Horton and Australian Capital Territory (Compensation)

Horton and Australian Capital Territory (Compensation) [2019] AATA 953 (10 May 2019)
Division:                  GENERAL DIVISION
File Number(s):      2016/6392; 2017/0719; and 2017/3188
Re:James Horton
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:10 May 2019
Place:Canberra

The reviewable decision dated 7 October 2016 is set aside, and in substitution the Tribunal decides that Mr Horton is entitled to compensation pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) with respect to the 22 determinations made between 23 March 2015 and 31 August 2016 to which that reviewable decision related.
The reviewable decisions dated 1 February 2017 and 26 May 2017 are set aside, and instead the Tribunal finds that Mr Horton is entitled to compensation pursuant to s 14 of the Act for major depressive disorder and adjustment disorder with anxiety, with a date of injury of 16 February 2015.
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Deputy President Gary Humphries AO
Catchwords
COMPENSATION – aggravation of adjustment reaction with mixed emotional features – whether ailment excluded by operation of reasonable administrative action exception – exception not established – decision set aside and substituted
PRACTICE AND PROCEDURE – where Comcare made a reconsideration of own motion decision revoking 22 previous determinations – where Mr Horton suffers from a primary condition and aggravation of that earlier condition – whether both of Mr Horton’s conditions are the subject of Comcare’s reconsideration decision – scope of Tribunal’s jurisdiction – finding that Tribunal’s jurisdiction limited to later condition
Legislation
Public Sector Management Act 1994 (ACT) s 9
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16, 19
Cases
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) (2013) 302 ALR 608
Commonwealth Bank v Reeve (2012) 199 FCR 463
Drenth v Comcare [2012] FCAFC 86
Long v Comcare [2016] FCA 737
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Prain v Comcare [2017] FCAFC 143
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Deputy President Gary Humphries AO
10 May 2019
INTRODUCTION

