including those of Mr Saunders) in February 2013 “as part of the payment process”. Her email communications on 7 and 8 March 2013 unambiguously evidence that she was acting in that role, fully aware of the status of the claim, and providing explanatory comments about it. All of these point to the overwhelming probability that she, as the relevant contract manager, had belatedly recommended full payment of the claim. This occurred before (and not, as she claimed, after) Ms Hollis handed over her matters to Mr Powell on 15 March 2013. When she was presented with her own emails of 7 and 8 March, Ms Hollis appreciated their significance, and conceded that she was the contract manager at the time. Despite the absence of any evidence even suggesting that the payment recommendation had been made by someone else, she nevertheless professed certainty that she had not made it. That professed certainty is, in the light of the contents of the March 2013 emails, and the various contradictions and inconsistencies in Ms Hollis’ evidence, not credible. Her disavowal of the payment recommendation is unreliable. I reject it and find that Ms Hollis did in fact, albeit belatedly, recommend and process the Saunders payment claim item.
In the circumstances I have recorded above, I do not accept Ms Hollis’ evidence that Mr Bissett did not respond to her request for specific instructions about payment of the Saunders component of the claim. Similarly, I do not accept the complaints she made in her reconsideration submissions that (at the time of its receipt) she did not regard Mr Bissett’s 22 November 2012 email as a direct response to her earlier enquiry about the propriety of the payment claim. Mr Bissett’s email was an unambiguous instruction to make the Mission Australia payments. In the reality of the circumstances known to Ms Hollis, it specifically addressed the Saunders claim item. Ms Hollis’ belated concession of her contemporary understanding of its purport, confirms that fact. I also reject Ms Hollis’ suggestion that the Mission Australia file had been allocated to her because no-one else in the office wanted to be tainted by responsibility for the payment claims. The contemporary correspondence, and Ms Hollis’ own actions in (belatedly) facilitating the outstanding payments in March 2013, without ever having received the kind of specifically worded direction that she said she had requested, contradicts her claim. The reality of the matter was that Ms Hollis, fully aware of the fact that Mr Saunders was an “eligible” participant in the program, and having that view confirmed by Mr Bissett on more than one occasion, knowingly defied Mr Bissett’s 22 November 2012 instruction. She continued to do so for months. She did so for the sole, and subjective, reason that she did not regard his participation as “appropriate”.
Ms Hollis conceded that, despite both her responsibility as the DEEWR contract manager, and her contact with the Mission Australia program manager, she had never obtained any specific information about the circumstances of Mr Saunders’ participation in the Mission Australia training program. This makes her sustained defiance of Mr Bissett’s instruction difficult to comprehend. But that was the reality. It underscores the depth of her personal disapproval of Mr Saunders’ participation in the Mission Australia program. I accept her claim (evidenced in both her February 2013 email and her October 2013 claim documents) that she regarded Mr Saunders’ participation in the program as raising an “ethical issue”. I also accept that she regarded her “ethical” views as consistent with her belief in an overarching policy intention - that publicly funded indigenous employment programs were directed at disadvantaged and unemployed indigenous people. Those views led to her being fundamentally disappointed by the attitude of her DEEWR superiors in regarding Mr Saunders’ formal program “eligibility” as a sufficient, indeed determinative, criterion for the purposes of the Mission Australia’s payment claim. I also accept that her disappointment was compounded when her “ethical” views, after being dismissed as non-determinative, became a focus for criticism of her work performance. It did so during, and became a matter of real significance after, her IPAD mid cycle review in March 2013. I deal with that matter in the next section of these reasons.
15 MARCH 2013 - “MID CYLE” IPAD REVIEW
Ms Hollis’ “mid cycle” IPAD review meeting with Mr Bissett occurred on 15 March 2013. (It had been deferred from 1 March 2013 because of a clash with her interview for the EL1 position she took up on 18 March 2013. Ms Hollis appears to have been advised of the re-scheduled date on 7 March 2013, very shortly before she sent her email to Ms Bate and Mr Bissett with the reconciliation of the Mission Australia payment claims.) The purpose of the mid cycle review was to provide time for both employees and their supervisors to discuss the employee’s performance “against key business deliverables and observable work behaviours”, and provide the employee with feedback. The supervisor’s responsibility in relation to the “mid cycle” review was to provide an indicative rating, and clearly identify how the employee was performing “in relation to the four point rating scale” for both deliverables and behaviours. (Those criteria were specified in the employee’s “IPAD”. The three observable work behaviours in Ms Hollis’ IPAD were consistently stated as (i) teamwork and flexibility, (ii) respect and professionalism, and (iii) development and maintenance of productive external and internal relationships.) A “mid cycle” review did not involve a formal rating of an employee’s performance - that could only be done at the (June) cycle end. But both supervisor and employee were expected to participate in the review discussion and to record their comments “on the mid cycle form”.
