Levi v Unisure Pty Ltd (University of Adelaide) No. Scgrg-98-1582

LEVI v UNISURE PTY LTD (UNIVERSITY OF ADELAIDE)
[2000] SASC 167

Full Court: Doyle CJ, Mullighan and Bleby JJ

DOYLE CJ I would allow the appeal to this Court, set aside the decision of the Worker’s Compensation Appeal Tribunal of 21 October 1998, and for that decision substitute an order that the appeal to the Tribunal against the decision of the Review Officer be dismissed. I agree with the reasons of Mullighan J for so deciding. There is nothing that I wish to add to those reasons.
MULLIGHAN J This is an appeal from the decision of the Worker’s Compensation Appeal Tribunal allowing an appeal by the respondent, an exempt employer from a determination of a Review Officer that the appellant was entitled to compensation under the Workers Rehabilitation and Compensation Act 1986.
The appellant was, at material times, employed at the University of Adelaide in the Anti Cancer Foundation (“the Foundation”). She claimed to have suffered compensable psychiatric disability due to work-related stress. The claim was made on 21st December 1995 and was rejected by the respondent on 19th March 1996. The appellant sought a review of that determination. It is unnecessary to mention the early history of the proceedings as the application for review, which is relevant to this appeal, was eventually heard by the Review Officer in the latter part of 1997 and her determination was given on 17th December 1997. The respondent is the insurer, for the purposes of the Act, of the University.
It is accepted that the appellant suffered a disability and the issue before the Tribunal, and on this appeal, is whether the appellant had discharged the onus of disproving the matters set out in s 30A of the Act in so far as they related to her. I mention those matters later.
In view of the approach taken by the Deputy President, who constituted the Tribunal, in rejecting evidence which had been accepted by the Review Officer, and in order to understand issues raised on this appeal, it is necessary to set out the factual background and the reasons of both the Review Officer and the Deputy President in some detail.
The appellant is now aged 48 years. The following narration represents, in the main, findings of the Review Officer and some uncontroversial evidence of the appellant. At all relevant times, the appellant was employed under contract as a project officer with the Foundation. She commenced that employment in June 1990 on a two year contract which was renewed in 1992 for three years. The contract was not again renewed when it expired on 30th June 1995. She claimed to have suffered work-related stress throughout the whole of her employment. In January 1994 she reduced her working days from five each week to four. The appellant suffered from myeloproliferative thrombocythemia disorder, a form of cancer involving the bone marrow. It appears from findings of the Review Officer that she suffered some degree of incapacity for work at that time but the cause may not have been work-related stress but the cancer condition which the Tribunal accepted to be the position. It was the appellant’s case that the stresses continued and she has been totally incapacitated since her employment ceased. It was the respondent’s case that any stress was caused by reasonable administrative action taken in a reasonable manner in connection with her employment or in relation to the non-renewal of her contract or both.
The Review Officer heard evidence from the appellant and a witness who lives in a relationship with her and who gave evidence of the complaints the appellant made about her employment and the adverse effect it appears to have on her which she described as tension and anxiety which caused various symptoms. She also heard evidence from three witnesses who were employed by the Foundation, namely Ms Sanders, who was employed as a secretary, Dr Edwards, who was the Executive Director from 1992 to 1994, and Dr Roberts, who was the manager of the Cancer Prevention and Education Unit of the Foundation and who also managed the SA Smoking and Health Project in which the appellant worked. As to these witnesses, the Review Officer made the following findings:
“As to the credibility of the witnesses, I have no doubt that all of them did their best to portray as accurately as they could events as they recalled them. The worker had a particularly comprehensive recollection of her experiences in the workplace, and that is not at all surprising if one accepts, as I do, her account of the impact of those experiences on her. I did not understand Mr Martin to challenge the worker’s evidence in that respect. Dr Roberts’ recollection of some matters was not clear, eg., as to whom she conveyed information about the health reason for the worker’s reduction in working hours, and her perceptions of various events were often quite different to those of the worker’s. The same applies to the evidence of Dr Edwards and Ms Sanders. However, I do not think any of these witnesses was attempting to mislead me.”
In carefully expressed and detailed reasons for her decision, the Review Officer reviewed the evidence and made critical findings. She accepted the evidence of the appellant about the stressful circumstances at work. It is unnecessary to set out all of the evidence. For present purposes a brief summary will suffice.