Mr James Horton was employed by the office of the ACT Director of Public Prosecutions (the DPP) from May 1997. In 2014 he lodged a claim for workers compensation for anxiety and depression that resulted from bullying in the workplace and another in 2016.[1]
[1] In this decision, italicised text is generally used to indicate direct quotations.
Three decisions of Comcare delegates relating to those claims came before the Tribunal for merits review in these proceedings. Ultimately, it was conceded that Mr Horton had suffered psychological conditions arising from his employment with the DPP, but Comcare argued that the conditions were not compensable as they arose from reasonable administrative action within the exclusion in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (the Act.
CLAIMS HISTORY
As the history of Mr Horton’s claims for compensation is somewhat complex, it is necessary to set out that history in a little detail.
Mr Horton lodged a claim for workers compensation on 14 July 2014 for anxiety and depression that resulted from bullying in the workplace. He was employed by the DPP as an Assistant Paralegal Manager (ASO 5) at the time of the claim. In a statement accompanying the claim Mr Horton described three incidents said to have contributed to the onset of his condition:
(a)In December 2011, he was informed that he had received an overpayment due to not being entitled to a higher retention point pay level. This gave rise to an overpayment of $9,955.74. He reviewed his personnel file and obtained documents in August 2013 that established the overpayment was an error and his retention point was reinstated;
(b)In 2012, Mr Horton was removed from the Court Listing Officer role on the grounds that the role was being abolished. He claimed that a co-worker then acted in higher duties in a role with identical functions; and
(c)In 2014, he was offered the opportunity to act in higher duties in the Paralegal Manager position for 3 months. The offer was then withdrawn on the grounds that he had not provided an acknowledgement of acceptance of the role.
Comcare separated the claim into two separate claims. The delegate considered that the claimed events constituted two injuries, sustained in 2011/2012 and 2014 respectively. On 3 October 2014, Comcare denied liability for compensation under s 14 of the Act in respect of injuries arising out of the incidents in 2011/2012. The delegate considered that whilst Mr Horton suffered from an ailment significantly contributed to by his employment, the claim was excluded by virtue of the reasonable administrative action exclusion, namely, the process to review and re-define your specific role description.
In a determination dated 14 November 2014, Comcare accepted Mr Horton’s claim for workers compensation for adjustment reaction with mixed emotional features with a date of injury of 14 May 2014.
Comcare accepted liability for compensation for medical expenses under s 16 in relation to this accepted condition. Determinations of liability were made on the following dates: 23 March 2015, 17 April 2015, 4 and 16 June 2015, 25 August 2015, 28 October 2015, 13 January 2016 (x2), 18 March 2016 (x2), 31 March 2016, 18 April 2016, 10 June 2016 and 26 August 2016.
Comcare also accepted liability for incapacity payments under s 19 in relation to the accepted condition. Determinations of liability were made on the following dates: 10 June 2015, 24 June 2015, 4 September 2015, 9 December 2015 (x2), 11 May 2016, 22 June 2016 and 31 August 2016.
However, in a determination dated 7 October 2016 Comcare conducted a reconsideration of own motion under s 62(1) of the Act in relation to the determinations specified in the two preceding paragraphs. Comcare found that the determinations were no longer correct and revoked them due to an error of fact. The delegate considered that a new set of circumstances, from February 2015, caused an aggravation of Mr Horton’s condition that resulted in a total incapacity to work, and that those new circumstances did not give rise to compensation.
On 21 October 2016 Comcare advised him that, as a result of the reconsideration of own motion, an overpayment of $112,856.94 had occurred.
On the same day Mr Horton lodged a claim for workers compensation for adjustment reaction with mixed emotional features, aggravation of existing condition. He claimed that the injury was sustained as the result of a meeting regarding an internal inquiry into complaints he made against a fellow DPP employee, Ms Leeanne Hollow. That meeting took place on 16 February 2015. Mr Horton stated:
I had an extreme psychological episode, the level of which I had not experienced before in my life. My whole body became tense and I could not think or concentrate. I became overwhelmed with anxiety, then rage. I left the workplace. I became overcome by incredible sadness and hopelessness and had suicidal thoughts.
On 23 November 2016, Mr Horton lodged with the Tribunal an application for merits review of the decision dated 7 October 2016. This was the decision revoking Comcare’s liability under 22 determinations made between 23 March 2015 and 31 August 2016. This is the reviewable decision in proceeding 2016/6392.
In a determination dated 15 December 2016, Comcare denied Mr Horton’s claim for aggravation of adjustment reaction with mixed emotional features dated 21 October 2016, the condition said to have arisen following the meeting on 16 February 2016. The delegate was not satisfied that Mr Horton suffered from an ailment as defined in the Act. On 5 January 2017, Mr Horton requested an internal review of the 15 December 2016 determination. Comcare affirmed the determination of 15 December 2016 on 1 February 2017, however, for different reasons. The review officer did not consider that Mr Horton suffered from a condition different to that accepted on 14 November 2014.
On 4 February 2017, Mr Horton lodged with the Tribunal an application for merits review of the decision dated 1 February 2017. This was the decision which denied liability for aggravation of adjustment reaction with mixed emotional features, the condition said to have arisen following the meeting on 16 February 2016. It is this decision which is the reviewable decision in proceeding 2017/0719.
In a determination dated 26 May 2017, Comcare conducted a reconsideration of own motion under s 62(1) of the Act in relation to the determination dated 15 December 2016. Its delegate considered that Mr Horton ceased to engage in work from February 2015 due to anger and maladaptive responses. The delegate also considered that if an aggravation of his condition was established, the s 5A exclusion in the Act applied and the condition was not compensable.
On 30 May 2017, Mr Horton lodged with the Tribunal an application for merits review of the decision dated 26 May 2017. This is the decision which is the subject of proceeding 2017/3188. The reviewable decision is essentially the same as the reviewable decision in proceeding 2017/0719, except that it is given for different reasons.
The Tribunal notes that Comcare was the Respondent in this matter at the time of the hearing on 19-21 February 2019; however from 1 March 2019, the Australian Capital Territory became the Respondent due to the ACT Government’s transition to obtain a self-insurance licence under Part VIII of the Act. Comcare is referred to throughout this decision, in its role as the Respondent during the hearing, though the decision is now to be effected by the Australian Capital Territory.
EVIDENCE
Mr Horton was employed in the office of the DPP (the Office) from 1997 (on a full-time basis), initially as an Administrative Services Officer Grade 2 (ASO2) and then as a Court Listing Officer (CLO) at the ASO5 level from February 2005.
In September 2010, following the implementation of a new Case Management System, a workplace restructuring took place within the Office. In the course of that restructuring it was recommended that the CLO position be classified as an ASO5 position. Mr Horton and the Office negotiated an agreement on his revised duty statement in November 2011, in which his position was now designated as Assistant Paralegal Manager, reporting to the Paralegal Manager, Ms Susan Little.
Ms Hollow started at the Office in 2008. In the witness box Mr Horton described her style of management as confrontational, reactionary. When the issue of an alleged overpayment due to not being entitled to a higher retention point pay level arose in 2011, he said that his relationship with Ms Hollow was strained. He took some leave from the Office at this time. When he returned from leave in December 2011 he was told that he had been overpaid, and was required to repay approximately $10,000. Eventually, after about 18 months, the overpayment issue was resolved in his favour, but not before he had had his ongoing salary reduced.
While the overpayment issue was ongoing, Mr Horton asked Ms Hollow to review his personnel file. He also reviewed it himself. He told the Tribunal that he took copies of a number of documents from the file and then showed them to Ms Hollow. Shortly afterwards, it was conceded that he had not been overpaid and the issue was resolved.
Mr Horton gave evidence that, in 2012, while he was on secondment outside the Office, another employee was given the role that he had previously occupied as CLO, at the ASO 5 level, a position he believed had been designated as no longer required.
A new, non-legal position of Allocations Manager, classified at a SOG C level, was created in 2013. This position was initially filled on a temporary basis for a period of 6 months. Mr Horton applied for this position, but Ms Little was the successful candidate. With her elevation to this role, it became necessary to backfill the role of Paralegal Manager for the first half of 2014.