The meeting took place after Ms Hollis had sent Mr Bissett the emails of 7 & 8 March 2013 confirming the payment of the contentious Mission Australia payment claim. It occurred on the following Friday afternoon, very shortly after Ms Hollis had sent emails to Mr Powell, with information about the status of the claim payments.
The substantive content of the mid cycle IPAD review form report by Mr Bissett was brief, and largely self-explanatory. It was in the terms I set out below (to which I have added - in parenthesis - the explanation for the rating abbreviations). (I note that Ms Hollis never entered any comments in the report form.)
Supervisor Comments: During the performance period Janelle is effectively applying technical skills and organisational knowledge to achieve outcomes. Janelle is a conscientious employee with a matching work output producing quality work.
KD / BO Rating Consistently Achieves {Key Deliverables}
OWB Rating Mostly Achieves {Observable Work Behaviours}
The overall “supervisor comments” can only be regarded as Mr Bissett’s endorsement of Ms Hollis’ work performance. The same observation applies to the “Key Deliverables” rating - “consistently achieves”. A complaint made in Ms Hollis’ submissions was that the rating was the second lowest of four possible ratings. That criticism was literally true. And it is clear that Ms Hollis was dissatisfied about the “mostly achieves” rating. But the reality is that the “mostly achieves” rating for “observable work behaviours” was merely indicative, and was still a satisfactory rating, as Mr Bissett said in his oral evidence. And the positive commendation apparent in the totality of his comments in the IPAD assessment is consistent with the remarks in the contemporary interview assessment that resulted in Ms Hollis taking up the EL1 Employment Project Officer position on 18 March 2013.
Neither Ms Hollis nor Mr Bissett gave a detailed account of the sequence or content of the discussion at this meeting. Nevertheless, it was common ground that Mr Bissett raised the question of the delayed payments to Mission Australia, and Ms Hollis reiterated her objection to processing the Saunders portion of the claim, despite Mr Bissett’s November 2012 instruction, and despite her own knowledge that Mr Saunders’ placement met the relevant eligibility criteria. In his original response to Ms Hollis’ claim, Mr Bissett had noted Ms Hollis had “repeatedly” stated she found his participation in the training program as unacceptable. He explained that the reason for her “mostly achieves” rating was her complaints about Mr Saunders’ participation and, more specifically, her refusal to process the claim. Mr Bissett said Ms Hollis appeared despondent during the meeting, was unwilling to enter into discussion with him, and had declined to respond to his invitation for her to comment.
In her original claim documents Ms Hollis said that in the IPAD mid cycle review meeting Mr Bissett had raised her “ethics” in relation to the Saunders payment claim, and “tensions within the team”, as the reason for her “mostly achieves” rating. She said she thought this “mid cycle” rating was an instance of her being “punished for challenging poor behaviour and practices”. In her 8 September 2015 statement Ms Hollis said she challenged Mr Bissett on both these points during the IPAD meeting. She said it was unfair to lower her rating because she had spoken up about something she believed was unethical. She asked him why he was “condoning” the behaviour of Ms Bate and Ms Pearce, by rating her down. He responded that they would also be rated down. Ms Hollis said she told Mr Bissett that she would be seeking a review with Ms Bourke. In her cross examination in the present proceedings Ms Hollis said she asked Mr Bissett whether he had discussed the matter with Ms Bourke and whether she knew “that the reason I was being rated this way was because of Brian Saunders being on the project”.
In her February 2014 reconsideration submission Ms Hollis complained that Mr Bissett had not arranged a mutually agreeable time for her assessment, and did not provide reasons for his “mostly achieves” rating. She also implied that Mr Bissett’s IPAD assessment was unreasonable because he had never given her a specific instruction to make the particular payment recommendation relating to Mr Saunders’ participation in the Mission Australia training program. But, as I have previously noted (see paragraph 39 above) Ms Hollis later conceded that she had in fact understood Mr Bissett’s 22 November 2012 email as precisely such an instruction.