The appellant claimed that she commenced experiencing difficulties within weeks of starting work. She found the atmosphere in the office tense. She attributed the cause of the problem to the attitude of some other staff in the office, including towards her. She gave evidence of some particular events which she said caused her considerable distress, however, her case was not limited to these matters. In 1992 remarks of a homophobic nature were made at times which were of particular significance to her because of her relationship with her partner. In the same year she felt aggrieved at the conduct of a fellow worker in the context of the selection process for a vacancy for which she had unsuccessfully applied and with irregularities in the selection process which she asserted existed. She helped to arrange a major event in 1992 with respect to a Quit Smoking campaign but felt professionally undermined when Dr Roberts told a staff meeting of a change in arrangements without consulting her. In 1993 she asked Dr Roberts to relieve her of some school survey work she had undertaken in previous years, because of additional media work she had to do, but Dr Roberts responded by cancelling a particular media launch instead of giving the survey work to other staff. The appellant regarded this response as unreasonable, particularly as the survey work could have been done by others and she regarded Dr Roberts as antagonistic and not consultative.
In 1994 when the appellant applied to reduce her working hours to four days a week, she gave Dr Roberts a letter from her general medical practitioner on a confidential basis, in which the medical practitioner described the bone marrow condition. Later she heard another project officer saying that the appellant had reduced her working hours for health reasons and she felt that confidentiality had been breached. In September 1994 the appellant was told by Dr Roberts when she arrived at a breakfast launch of Breast Cancer Awareness Week, and in the presence of others, that she had not been invited. The appellant was distressed as other staff had in fact been invited.
In October 1994 the appellant was informed that Foundation SA would be taking over media buying aspects of the Quit Smoking campaign but there was no suggestion that this change in arrangements would have any impact upon the work of the appellant or her employment. In February 1995 her duties were discussed and clarified for the next three years but in May 1995 she was told that her contract would not be renewed because her position had become redundant. She was instructed to complete outstanding work in three days and take accumulated recreation leave until the end of her contract.
At a team meeting on 28th March 1995, the appellant experienced hostility on the part of Dr Roberts and left in distress. She lodged a grievance letter which she discussed with Dr Roberts and Dr Trinker, the new Executive Director. According to the appellant, Dr Trinker dismissed the grievance as “emotional” and told her to either put the past behind her or have a round table discussion with all of the staff. There was a meeting between the appellant, Dr Roberts and Dr Trinker at which the appellant mentioned an outline of her complaint about Dr Roberts but there was no attempt at mediation or conciliation of the issues raised by her. The appellant did not feel that the grievance was taken seriously or properly resolved.
In a more general context she said that she felt daunted by what she described as the antagonistic and overbearing manner of Dr Roberts towards her. She said Dr Roberts would make derogatory remarks about other staff in their absence and undermine her in the presence of other staff. She said there was tension between her and particular employees, whom she described as withdrawn and hostile towards her. She said there was a “mistrusting” atmosphere in the team in which she worked which was not addressed by Dr Roberts and that she felt victimised and insecure because other workers were being trained in her area of expertise. She became very withdrawn. In 1993 she raised with the Executive Director her concerns about alleged incompetence on the part of management in dealing with staff tension and irregularities in the selection process. According to her, these matters were never resolved. She described the working environment as one of “passive aggression” towards her and said that normal courteous behaviour was not extended to her.
The evidence called by the respondent, although providing explanations for the particular incidents alleged by the appellant to have caused her stress and a different version of events which reflected adversely on the appellant, did confirm that the appellant found herself in an environment which was unpleasant for her and which caused her distress. Dr Edwards, the Executive Director for most of the time the appellant was at the Foundation, gave evidence which was almost entirely adverse to the appellant and in which he rejected her allegations. He attributed fault to her, not to other workers or her supervisors, and he rejected her allegations about homophobic comments. He said that the appellant was subject to “flights of fancy” which he could recognise because he was a physician. He observed that some people can use these sorts of allegations as a way out of, presumably, employment.