In January 2014, Ms Hollow was Mr Horton’s supervisor. He told the Tribunal that an agreement was struck at about this time between himself, Ms Hollow and another employee, Ms Eleanor Hoskins, so that both he and Ms Hoskins would act in the Paralegal Manager position for a period of 3 months each, beginning with Ms Hoskins. The manner in which this arrangement for Mr Horton to act in the Paralegal Manager role was conducted was a seminal issue in these proceedings.
His evidence was that at the meeting between Ms Hollow and himself he was offered the three month stint in the role, and he accepted the offer. It was put to him in cross-examination that he was upset at the time about not being appointed the Allocations Manager, and told Ms Hollow that he wasn’t interested in backfilling as Paralegal Manager. He agreed that he may have been a bit upset at the time, but denied that he had indicated a lack of interest in the role.
A witness statement of Ms Hollow[2] dated March 2018 was tendered. Her version of the offer to act as Paralegal Manager was as follows:
I spoke with both the Applicant and Ms Hoskins in relation to the acting opportunity. Ms Hoskins was immediately enthusiastic and accepted the opportunity instantly. The Applicant did not provide a positive response. He said something along the lines of “well I wasn’t good enough for the Allocations Manager” and “I don’t know, I’ll have to think about it”. The Applicant made a comment that the Allocations Manager role was his old job, “and this is rubbish”. I told the Applicant again (we had had a similar discussion many times before) that the Allocations Manager role was not his old position. I then asked him to come back to me and let me know if he was interested in taking up the higher duties opportunity, and advised him that Ms Hoskins would be undertaking the role for the first three months. He then left my office.
I advised the Director after these discussions that Ms Hoskins would undertake the acting role for the first three months, and we would revisit when the Applicant got back to me about whether he wanted to accept the opportunity.
[2] At the time of the statement Ms Hollow now called herself Emma Flukes.
She later added that As the applicant had not got back to me in relation to the acting opportunity it was decided that Ms Hoskins would continue to act in the role.
Ms Hoskins performed in the acting Paralegal Manager role first; Mr Horton expected to succeed to the role subsequently. In May 2014 he discovered that Ms Hollow had decided he would not share the Paralegal Manager role. At that time he spoke to Ms Hoskins about the role, but she informed him that she was not to talk about it and that he should speak to Ms Hollow. He then spoke to Ms Hollow, who advised him that, as he hadn’t got back to her in time, the offer to act in the Paralegal Manager role had lapsed. The conversation with Ms Hollow was emotional.
He said that at no time was any indication given to him that he was expected to signify his willingness to take up the role. He indicated that there were many opportunities when he and Ms Hollow would meet (for example, outside the building while they both smoked) but at no time did she inform him that she was waiting for a response to her offer.
He then sought the assistance of a psychologist through the Employee Assistance Program, and had some time off work. He said he was suffering from anxiety and depression.
At about this time Mr Shane Drumgold, then a senior prosecutor at the Office, was the Community and Public Sector Union (CPSU) representative in the Office. Mr Horton said he raised some issues with him in this capacity, including a proposed requirement that workers in certain positions would need to upskill in order to retain those positions. Mr Horton felt this would affect him adversely.
On 9 July 2014 Mr Horton submitted a written complaint and workers compensation documentation to Mr Jon White SC, the then DPP, in relation to workplace bullying by Ms Hollow. The complaint was based, it seems, on s 9 of the Public Sector Management Act 1994 (ACT), which requires that a public servant must not, in connection with their job, bully, harass or intimidate anyone.
The essence of the complaint was the same three matters on which he had based his claim for workers compensation on 14 July 2014. He took his complaint personally to Mr White, in the company of Ms Hoskins, who was then his supervisor. On 17 July he was notified by Mr White that the complaint had been referred to Shared Services for a preliminary assessment under the relevant Enterprise Agreement 2013-2017 and Mr Mick Thornberry was the appointed investigator. The Enterprise Agreement provides, at H1.4, that procedures for managing workplace behaviours and values must be applied in accordance with the principles of natural justice and procedural fairness. On 25 July 2014 Mr Horton attended a meeting with Mr Thornberry and provided a statement; he was told witnesses identified would be interviewed; Mr Horton by email nominated Mr Shane Drumgold as a witness.
Shared Services then investigated the complaints. As part of this process, a number of staff of the Office provided witness statements, including Ms Little and Ms Hoskins.
As at November 2014, Mr Horton was taking some time off due to his psychological injury (adjustment reaction with mixed emotional features) which had been accepted by Comcare that month. He was taking medication and receiving counselling.
In a report dated 20 November 2014, apparently prepared by Moira Johnson of Shared Services for submission to Mr White, three complaints made by Mr Horton were reviewed. As already indicated, the complaints related to the alleged overpayment to Mr Horton in December 2011, Mr Horton being removed from the CLO role in February 2012 and issues related to the acting Paralegal Manager role in 2014. The report found:
(a)In relation to the alleged overpayment:
…from the preliminary evidence gathered, and assessed in isolation to any other event, it appears that there may have been an error made by Ms Hollow in relation to the cessation of Mr Horton’s ASO 5.4 retention point payment. It is considered that an internal review into Ms Hollow’s decision be conducted to identify the justification of that decision…
(b)In relation to the CLO position:
… in the absence of a formal investigation, it is yet to be determined if Ms Hollow intentionally or recklessly misled Mr Horton when making an agreement such as the ‘verbal’ agreement described by Mr Horton when she offered him the 2IC Paralegal position and in stating that the ASO 5 Court Listing Officer position no longer existed. It is also unclear why Ms Hollow approved Ms Ng to perform higher duties in a role that no longer existed during the period Mr Horton was on temporary transfer.
From the preliminary evidence gathered, in isolation to any other event, it is considered that an internal review be conducted to identify the decision making process of Ms Hollow in regards to abolishing the Court Listing Officer position in February 2012 and approving Ms Ng to perform higher duties in that position in March 2013, where Ms Ng performed ‘very similar’ duties to that of the Court Listing Officer position…
(c)In relation to the Acting Paralegal Manager position:
It is evident that Ms Hoskins was awarded the Paralegal manager position as a result of a recruitment process in September 2014. It is yet to be determined that, if Ms Hollow did offer Mr Horton an opportunity to share the opportunity of acting in the position of Paralegal Manager, over the six month period, why she did not allow this to occur. Further, it is unclear what information Mr Horton had to “get back to her in time” with.
From the preliminary evidence gathered, it appears that Ms Hollow may have failed to comply with part C7.9 of the Enterprise Agreement and may have failed to afford Mr Horton equal opportunity to secure promotion and advancement in his employment on the basis of relative merit in accordance with s 8(b) of the PSM Act. Ms Hollow’s decision may also be considered as failing in her obligations under s 9 PSM Act, specifically (b) act impartially.
(d)The report went on to state:
When each incident is viewed in isolation, Ms Hollow’s decision may be considered erroneous or flawed. However, when all three incidents are viewed together, a reasonable person may draw the conclusion that Ms Hollow’s decision and subsequent actions may be considered to have been made in an attempt to unfairly affect Mr Horton.
(e)The report providing the following recommendations:
i.An Internal Review be conducted into Ms Hollow’s decision to reduce Mr Horton’s pay from ASO 5.4 to ASO 5.3 in November 2011;
ii.An Internal review be conducted into Ms Hollow’s decision to abolish the ASO 5 Court Listing Officer position in February 2012, but then to approve Ms Ng to perform higher duties in the same ASO 5 position doing very similar duties to the Court Listing Officer position in March 2013, when the position was abolished by Ms Hollow in February 2012 and the duties relinquished by Mr Horton following agreement between Mr Horton and Ms Hollow; and
iii.A formal investigation into why Ms Hollow made a commitment to provide Mr Horton the opportunity to perform higher duties and later denied Mr Horton that opportunity. In doing so Ms Hollow may have failed to comply with the ACT Government, RED Framework definition of equity, and may have failed to comply with her obligations under s 9 of the PSM Act, including, but not limited to (b) act impartially.