The first of Ms Hollis’ other criticisms of the IPAD assessment procedure is not warranted. It was not reflected in any earlier complaint Ms Hollis had made. It seems inconsistent with the communications involved in the deferral of the date for the meeting, and with the fact that it occurred on the last working day before she took up her temporary EL1 placement. It was contradicted by Mr Bissett (in his response to the February 2014 submission.)
The second of Ms Hollis’ February 2014 criticisms of the IPAD assessment relates only to the limited details recorded in the formal IPAD report - see paragraph 45 above. But the report, brief as it is, appears to comply with the relevant form requirements. Moreover it is clear that, on Ms Hollis’ own version of events she told Mr Bissett, during the meeting, that she would ask Ms Bourke to review her assessment, and she specifically asked him whether he had disclosed to her the fact of Mr Saunders’ involvement in the Mission Australia payment claim. That version of events tends to reveal that Mr Bissett had conveyed to her, and that Ms Hollis well understood, the primary reason for her “mostly achieves” rating was her persistent refusal to process the Mission Australia payment claim, and comply with Mr Bissett’s instruction. That view is confirmed by her report to Dr Himmelhoch on 23 May 2013 - when she next consulted the doctor after completing her temporary placement in the EL1 Employment Project Officer position - that she had a “negative performance appraisal” as a result of her objection to the “unethical” and “fraudulent” behaviour relating to Mr Saunders’ participation. In those circumstances, there is no substance in Ms Hollis’ claim that the lack of explicitly stated reasons in the formal IPAD report precluded her from making an effective response to it - see paragraph 43 above.
In her original claim documents Ms Hollis said that one of the reasons Mr Bissett gave her for the “mostly achieves”’ rating was the “tension in the team” - an explanation that she understood to refer to her relationship with Ms Bate and Ms Pearce. However, I have already adverted to Ms Hollis’ cross examination evidence indicating her contemporaneous understanding that the Mission Australia payment claim was the operative reason for her indicative rating: (see paragraph 48 above).
In his account of the discussion, in his 29 June 2015 statement, Mr Bissett said, in somewhat ambiguous wording, that he had told Ms Hollis his intention to provide an indicative “mostly achieves” rating was primarily based on her refusal to comply with his directions in relation to the Mission Australia payment, and her contribution towards the poor relationship within IEEB - between herself and Ms Bate and Ms Pearce. However in his March 2014 response to Ms Hollis’ reconsideration submission he had said that the Saunders matter was the primary reason he had given for his indicative rating, and that the relationship tensions, whilst a consideration, were not a significant reason for his assessment. He repeated that view in his December 2015 statement. It was a view that was also held by Ms Bourke. She said that, before the 15 March 2013 mid cycle review meeting she had been aware of Mr Bissett’s proposed assessment, knew that it was primarily based on Ms Hollis’ conduct in failing to process Mr Saunders’ training payment claim, and agreed with the “mostly achieves” assessment. It was a view to which Mr Bissett also adhered in cross examination. He explained that he was aware of complaints from other staff members about Ms Hollis’ criticisms of their work, and that those criticisms were part of the tension in the IEEB office. (Ms Bourke gave evidence that Mr Bissett had periodically communicated to her concerns about that matter.) But, as to the particular relationship tension between Ms Hollis, Ms Bate and Ms Pearce, he had concluded, following various conversations with Ms Hollis, Ms Bate, and other staff members, that was primarily a clash of personalities - to which they had all contributed.) Mr Bissett explained that the tensions he had alluded to in the meeting had been merely a “discussion item” and had not really impacted on his decision to apply an indicative “mostly achieves” rating of Ms Hollis’ work behaviours in March 2013. I regard that explanation from Mr Bissett as consistent with his earlier statements, consistent with the observable work behaviour criteria in Ms Hollis’ IPAD, and consistent also with their proper application (which would limit the extent to which mere personality related disputes could properly be permitted to influence an IPAD rating).