Dr Roberts was the immediate supervisor of the appellant. Her evidence was contrary to the evidence of the appellant and, like Dr Edwards, she denied the appellant’s interpretation of various incidents. With respect to not renewing the appellant’s contract, she said in April 1995 it had been decided that the job held by the appellant had to be changed and that a person with psychology qualifications and statistical expertise was required for research and evaluation tasks. She denied that this decision was made because of personal characteristics of the appellant. It was, she said, in effect, an appropriate management decision. Dr Roberts accepted that she may have appeared to be abrupt at times towards the appellant. She denied the allegations of training other staff to do the work of the appellant and of homophobic comments.
In accordance with the practice of the Review Panel, other evidence received was in the form of transcripts of interviews of other employees of the Foundation conducted by a loss assessor. The Review Officer mentioned the statements of two other employees made in those statements. Both of them contradicted the evidence of the appellant and many of her allegations, including as to the atmosphere in the work place and about the approach of, and management style of, Dr Roberts. They were both critical of the style of the appellant which one said was abrupt and displayed anger and the other said was aggressive. Another employee said that the appellant was confrontational and intimidating.
I now mention the medical evidence before the Review Officer. The appellant had consulted Dr Viliunas, a psychiatrist, for about four years prior to commencing employment at the Foundation. Dr Viliunas provided a number of reports which were received by the Review Officer. By the time of writing the reports, she was living and practising in Hamilton, Queensland and was not called to give evidence. She set out, in her first report, the medical and social history of the appellant prior to her commencing work at the Foundation. There are two matters of particular significance. The first is the bone marrow cancer of the appellant. This condition was regarded as serious but appears to have been treated conservatively and had not progressed. The second matter is that the appellant suffered a reaction to the breakdown of her marriage some years prior to commencing work at the Foundation. She had sought counselling and assistance from, I assume, Dr Viliunas, after the breakdown of her marriage and developed anorexia and severe anergia of the fatigue syndrome from which she suffered. However, she did not have any psychiatric illness or personality disorder which could predispose her to “burdened social or work place relations” prior to commencing work at the Foundation. Because of her anergia in an organic context, Dr Viliunas prescribed an alerting antidepressant drug in what she described as a sub-antidepressant dose.
It is appropriate to mention that the appellant had two children and had undertaken tertiary eduction. As a single parent she had experienced some pressures which were heightened by proceedings in the Family Court. Dr Viliunas found no evidence of a major depressive disorder or of a paranoid state. According to Dr Viliunas, the appellant had settled into a new relationship with her present partner and her problems had resolved. Dr Viliunas expressed the opinion that before working at the Foundation, she did not have any psychiatric or personality disorder.
A few weeks after commencing work at the Foundation, the appellant again consulted Dr Viliunas. She sought assistance in managing work-place stress. She told Dr Viliunas of the problems which she was experiencing. Thereafter she consulted her from time to time. This information is set out in the lengthy report of Dr Viliunas of 14th February 1996 and accords with the evidence of the appellant before the Review Officer.
The history given by the appellant to Dr Viliunas as to the conditions at work, apart from the specific matters already mentioned, is as follows. She was committed to her work at the Foundation and was enthusiastic about it. Dr Roberts, she said, was a domineering personality whose style was harassing, controlling and abusive. She experienced difficulties in sharing office accommodation with persons with different standards of office etiquette, which involved loudness and negativity. The atmosphere in the office was tense, suspicious and unco-operative and there was denigratory gossip about absent staff as to their appearance, lifestyle and professional competence. There was a lack of appropriate management procedures to acknowledge staff achievements or resolve problems. There was no culture of professional development. Specific groups were subject to gossip and specific workers to denigration and discrimination, including the appellant. These matters are a brief but incomplete summary of what she told Dr Viliunas and said in evidence but it is sufficient to show that her complaints were not limited to the specific incidents which have previously been mentioned. The effect of what she said is that her working conditions and circumstances were continuously extremely unpleasant and stressful.
In this report Dr Viliunas described the retrenchment of the appellant as a devastating blow. However, she expressed the opinion as to the effect of her employment as follows:
“My opinion as to the effect on Ms Levi is that she has been significantly disadvantaged and injured through having worked in the environment of the [Foundation]. She entered that situation as a multi-talented, skilled, experienced worker. The effect on her was that she was deskilled, demoralised, rendered anxious and fearful, and that she suffered a deterioration in her physical health, including a deterioration of a myeloproliferative disorder.”