A later version of this report, dated 5 January 2015, was also tendered. It restated the essential findings of fact of the early report and expressed conclusions in similar, if more muted, terms. It omitted the reference in the earlier report to a reasonable person being able to draw the conclusion that Ms Hollow’s actions may be considered to have been made in attempts to unfairly affect Mr Horton. Instead, its penultimate paragraph read:
On the information available, when each incident is viewed in isolation, the investigator is not satisfied that there is sufficient evidence to support Mr Horton’s contention that Ms Hollow’s deliberately acted in a way to bully or harass him.
On 12 January 2015 Mr Drumgold was appointed internal investigator under the ACT Government’s Administrative and Related Classifications Enterprise Agreement 2013-2017. His brief, apparently, was to investigate whether Ms Hollow had engaged in targeted or malicious conduct towards Mr Horton in the workplace. Mr Horton was unaware of this appointment. He gave evidence that by this time he had heard nothing further in relation to the complaint he made in July 2014.
On 2 February 2015 Mr Horton emailed Mr White requesting the reports, findings and recommendations of the preliminary assessment conducted by Shared Services. Mr White responded on 5 February that Due to delays out of control of the office, the investigation of this matter is still not complete, although it is now nearing completion. It is not appropriate to release any of the material from the preliminary assessment, however, as soon as a determination has been made I will advise you.
Mr Drumgold provided the results of the internal review to Mr White in a memo dated 9 February 2015. Mr Drumgold described the review as addressing recommendations of Moira Johnson. He then reported that following a relatively extensive and detailed enquiry I have found no evidence to support targeted or malicious conduct directed towards Mr Horton.
In relation to Mr Horton’s complaint regarding the acting position in early 2014 Mr Drumgold considered:
According to Ms Hollows [sic], an offer of 3 months acting was made to Mr Horton, and he was ambivalent, simply stating that he would consider the offer, at the same time expressing displeasure at being unsuccessful for the SOG C Allocations Officer position. When he failed to respond to Ms Hollows within a reasonable time, she in turn extended Ms Hoskins acting.
An anomaly appears to have occurred, in that the SOG C Paralegal Manger position should have been advertised for a vacancy exceeding 6 months pursuant to part C7.9, and this was not done. Ms Hollows has acknowledged as much in her response and notes the error.
This aside, I have found no evidence to support conduct that was in any way targeted or malicious towards Mr Horton.
Early in February 2015 Mr White requested a meeting with Mr Horton on a particular day. Mr Horton declined to attend, citing the lack of availability of a CPSU representative. Mr White emailed Mr Horton on 11 February 2015 that it is unnecessary and inappropriate for a member of the union to attend. Mr Horton responded on 16 February 2015, citing the terms of the Certified Agreement regarding the appointment of a support person where there was a dispute at work. Mr White by email acceded to the request.
On 16 February 2015, a meeting was held between Mr Horton and Mr White, Ms Margaret Jones (DPP Deputy Director) and Alex Johnson (CPSU representative, via phone) to advise Mr Horton of the outcome of the Drumgold inquiry. He was given a document, and told by Mr White that his claims had not been substantiated. Mr Horton told the Tribunal that he learned for the first time at this meeting that the investigation had been conducted by Mr Drumgold. He said that, had he known Mr Drumgold was to perform this role, he would have raised an objection as there would be a conflict [of interest] for him to play this role. Mr Horton agreed in cross-examination that there was nothing objectionable about the way the meeting on 16 February 2015 was conducted.
On 17 February 2015, Mr Jon White emailed Mr Horton notes from the 16 February 2015 meeting. The notes of the meeting included the following:
Mr Horton then asked about the evidence gathering process. Was there a meeting with the investigator? Mr White replied that there were a number of meetings and other correspondence with the investigators during the evidence gathering exercise. Having received the report from the external investigators, Mr White then commissioned Mr Drumgold to carry out further investigations as not all of the relevant people had been spoken to. When Mr Drumgold gave his report, Mr White had had regard to that report and the initial report in coming to his conclusions.
Mr Horton’s evidence was that he had not attended the Office for work since 16 February 2015, although he was still an employee of the office. He said he went downhill from February 2015. He moved to Queensland in September 2015.
In a letter dated 15 May 2015 Mr Horton expressed his frustrations regarding the investigation procedure and Mr Drumgold’s appointment as investigator, and requested a voluntary redundancy on compassionate grounds. Mr White replied on 18 May 2015, advising that the investigation was conducted in an appropriate manner and in accordance with the requirements of the relevant Enterprise Agreement.
Under cross-examination, Mr Horton was asked what it was that Mr Drumgold might have been able to provide to the investigation if he had been a witness on his (Mr Horton’s) behalf, rather than the investigator. He said that Mr Drumgold could have provided knowledge of the complaints that I made and insight into my involvement in that. Mr Horton also suggested that Mr Drumgold may have been able to ask him questions, giving rise to more information of relevance to the complaints.
In re-examination Mr Horton said that Mr Drumgold had been significantly involved in issues Mr Horton had had with Ms Hollow regarding problems with Mr Horton’s duty statement. He said that on occasions he had complained to Mr Drumgold about the way Ms Hollow treated him.
Mr Drumgold, now himself the ACT DPP, gave evidence at the hearing. He said that, when asked to conduct the investigation into Mr Horton’s allegations against Ms Hollow, he considered whether he could bring an unbiased mind to the investigation, given his relationship with Mr Horton, and concluded that he could (though he later said that the perception of bias that he focused on as part of this exercise was that of bias against Ms Hollow, rather than in favour of Mr Horton). He considered that there were no conflicts of interest involved in the exercise. He considered that he had no relevant personal prior knowledge of the matters that he was being asked to investigate.
He told the Tribunal that he believed he had spoken to those persons he needed to obtain evidence from to discharge this investigation. However, he said he did not recall having seen the report of 20 November 2014 of Ms Johnson of Shared Services. It was not among the papers from which he had refreshed his memory prior to giving evidence.
Under cross-examination he said that he had spoken to Mr Horton at various times about work-related concerns, both in his role as his supervisor and as the Office’s union representative. He also said he was aware of a fractious relationship between Mr Horton and Ms Hollow. He said she had a very abrupt manner, and that he found her quite aggressive and abrasive.
It was put to Mr Drumgold that he had owed a duty to Mr Horton and Ms Hollow, before proceeding with the inquiry, to apprise them of this role so that either of them could raise any issues of conflict of interest of which he may have been unaware or had not adequately considered. He denied this, saying that he had satisfied himself that he could bring an unbiased mind to the inquiry. He was also asked why the inquiry was conducted in secret, such that Mr Horton was unaware Mr Drumgold was involved. Mr Drumgold said that no time was he made aware that Mr Horton had not been informed he was conducting the inquiry. He said that he would have expected that Mr Horton would have been so informed. He said it would be ordinary process for a complainant to know who was investigating the complaint.
Mr Drumgold testified that he proceeded to conduct the inquiry on the basis that he considered the written statements of various Office employees obtained by Shared Services, after which he put Mr Horton’s allegations to Ms Hollow in writing, and then decided whether her written answers warranted further investigation. In fact he determined that no further questioning of any witness was required, and he then produced his report, which ran to about one and a half pages plus attachments.
Mr Drumgold was taken to differing accounts in the statements of Mr Horton, Ms Little and Ms Hollow regarding the way in which the relevant documents on Mr Horton’s personnel file were brought to light. He told the Tribunal he did not consider that it was necessary for the purposes of his inquiry into whether Ms Hollow was motivated by malice to settle on which of the three accounts was more accurate.
He was also taken to differences in the accounts of Mr Horton and Ms Hollow regarding the offer to act in the Paralegal Manager role for three months. Ms Hollow’s statement, responding to Mr Horton’s complaint, gives this account:
I then spoke with James Horton and explained to him the same thing that I had told Eleanor and he made a comment along the lines of well I wasn’t good enough to do the Allocations Manager position (he had been an applicant for the expression of interest for the Allocation Manager short term vacancy) and I don’t know I’ll have to think about it. He was clearly not happy about the other role and his body language was quite passive aggressive. He stated the Allocation Manager position is my old job and this is rubbish. I stated to him that we had had this conversation many times before and I do not agree it is your old position [sic]. I asked him to come back to me and let me know if he intended to take up the Higher Duties opportunity or not, Eleanor would be doing the first three months so come back and let me know at some stage if you wish to take on the role. He left my office in a very sullen mood. I would make the comment that while you can offer High Duties opportunities to staff you cannot force them to take them on.
This contrasts with Mr Horton’s evidence, which was that he accepted the offer of sharing the Paralegal Manager role for three months at the time the offer was made.
Mr Drumgold’s finding in relation to this matter appears to have preferred Ms Hollow’s account, with this conclusion in his report:
According to Ms Hollows [sic], an offer of 3 months acting was made to Mr Horton, and he was ambivalent, simply stating that he would consider the offer, at the same time expressing displeasure at being unsuccessful for the SOG C Allocations Officer position. When he failed to respond to Ms Hollows within a reasonable time, she in turn extended Ms Hoskins acting.
It was put to Mr Drumgold that, to resolve the question before him, he needed to explore the difference in accounts, including by asking Mr Horton to respond to the assertions of Ms Hollow. Mr Drumgold responded I must not have considered it relevant at the time. It was further put to him that determining what happened in that meeting did in fact bear upon the question of whether she was deliberately targeting him or not; he responded Potentially.
Mr White gave evidence at the hearing. He told the Tribunal he had been concerned at the delay in Shared Services producing its report, and disappointed that when it was produced it did not reach firm conclusions. He could not recall whether he had seen both versions of the Shared Services report. When asked about why there were two versions of this report, he said it was possible that one version was submitted as a draft.
Mr White said that he considered Mr Drumgold to have been an appropriately qualified person to undertake the inquiry following Shared Services reports, and that he saw no defects in Mr Drumgold’s report when it was produced.
Mr White agreed under cross-examination that Mr Horton had the right to know who was conducting the investigation into his complaint, but considered that it had been Mr Drumgold’s responsibility to impart that information.
MEDICAL EVIDENCE
Comcare commissioned a report from Dr Benjamin Duke, Consultant Psychiatrist, in relation to Mr Horton. In that report, dated 4 December 2017, Dr Duke offered the following opinions:
(a)Mr Horton’s was suffering from major depressive disorder and adjustment disorder with anxiety (representing a progression from an adjustment disorder with mixed anxiety and depression). Dr Duke stated:
I believe that in 2011 Mr Horton was suffering from an adjustment disorder with anxiety that resolved following the initiation of treatment. I believe that in 2014 he developed an adjustment disorder with mixed anxiety and depression that arose in the context of the removal of opportunity to act at a higher level of duties, but on a background of perceived ongoing bullying and harassment from the HR department over the preceding five years. I believe that this condition has been ongoing since that time with no sustained periods of full resolution of symptoms. I believe that in February 2015 his condition worsened to the point where it is now better considered as a major depressive disorder with a co-morbid adjustment disorder with anxious mood. This condition has been ongoing since that time with minimal improvement despite ongoing treatment. This minimal improvement is due to the ongoing difficulties he has been having with his employer, particularly with regards to accessing the details of the investigation into the allegations of bullying and harassment, as well as more recent difficulties he has been having with Comcare with regards to his claim…
(b)In relation to what contributed to this condition, Dr Duke opined:
I believe that the adjustment disorder with mixed anxiety and depression that developed in mid-2014 was contributed to by the events that had occurred within his employment with the ACT DPP over the preceding years. I believe that the trigger for the onset of clinical significance of this condition was the removal of opportunity to act at higher level.
I do not think that this condition ever fully resolved, as indicated by the ongoing struggles he was having between July 2014 and February 2015 (reflected by the problems with consistent attendance as a result of the impact of ongoing emotional symptoms).
I believe that the events of February 2015 aggravated his condition, and resulted in a worsening of his depressive symptoms to the point where I believe his diagnosis needs the revision outlined above.
I think that since that time ongoing difficulties in accessing information about the investigation into bullying and harassment has perpetuated his condition, particularly given that Mr Horton has felt that this investigation was not appropriately carried out and that its findings were not reflective of the actual circumstances he has been through…
I do not believe that there is any pre-existing or underlying condition…
(c)As to whether Mr Horton was suffering from a psychiatric condition prior to any workplace contribution, Dr Duke stated:
I believe that Mr Horton suffered from an adjustment disorder with anxiety in 2011. I believe that he had previously had problems with alcohol misuse (as evidence by the incident in 2001 where he attended the workplace intoxicated). I do not believe that either of these conditions were ongoing in 2014…
(d)In relation to what specific events contributed to Mr Horton’s condition, Dr Duke found:
I believe that Mr Horton’s perception of sustained bullying and harassment by the HR department within the Office of Public Prosecutions created a vulnerability to developing a psychiatric condition. I believe that the events of May 2014, where the HR department informed him that the previously offered opportunity to act at higher duties was being rescinded, served as a trigger for him to become clinically depressed and anxious to the point where he was diagnosed with an adjustment disorder with mixed anxiety and depression.
I believe that the ongoing investigation that was initiated after he submitted complaints of bullying and harassment contributed to the ongoing nature of his adjustment disorder, and the way in which the findings of these investigations were presented to him resulted in a worsening of his depressive symptoms to the point that his condition progressed from an adjustment disorder with mixed anxiety and depression to a major depressive disorder with a co-morbid adjustment disorder with anxiety…
(e)Finally, he expressed the opinion that the February 2015 incident aggravated the pre-existing adjustment disorder with mixed anxiety and depression that had developed in May 2014.
Both parties relied on this evidence. The Tribunal is similarly persuaded by it. Accordingly, it finds that the appropriate diagnosis of Mr Horton’s condition is major depressive disorder and adjustment disorder with anxiety.
Dr Duke described this condition as a worsening or progression from the originally diagnosed condition of adjustment reaction with mixed emotional features. He considered that the February 2015 incident aggravated the pre-existing adjustment disorder. As such, Mr Horton’s present condition might be described as a separate condition to that which Comcare accepted in November 2014.
ISSUE
There is no issue of causation to be resolved, since the mutually-accepted medical evidence establishes that incidents in the workplace caused, and then aggravated, Mr Horton’s mental illness. The only issue to resolve, therefore, is whether Comcare’s liability for that mental illness is excluded by operation of the exemption in s 5A of the Act, that is, did the incidents which injured him constitute reasonable administrative action taken in a reasonable manner in respect of his employment?
LEGISLATION
Liability for compensation to injured workers is established through s 14 of the Act. The section provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A defines injury. It provides:
Definition of injury
(1) In this Act:
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)   a reasonable appraisal of the employee's performance;
(b)   a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c)   a reasonable suspension action in respect of the employee's employment;
(d)   a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e)   anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)    anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