Contrary to Ms Hollis’ claims, there was nothing unfair, inappropriate or unreasonable in Mr Bissett raising, in the March 2013 mid cycle review, his concern that she had failed to comply with his earlier specific instruction. It is quite clear, from the sequence of events outlined in paragraphs 34 and 37 above, that Ms Hollis had knowingly and persistently defied his specific instructions to process the Mission Australia payment claim. Given that failure it was appropriate, and in the light of the purpose of the “mid cycle review” procedure, probably necessary, for Mr Bissett to have raised the Saunders matter. Furthermore, given Ms Hollis’ persistent failure to process the payment claim, even after Mr Bissett’s 22 November 2012 email and December discussion, it is difficult to see that Ms Hollis could properly have been given any indicative rating other than “mostly achieves”. Her prior formal rating had been “consistently achieves”, but that was not an assessment that had a continued application, against the background of her sustained refusal to process the Mission Australia payment claim, and her failure to comply with Mr Bissett’s clear instructions.
However, as I indicated in paragraph 42 above, I do accept that Ms Hollis’ subjective dissatisfaction with her March 2013 mid cycle IPAD indicative rating, because it was based on her refusal to process the Mission Australia payment claim relating to Mr Saunders, was a matter of real significance to her. The involvement of Mr Saunders as a program trainee was at the basis of the “ethics dilemma” she identified in her October 2013 claim (see paragraph 3 above). It figured in the reasons she gave to Dr Himmelhoch when she re-presented on 23 May 2013 - and described it as “fraudulent behaviour”. It was the matter that Dr Himmelhoch reported (in her 4 November 2013 letter to Comcare) as one of the major reasons for the deterioration in Ms Hollis’ mental health in May 2013. Following Ms Hollis’ move into the JSA team (a move I discuss in the next section of these reasons) her dissatisfaction over the Mission Australia matter and, in particular, the indicative IPAD rating, continued to be a very significant factor in her ongoing workplace dissatisfaction. Such was her continuing concern over the matter, that she even improperly accessed Mr Saunders’ ESS database records after her May 2013 move into the JSA role, when she had no work related reason for so doing.
29 APRIL - 1 MAY 2013 - JSA TEAM PLACEMENT OFFER
The temporary EL1 position Ms Hollis took up in the Regional Strategies Branch on 18 March 2013 ended on 26 April 2013. Before her return from that position, Ms Bourke (who had facilitated first Ms Hollis’ temporary, and then her permanent, employment in the Newcastle office - see paragraphs 2(b) and 2(f) above) suggested to Mr Bissett the possibility of Ms Hollis moving to a different section. She did so because Ms Hollis had told her she was particularly happy in the temporary role, and out of concern about both Ms Hollis’ wellbeing and the impact that relationships within the IEEB were having on its work. (Ms Bourke highlighted Ms Hollis’ views over the Mission Australia payment claim, and Ms Hollis’ criticism of colleagues’ work - see paragraph 52 above.) The proposal Ms Bourke and Mr Bissett agreed upon, in conjunction with the JSA manager, Mr Taylor, was that Ms Hollis would be offered an opportunity to move to a contract manager’s role within JSA.
At one point in her original claim documents, Ms Hollis said that when she first returned to the IEEB (on 29 April 2013) one of the JSA supervisors spoke to her whilst they were waiting for the lift, and commented that she would be joining his team. But it is clear that this was merely a casual exchange, likely prompted by awareness of Ms Bourke’s proposal, and an expectation it was something that Ms Hollis already knew about. A little later in the morning Mr Bissett had a more specific conversation with Ms Hollis. He told her that there was a job available in JSA, and it was a matter for her whether she took it up, or returned to work in the IEEB. Ms Hollis said she responded to this offer by commenting that she did not believe it was a real choice “considering the circumstances”. However it seems that Mr Bissett told her that she could think about it and did not have to make a decision on the spot.
Ms Hollis’ submissions did not contend, nor is there a basis to find, that the dismissal process was carried out in an unreasonable manner. Ms Hollis received the investigator’s report sometime around 14 November 2013. She was given an opportunity to make submissions about the appropriate sanction (a matter that the investigator did not address) and apparently availed herself of that opportunity.
I have set out the substance of the investigator’s finding in paragraph 80(v) above. It is apparent from those findings that the investigator found that Ms Hollis had not behaved with honesty and integrity, and that she had consistently defied basic directions on the permissible use of official records. Her APS dismissal in reliance on findings of that kind was a reasonable course of action, having regard to the obligations contained in the APS code of conduct.