She went on to say that the employment at the Foundation was a substantial cause of her stress and because she was familiar with the psychology of the appellant before she commenced that employment, she was:

“... therefore in a rare situation of being able to be somewhat more confident than is usual that this worker’s state of health was not significantly related to other matters, but rather substantially arose from the incapacity occasioned by the stress suffered in the workplace.”

She expressed the opinion that the appellant suffered anxiety and depression caused by inappropriate workplace management practices. In subsequent reports Dr Viliunas described the appellant’s condition and disability at later times. Initially the appellant was unable to work due to generalised anxiety, panic attacks and social phobia with increasing withdrawal and isolation, insomnia, nightmares and exhaustion. Later she undertook computer training at the end of 1995 but although she worked briefly on two occasions, she continued, unsuccessfully, to seek employment and she was demoralised upon not obtaining more work.

Dr Blakemore, also a psychiatrist, saw the appellant at the request of the respondent on one occasion on 23rd August 1997. He also read the first report of Dr Viliunas. He wrote a report on 25th August 1997 in which he set out aspects of the history of the appellant which have been mentioned and, in particular, of her difficulties at work with the Foundation. He said that the appellant had no history of serious ill health and had no history of any emotional illness except as caused by these difficulties. He expressed the opinion that she was suffering an emotional condition which he described as an adjustment reaction with depression. He said that she presented very genuinely and her condition appears to be the result of her work experience at the Foundation as she perceived it, particularly the shock of being made redundant, and her perception of her position in being involved in a worker’s compensation claim. He accepted that she was not fit for employment when he saw her but that she would soon recover upon the finalisation of her claim and then be fit for work.
He also gave evidence before the Review Officer. He acknowledged that the appellant’s condition which he diagnosed was a psychiatric illness. He re‑affirmed his opinion that it was being made redundant which “actually disabled her”. According to him, she was not disabled from work by any other difficulties at work. He went on to say that it was the shock of being made redundant which was the predominant cause of her psychiatric illness.
I have mentioned the findings of the Review Officer as to credibility of the lay witnesses. It is to be noted that the Review Officer not only accepted the evidence of the appellant as to her experiences at work at the Foundation, but also her evidence as to the effect of them upon her. In my view, those findings are of particular importance.
With respect to the medical evidence, the Review Officer found that the appellant did suffer an illness or disorder of the mind which was caused by stress. She also found that her employment at the Foundation was a substantial cause of the appellant’s disability. She rejected the opinion of Dr Blakemore that it was the shock of being made redundant which caused the mental condition of the appellant. She accepted the evidence of Dr Viliunas.