Section 5B disease as follows:
Definition of disease
(1)In this Act:
"disease" means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
Section 16 provides:
Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
In similar fashion, s 19 provides for compensation for incapacity to work resulting from an injury.
CONSIDERATION
The Tribunal’s jurisdiction
The first step in determining the correct or preferable decision in these proceedings is to set out the nature of the issues confronting the Tribunal.
The following essential facts around Mr Horton’s injuries are uncontroversial. He suffered two psychological conditions related to his employment. The first occurred in May 2014, and arose out of the events surrounding Mr Horton being denied the opportunity to act in the Paralegal Manager role (the 2014 condition). The second occurred in February 2015, and arose out of Mr Horton being advised of the outcome of the investigation into his complaint about Ms Hollow (the 2015 condition). This 2015 condition is an aggravation of the 2014 condition; it is, as Dr Duke’s report makes clear, a new condition, not the mere re-emergence or re-expression of the 2014 condition.
There are ostensibly three reviewable decisions before the Tribunal relating to those two conditions. However, the reviewable decisions in 2017/0719 and 2017/3188 amount to the same thing, both being denials of liability under s 14 for the 2015 condition, albeit for different reasons.
While the subject matter of the reviewable decisions in 2017/0719 and 2017/3188 is clear, the same cannot be said of the subject matter of the reviewable decision in 2016/6392. Careful examination of that subject matter is necessary. This reviewable decision was made on 7 October 2016. By this decision (a reconsideration of own motion determination), a Comcare delegate revoked 22 determinations made between 23 March 2015 and 31 August 2016 which had accepted liability for compensation under ss 16 and 19 in respect of Mr Horton. The delegate found that his accepted condition, the 2014 condition, had substantially resolved in August 2014. The delegate further found that a new set of circumstances in February 2015 was the cause of Mr Horton’s incapacity for work, not the accepted 2014 condition. This new set of circumstances had created a major worsening of your condition (an aggravation).
Implicit in this decision is that the 22 determinations made between March 2015 and August 2016 related to the new condition – the aggravation – originating in February 2015. Though not explicitly stated, the logic implicit here is that since the determinations related to a new condition for which there had been no acceptance of liability, compensation was not payable. An examination of the 22 determinations confirms that they do indeed relate to the 2015 condition. The earliest of the determinations, dated 23 March 2015, accepted liability under s 16 pursuant to a medical certificate issued by Mr Horton’s GP dated 3 March 2015. It is reasonable to assume that the certificate was in respect of treatment provided at around that time, some two weeks after the meeting of 16 February 2015. Each of the subsequent s 16 determinations relates to treatment provided later than 16 February 2015. Similarly the first determination made pursuant to s 19 relates to periods of incapacity commencing on 17 February 2015. Each of the subsequent s 19 determinations relates to periods subsequent to this.
What the foregoing demonstrates is that each of the 22 determinations revoked by the reviewable decision of 7 October 2016 was a determination made in relation to the 2015 condition, not the 2014 condition. While each of the original determinations was expressed in the determination heading to be made in relation to a condition with a date of injury of 14 May 2014, the effect of the reviewable decision of 7 October 2016 was to re-characterise the determinations – quite appropriately, given the later medical evidence – as relating to the condition arising on 16 February 2015.
However, when Comcare filed its Statement of Facts, Issues and Contentions in April 2018, it modified its position in relation to the 7 October 2016 reconsideration of own motion. It now argued that, pursuant to Telstra Corporation Limited v Hannaford (2006) 151 FCR 253, its original acceptance of liability for the 2014 condition should be rescinded. It argued that the decisions made by the ACT DPP in relation to the offering of higher duties in early 2014 were reasonable administrative action …taken in respect of the Applicant’s employment. In the alternative, it argued that the effects of the 2014 condition had ceased as of 16 February 2015.
However the difficulty with this argument is that, for the reasons outlined above, the reviewable decision of 7 October 2016 does not relate in any way to the 2014 condition. It relates exclusively to the 2015 condition. None of the three reviewable decisions before the Tribunal in these proceedings relates to the 2014 condition. It follows from this that the Tribunal has no jurisdiction to consider the 2014 condition. Indeed, it appears that no decision relating to the 2014 condition has been reconsidered pursuant to Part VI of the Act, as it must be before it can be considered for merits review by the Tribunal. Comcare cannot, merely by the authority of a submission made to the Tribunal, establish jurisdiction over an issue which is not before the Tribunal pursuant to a reviewable decision.
Nonetheless, I consider that it would be useful guidance to Comcare, should it wish to reconsider its current liability to Mr Horton for the 2014 condition, as it obviously does, for the Tribunal to express a view as to what the evidence in this hearing establishes in that regard. That evidence strongly points to a conclusion that the events which form the basis for the onset of each of the 2014 and 2015 conditions were work-related actions which significantly contributed to Mr Horton suffering those conditions. Moreover, neither of those work-related actions can be characterised as reasonable administrative action, undertaken reasonably, in respect of Mr Horton’s employment. In making these comments, I emphasise that the Tribunal formally so finds in relation to the 2015 condition; in relation to the 2014 condition, its finding is advisory only. The Tribunal’s reasons follow below.
Before turning to those reasons, some general comments on Mr Horton’s evidence are appropriate. In the Tribunal’s opinion, Mr Horton presented as a truthful witness, although he sometimes appeared to have difficulty understanding the questions being asked. On several occasions his counsel objected to the manner of Comcare’s questioning of him, submitting that, in the context of his (accepted) mental illness, the questions were unfair. The Tribunal allowed most of the questions objected to, but also took into account the possibility that his answers were affected adversely by his condition.
Much of the hearing time was taken up exploring with various witnesses Mr Horton’s allegation that Ms Hollow had deliberately intimidated and victimised him. At the end of the day, however, the Tribunal is not satisfied that this allegation was made out on the evidence, even though there was some evidence tending in that direction. It notes, in particular, that ultimately Ms Hollow was not called to give evidence. In the succeeding paragraphs the Tribunal does level some criticism of Ms Hollow and the way she dealt with Mr Horton, but the evidence that this was the product of animosity or malice on her part toward him is inconclusive.
The 2014 condition
I do not propose to examine the 2014 condition at great length because, as already indicated, I do not consider that the Tribunal has jurisdiction over that condition. For Comcare’s future reference, I nonetheless make the following assessment of the evidence in relation to that condition.
Mr Horton argued that there were at least three incidents which contributed to the onset of the 2014 condition. That contention is supported by Dr Duke’s opinion of 4 December 2017:
I believe that the adjustment disorder with mixed anxiety and depression that developed in mid-2014 was contributed to by the events that had occurred within his employment with the ACT DPP over the preceding years. I believe that the trigger for the onset of clinical significance was the removal of the opportunity to act at higher level.
The evidence in relation to one of those incidents – the acting of a co-worker in the Court Listing Officer role – is inconclusive, and I come to no view about whether it contributed significantly to the onset of his condition. The other two incidents did contribute significantly to the onset of his condition, but neither attracts the exemption in s 5A.
The alleged overpayment December 2011-August 2013
Having heard the evidence relating to the issue of Mr Horton’s supposed overpayment in December 2011 and the events that played out over the following 20 months, there is some difficulty in coming to a conclusive view about what occurred, much less deciding whether what occurred constituted reasonable administrative action. What is clear is that administrative action taken by his employer, in relation to his employment, was at least poorly executed, and certainly could have been the cause of needless distress to him. It appears that Ms Hollow and Mr Horton both examined his personnel file; Ms Hollow’s examination supported her conclusion that he had been overpaid, while Mr Horton’s examination turned up documents which demonstrated conclusively that he had not been overpaid.