“AS A RESULT OF” REASONABLE ADMINISTRATIVE ACTION
SRC Act s 5A(1) operates to exclude the statutory compensation entitlement if Ms Hollis’ relevant ailment (including aggravation or recurrence) was “suffered as a result of” relevant and reasonable administrative action - even if there were other significant causal contributors: see Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at [18] & [26]. In Reeve, Gray J observed that neither of the expressions “as a result of” (reasonable administrative action) and “in respect of” (the employee’s employment) appeared to restrict “the kind of connection that was envisaged”, and permitted an indirect relationship and proximity: see 199 FCR 463 at [29].
In the present matter Ms Hollis conceded that a merely operative causal contribution would suffice to enliven the “reasonable administrative action” exclusion in the case or ordinary physical injury. But in the case of an ailment (including the aggravation of an ailment) the submission was that only a significant contribution would attract the exclusion. This submission was based on the proposition that an ailment or aggravation only fell within the SRC Act meaning of “disease” where the employment contribution had been “substantially more than material”:- see SRC Act s 5B(1) & (3). The submission essentially involved two contentions. The first was that the “significant degree” criterion for employment contribution to disease (in SRC Act s 5B(3) should be “symmetrically” applied to the “as a result of” causal exclusion that applies to “reasonable administrative action” (in SRC Act s 5A(1)). The second contention was that, in the circumstances of the present case it is possible, and appropriate, to categorise the various aspects of “administrative action” relied on by Comcare as involving merely a “small” contribution, or one that was “another cause completely”.
The first of these contentions does not reconcile with the text of SRC Act ss 5A & 5B. SRC Act 5A(1) uses the expression “as a result of”, apparently in direct contrast to the “significant degree” criterion in SRC Act s 5B(3). This contrast points to the unlikelihood that the two expressions were intended to have a synonymous meaning. In addition to that specific contrast, it is significant that the “as a result of” expression in SRC Act s5A(1) is expressed to apply - to “a disease, injury or aggravation”. The use of the indefinite article “a” means that the expression “as a result of” applies indifferently to “any” of the three alternatives. That indifferent application increases the unlikelihood of the construction urged on Ms Hollis’ behalf. This is because the “as a result of” expression, when applied to an “injury (other than a disease)” would include any operative cause of that injury - as Ms Hollis’ submissions correctly conceded. Consequently, the submission involves the proposition that the same statutory expression was intended to have a different meaning when applied to “injury (other than disease)”, on the one hand, and to “disease” on the other. When the submission is analysed in this way, against the actual wording of the SRC Act s 5A(1) exclusion, there is no contextual warrant for, and significant indications against, acceptance of the “symmetrical” contribution submission. The statutory wording actually tends to provide a contradiction, and requires rejection of the submission.
That conclusion has been contentious in previous Tribunal decisions. In Carpenter and Comcare (2010) 116 ALD 190; [2010] AATA 62 at [99]–[105] the Tribunal expressed the view that the operation of the administrative action exclusion would be “incongruous” unless the requirement for a material contribution was “implied”. In Wang and Comcare at [53]-[54] the reasons for decision expressed the views that the construction of the SRC Act 5A(1) exclusion suggested in the preceding paragraph was illogical and unsupported by anything in the SRC Act wording. Other decisions of the Tribunal, relying mainly on the reasoning in Reeve, came to a different view, one consistent with the interpretation favoured in paragraph 156 above: see Dunstan and Comcare [2012] AATA 567 at [280] -[281]; Silk and Comcare (2012) 131 ALD 517; [2012] AATA 638, per Hotop DP & Dr Chaney M at [67]-[68] and Ferguson and Commonwealth Bank of Australia [2012] AATA 718; (2012) 133 ALD 200 at [125]-[126]. Notwithstanding those latter decisions, the view that the “as a result of” exclusion required a “significant” contribution, apparently became a matter of orthodoxy between the parties to compensation claims, and despite further expressions of scepticism by the Tribunal:- see Konstandopoulos and Comcare [2014] AATA 741 at [75]-[80].