The suggestion was made from the bar table that the documents may have been missing from the file when Ms Hollow examined it; it seems to the Tribunal equally plausible that Ms Hollow overlooked the documents or was careless as to the attention she paid to them. That appears to have been the view of Ms Johnson. It is also difficult to understand how a file, in which each page was given a folio number, could have had missing pages without that being obvious. In the considerable period between being told he had been overpaid (requiring the repayment of almost $10,000) and being informed that, in fact, his superiors had been mistaken in this conclusion, the evidence suggests that Mr Horton did experience some distress. Given the amount at stake, that experience would be entirely understandable. In accordance with what I understand to be Dr Duke’s opinion, I consider that this incident significantly contributed to the onset of his mental illness.
If Ms Hollow did overlook the seminal documents on Mr Horton’s personnel file, one would struggle to characterise this as reasonable administrative action. If the seminal documents had indeed been removed from the file, and the file had not been annotated to this effect, thus misleading Ms Hollow, this is still a matter going to the conduct of Mr Horton’s employer with respect to his employment. The mismanagement of the file, in that sense, is itself a matter depriving the handling of this issue of the character of reasonable administrative action. On either interpretation, the simple fact remains that inaccurate information was supplied to Mr Horton, and that error contributed to the onset of his mental illness. On balance, I regard that error as being inconsistent with the notion of reasonable administrative action. If it could be so regarded, it was certainly not action taken in a reasonable manner (s 5A(1)).
Withdrawal of the offer to act as Paralegal Manager
In January 2014, Mr Horton was offered the opportunity to act in higher duties in the Paralegal Manager position for 3 months. Ms Hoskins acted in that role first; Mr Horton expected to succeed to the role subsequently. In May 2014 he discovered that Ms Hollow had decided he would not share the Paralegal Manager role. This was on the basis that he had not got back to her in relation to the opportunity.
It is evident from the report of Dr Duke that this incident significantly contributed to the onset of the 2014 condition. He described it as the trigger for that condition.
There are differing versions of the discussion between Mr Horton and Ms Hollow in January 2014 where the opportunity to act in the role was discussed. Mr Horton’s version is that she advised him that he would be given the opportunity; Ms Hollow’s was that she asked him to confirm that he would be willing to take up the role, but that he did not do so at the meeting. If I assume that the meeting was conducted as Ms Hollow suggested it was, I would consider that the approach she adopted – offering Mr Horton the role but awaiting his confirmation of acceptance – would constitute reasonable administrative action. However, I consider that what followed does not satisfy the other limb of the exemption in s 5A(1), that it constitute administrative action taken in a reasonable manner.
On the balance of probabilities I consider that Mr Horton did leave the meeting in January 2014 believing that he would share the position with Ms Hoskins. But even if the meeting proceeded as postulated by Ms Hollow, the manner of her follow-up to the meeting certainly lacked administrative probity. It is surprising, in the first place, that she did not reduce these arrangements to writing to both Mr Horton and Ms Hoskins. Given the significant implications for both of them (including an increase in pay), setting out the terms and timeframes of the agreements with each would surely have been prudent. What is even more surprising, however, is that Ms Hollow at no stage sought to ask Mr Horton whether he had made a decision about the offer. Her failure to do so in the circumstances borders on the extraordinary. There were apparently many opportunities in any given day where a conversation might have been had on the subject. The pair spent some part of each day, according to Mr Horton, outside smoking together. If Ms Hollow was expecting some communication from Mr Horton about the acting role, one might have expected her to simply ask him what his decision was. Her failure to do so must be seen as giving weight to his contention that there was ill will behind her actions towards him.
Comcare submitted that Mr Horton did not take up opportunities to raise the matter with Ms Hollow. That submission is misconceived since, on Mr Horton’s evidence, he believed the arrangement had been settled (as did Ms Hoskins). From his point of view, no further discussion was necessary.
Liability by Comcare to compensate Mr Horton for the 2014 condition therefore rests on the assessment that the events of May 2014 did significantly contribute to his injury and did not qualify as reasonable administrative action taken in a reasonable manner. This opinion is offered for the guidance of Comcare, should it reconsider its liability for the 2014 condition.
The 2015 condition
As already indicated, I am satisfied that the medical evidence demonstrates that the 2015 condition was significantly contributed to by Mr Horton’s employment, and in particular by the meeting of 16 February 2015. The parties both submitted that the condition was a disease pursuant to s 5A(1). Of course, it is well established that a mental illness, particularly one of sudden onset, may be an injury (other than a disease) pursuant to the subsection, rather than a disease: Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [54]-[62]; Prain v Comcare [2017] FCAFC 143 at [71]-[76]. Partly because doctors were not called to give evidence, the possibility that Mr Horton suffered an injury (other than a disease) was not explored at the hearing. In any case, I consider that nothing turns on the distinction; the 2015 condition clearly arose out of, or in the course of, Mr Horton’s employment (s 5A(1)(b)), and so would be compensable under either heading.
Comcare argued that the disease, though significantly contributed to by employment, was nonetheless not compensable because it was the result of reasonable administrative action pursuant to the exemption in s 5A(1). To avail itself of this argument, Comcare must demonstrate six things:
(a)The relevant action of the employer is administrative in character;
(b)Mr Horton’s disease was significantly contributed to by this administrative action;
(c)This administrative action was reasonable administrative action;
(d)The administrative action was taken in a reasonable manner;
(e)The administrative action was taken in respect of Mr Horton’s employment; and
(f)The administrative action was action without which Mr Horton would not have suffered his disease: see Comcare v Martin [2016] HCA 43.
At the hearing it was not controversial that the meeting of 16 February 2015 was administrative action taken by Mr Horton’s employer. Despite the fact that no medical witnesses were called, it is also tolerably clear from the tendered evidence that the meeting was administrative action without which Mr Horton would not have suffered his mental illness.
Reasonable administrative action taken in a reasonable manner?
The parties were, however, in disagreement as to whether that meeting constituted reasonable administrative action taken in a reasonable manner. Part and parcel of this question is whether the investigation of Mr Drumgold, the outcome of which Mr Horton was apprised at that meeting, was itself reasonable administrative action.
In approaching this task, the Tribunal is reminded of Comcare v Martinez (No 2) (2013) 302 ALR 608, where Robertson J held that administrative action did not become unreasonable merely because alternative reasonable courses of action were available to the employer. His Honour said (at [81]):
The further error of law which the applicant contends is evident in this paragraph goes to the issue of alternatives. In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.
While acknowledging that administrative processes may depart from established procedure or bureaucratic protocols without necessarily becoming unreasonable, departures from the principles of natural justice are more difficult to tolerate. Indeed, Comcare conceded that a material departure from the requisite standards of natural justice and procedural fairness will serve to deprive an action of being one taken in a reasonable manner. It was on this basis that Counsel for Mr Horton made a number of submissions about elements of the Drumgold inquiry which, he said, fell short of meeting those standards.
Those submissions included concerns that Mr Horton was not informed that Mr Drumgold was to conduct the inquiry; that Mr Drumgold had, or may be apprehended to have had, a conflict of interest in conducting the inquiry; that Mr Horton was not given the opportunity to address complaints made about him in Ms Hollow’s written submissions received by Mr Drumgold; and that Mr Drumgold failed to accord procedural fairness to Mr Horton by failing to address with him seminal inconsistencies between his and Ms Hollow’s evidence.