Notwithstanding the orthodoxy referred to in the previous paragraph the reasoning in the decisions in Carpenter and Wang provides no justifiable support for the “symmetrical” causation construction of the “as a result of” exclusion. The reasoning in Carpenter involved implying a requirement of materiality into SRC Act s 5A(1), but refrained from any attempt either to articulate the content of the implication, or to reconcile it with the actual statutory wording. Such an approach, which elevates a purposive construction above the limitations of the statutory text, is inconsistent with the approach to statutory construction endorsed by the High Court in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531. In that case the High Court addressed the matter in these terms (omitting the footnoted references):-
[38] The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
The decision in Wang similarly refrained from close textual analysis, and appears to have regarded three earlier Federal Court decisions (Wiegand v Comcare Australia [2006] FCA 1620; Wiegand v Comcare Australia (No 2) [2007] FCA 237; (2007) 94 ALD 154 and Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536) as decisions that the administrative action exclusion required a material contribution before it was enlivened. Neither case in fact involved any such decision. The exclusion was irrelevant to the judgment in Sahu-Khan and was not even considered in that case. The Federal Court decisions in the Wiegand matter involve an unusual history. Nevertheless, when properly understood, they involve an assumption, and not a decision, that the “as a result of” criterion required a material causal contribution. In the Wiegand matter the Tribunal had found that the relevant administrative action was a material contributor to the injury. The only issue in the Federal Court appeals was whether that finding involved an error of law. In the first Federal Court decision, Finn J held that the concept of “material” contribution required only an operative cause. In the second Federal Court decision, acting on his own initiative, and relying on observations in Comcare v Canute (2005) 148 FCR 232, Finn J decided that a material contribution required more than a merely operative cause, and set aside the Tribunal decision. The remitted matter was later the subject of the Tribunal’s further decision in Wiegand and Comcare [2010] AATA 790. In that decision the Tribunal (constituted by President Downes, Deputy President Hotop and Professor Reilly) noted that the second Wiegand decision had been regarded as deciding that the “as result of” criterion required a material contribution. But the Tribunal went on to note that no such requirement was expressed in the statutory provisions, and cautioned against its uncritical acceptance.
Whatever doubt there might have been about the proper interpretation of the SRC Act s 5A(1) exclusion, and the causative contribution necessary to enliven it, has been effectively resolved by the Federal Court decision in Zdziarski v Telstra Corporation Limited [2015] FCA 207 at [31]-[32], and the High Court’s decision in Comcare v Martin [2016] HCA 43. The former case did not directly involve the proper interpretation of SRC Act s 5A(1), but it is strongly supportive of the construction adopted in Silk and favoured in Wiegand and Comcare [2010] AATA 790. The decision in Comcare v Martin case involved a failure to obtain a promotion and a question whether that failure was relevantly causal (for the purposes of SRC Act s 5A(1)) when the main effect on the compensation claimant was not disappointment about the unsuccessful application, but rather apprehension that the failure would require the disappointed worker to return to a work role they had previously found hostile and stressful. In holding that this indirect causal relationship was nevertheless sufficient, the High Court clearly adopted the view that any operative causal impact resulting from the administrative action enlivened the exclusion. The most significant passage in the High Court’s judgement is contained in paragraph [47]. But an argument advanced in Ms Hollis’ final submissions requires setting out the whole of paragraphs [44] to [47]. They were in the following terms:-
[44] The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee's employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee "as a result of" reasonable administrative action taken in a reasonable manner in respect of the employee's employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee's employment which answers that description of reasonable administrative action.
[45] When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease "as a result of" administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.
[46] That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to "ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers' compensation" and as including, in particular, to prevent claims "being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of" such action. The taking of administrative action in respect of an employee's employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee's reaction.
[47] Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
The whole tenor of these passages in the High Court judgment in Martin is to emphasise that the “reasonable administrative action” exclusion is triggered if the contentious action was a “cause in fact” of the claimant’s disease: see the use of that expression in paragraph [45]. Nevertheless, Ms Hollis’ final submissions contended that the Martin reasoning, and specifically the last sentence in paragraph [45] had resurrected the “orthodoxy” referred to in paragraph 157 above, and had limited the operation of the exclusion to instances where (i) the contentious action had been a significant cause of the claimant’s disease, and (ii) there was no other employment related cause of the disease.
The final sentence of paragraph [45] of the judgment in Martin, if taken in isolation and read literally, does appear to lend some support to Ms Hollis’ final submission. But the reasoning in Martin is hardly likely to have been intended to have “abrogated” the effect of the Full Court of the Federal Court’s decision in Hart v Comcare when it makes no reference to that decision. Furthermore, the final sentence in paragraph [45] cannot be divorced from the sentence that precedes it, and cannot be read in isolation. The full context of paragraph [45] emphasises the simple “cause in fact” enquiry, recognises the potential combination of multiple employment related causes, and eschews any evaluation of their comparative causal contribution. So understood, the reasoning in Martin is quite inconsistent with Ms Hollis’ contention.