With the exception of the last of these concerns, I am not persuaded that these matters deprive the inquiry of reasonableness in the terms intended by s 5A of the Act. One can observe that some aspects of the inquiry could have been done differently, even better. Mr Drumgold himself conceded that it would have been preferable had Mr Horton known he was conducting the inquiry before the outcome was arrived at. One can only speculate as to whether informing Mr Horton (and presumably Ms Hollow) of his role as investigator might have produced a response from either person which might have led to a different approach by Mr Drumgold to his task. However, relevantly for the present proceedings, Mr Horton was unable to say in the witness box what relevant arguments he would have put against Mr Drumgold’s appointment, or what matters he would have raised with Mr Drumgold to consider as the inquirer had he known that he was conducting it. Comcare submitted, and I accept, that while it would have been preferable for Mr Horton to know who was doing the inquiry, that imperfection led to no practical (or even theoretical) injustice in the circumstances.
Nor am I persuaded that the failure by Mr Drumgold to put to Mr Horton the criticisms of him contained in Ms Hollow’s submission necessarily perpetrated any procedural unfairness. It was open to Mr Drumgold not to place any weight on Ms Hollow’s opinions of Mr Horton if he felt that they were not relevant to any actions that she took in respect of him.
Having said that, the Tribunal is troubled by a number of features of the inquiry. It was short in duration (apparently about two weeks) and took no evidence other than written statements. The body of the report ran to just one and a half pages (compared with 11 and 13 pages for the Shared Services reports). Mr Drumgold appears not to have been aware of the original version of the Shared Services report of Ms Johnson, which contained some serious criticisms of Ms Hollow. Indeed, the scope of the inquiry was narrower than that recommended by either version of Ms Johnson’s report, which in each case had recommended an inquiry into the conduct of Ms Hollow, not merely into the narrower question of whether her conduct was motivated by malice. The former question would have allowed the inquiry to examine such issues as whether Ms Hollow had breached the relevant enterprise agreement and the provisions of the Public Sector Management Act 1994 (ACT).
Mr Drumgold’s assertion that he conducted a relatively extensive and detailed enquiry is somewhat undermined by the fact that his report does not even accurately capture the name of the person he was investigating (it was Hollow, not Hollows).
Even putting these concerns to one side, the procedure used to investigate the third matter (the acting Paralegal Manager role) gives rise to serious misgivings by the Tribunal. At the heart of that matter was the way in which Ms Hollow dealt with the sharing of the acting Paralegal Manager role in early 2014. Mr Horton and Ms Hollow gave sharply different accounts of the conversation whereby the arrangement that had been entered into. Ms Hollow’s position was that Mr Horton was to decide whether he wanted the role, and was to advise her accordingly. Mr Horton’s position was that he had agreed to accept the role, and would merely wait until his turn arose to fill it.
It seems clear that, if Mr Drumgold had accepted Mr Horton’s version of events over Ms Hollow’s, the course of later events – specifically Ms Hollow telling Mr Horton in May that year that he was too late and that the role would be filled now only by Ms Hoskins – would have been suggestive of mala fides on Ms Hollow’s part. Reaching a sound conclusion, therefore, about what occurred in that earlier conversation was crucial to determining the matter with which Mr Drumgold had been charged. Yet he evidently accepted Ms Hollow’s account over Mr Horton’s account, without testing either account through live questioning or further correspondence with the parties. With respect, it does not seem to the Tribunal possible to accept this course of action as consistent with the proper discharge of Mr Drumgold’s task.
The Tribunal is reinforced in this conclusion by the fact that Mr Drumgold had before him a witness statement of Ms Hoskins, in which she reported that Ms Hollow had told her that Mr Horton was to be given the opportunity to act in the Paralegal Manager role. She described in the statement being concerned to learn later that he was not to act in the role, being still under the impression at that stage that Jim was still going to do the last three months. The fact that both Mr Horton and Ms Hoskins were labouring under the impression that it had been decided the role would be shared ought, in the Tribunal’s view, to have sounded alarm bells for Mr Drumgold about the veracity of Ms Hollow’s account. One imagines that the rules of procedural fairness would have impelled him to test the disputed proposition that had been put to him by Ms Hollow.
To have accepted Ms Hollow’s version of events, seemingly uncritically, in the circumstances must be regarded as a compromise of the rules of natural justice in the execution of the inquiry. The issue is not one lying on the periphery of Mr Drumgold’s task; it was an essential matter to resolve to determine the matter before him. Plainly, a different outcome could have resulted had Mr Drumgold, through further inquiry, reached the conclusion that Ms Hollow had indeed told Mr Horton in January 2014 that he would be sharing the acting role with Ms Hoskins.
In any case, the test in s 5A, of course, is not whether the injurious administrative action (the inquiry) led to a flawed or unsupportable outcome. The test is whether the action was reasonable, and carried out in a reasonable manner. As Counsel for Mr Horton pointed out, a breach of the rules of natural justice which fell short of invalidating the outcome of the inquiry might still be considered unreasonable per se.
Based on these concerns, the Tribunal cannot support the view that Mr Drumgold’s inquiry constituted reasonable administrative action carried out reasonably. Consequently, the meeting of 16 February 2015, where the outcome of that inquiry was conveyed to Mr Horton, similarly lacks the quality of reasonable administrative action. The meeting itself was conducted cordially, but the conveying of the inquiry outcome was an essential part of the meeting, and the unreasonableness – as I have found it to be – of that outcome also taints the meeting with that quality.
Administrative action taken in respect of Mr Horton’s employment?
On the basis of the foregoing, the s 5A exemption is not available to Comcare. If, however, I am mistaken in that conclusion, the question to be considered is whether the meeting of 16 February 2015, and the inquiry of which it was the culmination, amounted to administrative action taken in respect of Mr Horton’s employment.
Again, the parties took opposing positions on this question. Mr Horton submitted that the inquiry and the meeting were administrative action in respect of Ms Hollow’s employment, not his. The inquiry was an operational matter related not to Mr Horton’s employment but as a function of that employment; it related more to the efficient operation of the Office as a whole than to Mr Horton’s employment specifically.
In support of this characterisation Mr Horton pointed to the email by Mr White of 11 February 2015, where he advised Mr Horton that it was not appropriate for a union representative to attend the meeting of 16 February. Had it been a meeting about Mr Horton’s employment, it was contended, Mr Horton would certainly have had the right to be represented. The fact that representation was initially discouraged suggested that the meeting was not about Mr Horton’s employment, at least in Mr White’s mind.
In Commonwealth Bank v Reeve (2012) 199 FCR 463 the Full Federal Court considered whether the bank’s actions concerning staffing changes, the publication of poor customer satisfaction results and similar branch-specific actions constituted administrative action in respect of the applicant’s employment. Gray J considered the meaning of the word administrative in s 5A. He contrasted action of an administrative nature from action of an operational quality. At [31] he observed:
The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment.
In similar vein, Rares and Tracey JJ said at [57]:
However, in contrast to a disease that was contributed to by, or an injury or aggravation that arose out of, or in the course of, the employee’s employment, the exclusion in s 5A(1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.
The Full Court found that the s 5A exemption does not encompass actions forming part of the everyday duties or tasks that an employee performs in his or her employment.
In Long v Comcare [2016] FCA 737 Tracey J referred to the judgements in Reeve, before observing at [24]:
Both judgments established that “administrative action”, within the meaning of s 5A, must be employee-specific. It must entail more than the regulation of the normal incidences of a person’s employment. Such action may or may not involve the application or implementation of some particular policy. The “formality” or otherwise of a particular action on the part of the employer is not necessarily a determinative factor.
Comcare drew the Tribunal’s attention to judicial consideration of the phrase in respect of, and expressions closely related thereto. Counsel cited the opinions expressed by the High Court in O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, where Toohey and Gaudron JJ said (at 374) the phrase is of broad import, and McHugh J opined (at 376) that the phrase requires no more than a relationship, whether direct or indirect, between two subject matters.
Comcare contended that Mr Drumgold’s inquiry was, in fact, in respect of both Mr Horton’s and Ms Hollow’s employment, since Mr Horton believed that her conduct (the focus of the inquiry) improperly and adversely affected his employment. It was observed that Mr Horton would not have been able to make a complaint of this kind against Ms Hollow unless he had himself been an employee.
Counsel for Comcare argued that anything which was administrative action, being action in relation to the employee’s employment, which is not part of the ordinary, day-to-day business of the employer’s undertakings, satisfies the definition of action in respect of his employment. The necessary connection is whether the subject matter of the action involves drawing conclusions about matters which have a relevant relationship with an applicant’s employment. In this case, the inquiry into Ms Hollow’s conduct bore the necessary relationship with Mr Horton’s own employment.
In Drenth v Comcare [2012] FCAFC 86 the Full Federal Court determined that a direction to Ms Drenth by her employer that she should not return to work after an illness was administrative action in respect of her employment. It found that such a direction:
…is quintessentially an action that is directed specifically to the employee. Such a decision does not affect him or her because it is some feature of his or her workplace or environment or is otherwise connected to the employee’s employment. Rather it is a decision about the employment relationship itself. (at [22])
Similarly, in Comcare v Drinkwater [2018] FCAFC 62 the Full Federal Court considered that an email informing the applicant that he was being transferred to another position within the Customs Service was not administrative action about the nature of his duties as an employee, but was action in respect of his employment per se. It took his employment, quoting the language of Rares and Tracey JJ in Reeve at [60], as a factum.
Against these authorities, the administrative action which injured Mr Horton is not easily classified. Clearly the Drumgold inquiry bore a relationship with Mr Horton’s employment (O’Grady at 376), but the Federal Court decisions make it clear that a mere relationship is not sufficient. That relationship will be established where the administrative action is focused directly on the conduct or performance of an employee. However, the inquiry in the present proceedings does not fall within the kind of actions specifically directed toward or focused upon an employee of which Drenth or Drinkwater are examples. Nor does it fall within the ambit of the examples of administrative action given in subsection (2) of s 5A, noting, of course, that this list is not intended to be exhaustive.
Nor, it must be said, does it fall squarely within the ambit of operational action in the workplace of the kind described by Gray J in Reeve. The inquiry was more than an operational activity at the Office in which Mr Horton had an interest; his connection was somewhat more direct than that. In truth, this situation falls somewhere between those encountered in Drenth and Drinkwater, on the one hand, and Reeve on the other.
It would be dangerous to be dogmatic in these circumstances, but, on balance, I consider that the Drumgold inquiry was not undertaken in respect of Mr Horton’s employment. It seems to me that an employee may have a very close or personal interest in an operational activity at their place of employment without that activity constituting something about them or their employment. If it were imagined, for example, that the Drumgold inquiry had been undertaken into Ms Hollow’s conduct as the result of complaints by employees other than Mr Horton, the outcome might well have been as injurious to him, but would be clearly not an inquiry in respect of his employment.
CONCLUSION
Since the s 5A exclusion is not made out, the decisions under review – all of which relate to the 2015 condition – must be set aside.
The reviewable decision dated 7 October 2016 is set aside, and in substitution decides that Mr Horton is entitled to compensation pursuant to ss 16 and 19 of the Act with respect to the 22 determinations made between 23 March 2015 and 31 August 2016 to which that reviewable decision related.
The reviewable decisions dated 1 February 2017 and 26 May 2017 are set aside, and instead the Tribunal finds that Mr Horton is entitled to compensation pursuant to s 14 of the Act for major depressive disorder and adjustment disorder with anxiety, with a date of injury of 16 February 2015.
Pursuant to s 67(8) of the Act, the Tribunal orders that Mr Horton’s costs be paid by the Australian Capital Territory.

I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO

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Associate
Dated: 10 May 2019

Date(s) of hearing: 19-21 February 2019

Date final submissions received: 21 February 2019

Counsel for the Applicant: Mr Steven Whybrow

Solicitors for the Applicant: Mr David Lander, Lander & Co

Counsel for the Respondent: Mr Michael Snell

Solicitors for the Respondent: Ms Kate Watson, Lehmann Snell Lawyers

[2019] AATA 953

10 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Negligence & Tort

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Causation

Damages

Costs

Date(s) of hearing:	19-21 February 2019
Date final submissions received:	21 February 2019
Counsel for the Applicant:	Mr Steven Whybrow
Solicitors for the Applicant:	Mr David Lander, Lander & Co
Counsel for the Respondent:	Mr Michael Snell
Solicitors for the Respondent:	Ms Kate Watson, Lehmann Snell Lawyers