The second contention advanced on Ms Hollis’ behalf, postulating “small”, and permissibly ignored, causal contribution is merely a hypothetical construct. It has no substance in relation to the causal significance of the matters relied on by Comcare as constituting “reasonable administrative action”. For the reasons I set out below, none of them made a causal contribution that was merely “small” in the sense contended for on Ms Hollis’ behalf.
“AS A RESULT OF” - SPECIFIC FINDINGS
I have found that the following matters constituted reasonable administrative action, and that the action was taken in a reasonable manner:-
(a) “RAA 3”:- the 15 March 2013 IPAD review, which contained an indicative downgrading of her “observable work behaviours”;
(b) “RAA 4”:- the April 2013 offer and the transfer of her employment role from IEEB, to JSA contract manager;
(c) “RAA 5”:- the code of conduct investigation that commenced in September 2013; and
(d) “RAA 6”:- the December 2013 / January 2014 dismissal from the APS.
RAA 3
RAA 3:- Ms Hollis’ submissions contended that “RAA 3” - the IPAD review indicative rating - whilst concededly responsible for a continuing “sense of injustice and unfairness” “most likely” had only a temporary effect, and did not relevantly contribute to any “injury”. I do not accept this submission. The reality is that Ms Hollis progressively ruminated on the reason first of all for her IPAD rating, then on her move to JSA in May 2013. In mid May 2013 she was complaining to Dr Himmelhoch about fraud, and that being responsible for her “negative performance appraisal”. Her rumination on both of those matters was brought to a head following Mr Saunders’ appearance at the office on 5 July 2013, and then triggered the prolonged period of illness, and absence from work, in July and August 2013. When she attended Dr Himmelhoch on 17 July 2013 she again attributed her move to the JSA role to the consequences of her questioning the Mission Australia payment claim, and her IPAD appraisal. Those complaints, and attributions, figure prominently in Dr Himmelhoch’s 4 November 2013 letter. The totality of those considerations comfortably justify the conclusion, and I find, that the 15 March 2013 IPAD review and indicative rating did meaningfully contribute to the aggravation of Ms Hollis’ depression. If, contrary to the views I have earlier expressed, the required causal contribution must be significant, then the matters to which I have referred would also satisfy that standard. Consequently, Ms Hollis’ ailment, the depression that Dr Himmelhoch diagnosed in July 2013, and which continued to affect Ms Hollis at the time of her return to work in late August 2013, was a result of reasonable administrative action, and is not an “injury” for SRC Act purposes.
RAA 4
RAA 4:- The same conclusion applies to the causal significance of RAA 3 - the April 2013 JSA job offer. Ms Hollis said she regarded this offer as one that gave her no real choice. I have rejected that characterisation of the offer, and found that it did not even match her own contemporaneous understanding. But I do accept that her personal preference, based on the nature of the work, was to remain in the IEEB. I also accept she regarded the offer as indicating that she was not “welcome” in the IEEB. More importantly her belief about the motivation behind the offer, perhaps coupled with an element of subjective dissatisfaction about the nature of the work, and the work environment, in the JSA role, led her to regard the offer as a form of payback or punishment, for her conduct in relation to the Mission Australia payment claim and also in relation to the difficulties that had affected her working relationship with Ms Bate and Ms Pearce. That subjective characterisation of the reasons underlying the April 2013 JSA offer was evident in Ms Hollis’ statements to Dr Himmelhoch that she felt humiliated by the JSA move, and that it had been triggered by her IPAD appraisal, in her October 2013 claim documents, in her February 2014 submissions, in her September 2015 statement , and in her oral evidence.
Ms Hollis’ submissions contended that the JSA job offer had no significant causal role in the aggravation of her condition, because the real, or preponderantly more significant, contributors were the circumstances she encountered in the JSA role. Those circumstances included the absence of a formal and announced welcome once she had decided to take up the role, the absence of any patent explanation for her move, and her complaints about the limited scope of the work she was allocated within the JSA role. The difficulty with these submissions is that they overlook the underlying significance which Ms Hollis herself attributed to these matters. It was that they re-inforced her belief that the offer was in the nature of payback and punishment. The JSA workload she did not regard as sufficient for a full time role. That indicated to her the absence of an operational reason for the offer. She was unwilling to tell her new JSA colleagues that she had accepted an offer to move, because she did not feel she could explain to colleagues the real reasons why she believed she had been moved. The totality of Ms Hollis’ evidence was that she believed she had been “moved” (ie., made an offer she had come to view as one she could not refuse) as punishment. That notion of punishment associated with the offer, and her resentment of it, continued to operate at the time of Mr Saunders’ office attendance on 5 July 2013, and was one of the factors underlying her reaction to it. In those circumstances it is appropriate to conclude that Ms Hollis suffered the aggravation of her depressive condition in July 2013 partly as a result of the April 2013 JSA job offer.
RAA 5
Ms Hollis’ submissions conceded that she had suffered significant symptoms as a result of the code of conduct investigation. But they contended that those symptoms merely manifested her underlying “fully established” depressive condition. Alternatively, if the effect of the investigation was properly characterised as an aggravation of that condition, then only the particular effects of that aggravation fell outside the concept of “injury” for the purposes of SRC Act s 5A(1).
These submissions do not reflect the reality of the events involved in the investigation. As I pointed out earlier (see paragraph 81 above) Ms Hollis was, as a result of the matters related to the investigation, removed from her temporary EPO role, deprived of ESS access, and moved to another less demanding role in providing administrative support for the RSA manager. These were wholesale changes in her circumstances and starkly contrasted with the position she had expected to be in following her return to work in late August 2013, and after taking up the temporary EPO position. Ms Hollis’ own statement was that the code of conduct investigation “knocked me around big time”. The submission is inconsistent with the significant distress Ms Hollis reported to Dr Himmelhoch on 23 September 2013, and the contemporaneous reduction in her work capacity. It also does not pay due regard to her complaints that she felt vulnerable, alone and victimised. In the totality of those circumstances, the aggravation of Ms Hollis’ depressive condition following the reduction in her employment role, and the initiation of the code of conduct investigation, was a result of administrative action and was not within the concept of “injury” for the purposes of SRC Act 5A(1). After that time, Ms Hollis’ ongoing depressive ailment was the result of a combination of events, and principally the matters to which I have referred as RAA 3, 4 and 5.
RAA 6
Ms Hollis’ evidence was that she was shocked by the decision to terminate her employment, and that she “could not believe that I was being terminated for voicing my concerns about unethical behaviour”. She reported to Dr Himmelhoch feeling perplexed, struggling emotionally and by early January 2014 she ceased work and went on sick leave. In those circumstances, the proper conclusion is that after about 24 December 2013, when she had received notice of the termination of her employment, Ms Hollis’ ongoing depressive ailment had acquired that termination decision, which plainly was administrative action, as another operative cause of her resultant depressive condition.
CONCLUSION
Ms Hollis suffered the aggravation of an ailment in about September 2012 to which her employment made a significant contribution. That aggravation constituted an injury for the purposes of SRC Act ss 5A, 5B, 14 and 16. The date of that injury, for the purposes of SRC Act s 7(4) was 11 September 2012.
That conclusion means that the decision under review must be set aside, and Ms Hollis’ October 2013 claim must be remitted to Comcare, for determination in accordance with these reasons.
Ms Hollis’ submissions sought an order for costs under SRC Act s 67(8), in the event that the decision under review was set aside. However neither those submissions, nor those of Comcare, addressed the possibility of an outcome where the decision under review was set aside, but only in relation to one aspect of the injury on which the claim had been based, and where Comcare had substantially succeeded in relation to the matters raised in the review proceedings. In those circumstances I will defer making any order in relation to the costs of the proceedings until the parties have had an opportunity to consider these reasons and the review decision. If the matter of costs cannot be resolved by agreement between the parties, they should agree on a timetable for further submissions, and request the Tribunal to make appropriate directions consistent with that agreed timetable.
I certify that the preceding 173 (one hundred and seventy three) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
..............................[sgd]..........................................
Associate
Date: 24 January 2017
Date(s) of hearing: 7-11 December 2015 Date final submissions received: 21 December 2016 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: CommComp Law Counsel for the Respondent: Mr M Snell Solicitors for the Respondent: Lehmann Snell Lawyers
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