The Review Officer accepted the evidence of the appellant. It is appropriate to mention a particular conclusion of the Review Officer:
“The overall picture painted by the lay evidence is that of interpersonal tension developing gradually between an intense and articulate person highly skilled and experienced in her profession, and an equally articulate but very forthright manager unaware of her ‘silencing effect’ on people with a temperament such as that of the worker. The worker gave a detailed account in what I felt to be a very genuine manner about her work relationships over the 5 years of her contract, and I accept that many situations which she described were perceived by her as constituting unusually unsociable behaviour towards a colleague. Some of these situations are easily explained (eg, in the statements of fellow-workers) as representing differing, but equally genuine, perceptions of the same interactions; others I would regard, even on an objective basis, as reflecting poor relationships. In that regard, the evidence of Ms Sanders and the statement of Ms Morris did little to detract from the worker’s evidence about the lack of social interactions with her in the workplace, and the evidence of Dr Roberts revealed a robust management and interpersonal style which minimises consideration of matters she regards as of little importance, and which led the worker to attribute malicious intent to her.”

The Review Officer went on to say that all that remained to be decided was whether the appellant’s claim was precluded by the provisions of s 30A(b) of the Act. I pause to say that the Review Officer did not make any findings to the effect that Dr Roberts and other staff had in fact behaved in the manner alleged by the appellant except in some respects which relate mainly to style, but she did find that the appellant genuinely perceived that her complaints and allegations were accurate and it is this perception which severely affected her.

It is appropriate at this stage to refer to s 30 and s 30A. S 30(1) provides that, subject to the Act, a disability is compensable if it arises from employment. S 30(2) provides that a disability arises from employment if it arises out of or in the course of employment. “Disability” is defined in s 3 as including any mental injury, including a disease which, in turn, includes a “mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development”. It may be seen that the Review Officer found that the appellant suffered a disability and that it arose from her employment with the Foundation. Those findings are not in contention.
S 30A relates to psychiatric disabilities. It provides:
“30A.. A disability consisting of an illness or disorder of the mind is compensable if and only if:
(a) the employment was a substantial cause of the disability; and
(b) the disability did not arise wholly or predominantly from -
(i).... reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or
(ii)a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with the worker’s employment; or
(iii).. reasonable administrative action taken in a reasonable manner by the employer in connection with the worker’s employment; or
(iv)reasonable action taken in a reasonable manner under this Act affecting the worker.”

As has been seen, the Review Officer decided that the only issue was whether the appellant was precluded from claiming benefits by reason of s 30A(b) which required consideration of what was the predominant cause or causes of the onset of the appellant’s condition.

The Review Officer again considered the evidence of Dr Viliunas and Dr Blakemore and their different opinions and said:
“However, I have before me in both documentary form and in oral evidence, a detailed history from the worker, and some brief corroborative evidence from her partner, regarding symptoms well before the non-renewal of her contract. I found the worker to be a genuine witness whose account of her symptoms can be relied upon for findings of fact in this matter. I also understood Dr Blakemore to have found her a perfectly straightforward historian whose perceptions and complaints of symptoms were genuine. He reached a conclusion that her condition was not so severe, prior to the retrenchment, as to attract a psychiatric diagnosis. In view of the worker’s evidence, as supported by Dr Viliunas in her reports of February and August 1996, and her PMC, I do not feel constrained to accept Dr Blakemore’s opinion on that point. I find that the worker’s illness or disorder of the mind arose prior to the events surrounding her leaving the workplace. Without a chronological account of reported symptoms from Dr Viliunas, who resides in Queensland and was not called to give oral evidence, it is not possible for me to reach a finding as to the precise date of onset of the worker’s disability, but for present purposes I find that it was already present by the time of the redundancy in May 1995.”
Having reached that conclusion, she found that the redundancy was not the predominant stressor causing the disability, although it may have contributed to it once she left the workplace. Consequently she concluded that s 30A(b)(ii) was not a bar to her claims. The Review Officer then went on to consider what were the predominant stressors. She rejected the approach that each incident in the workplace should be considered discretely and assessed as an administrative action. She accepted that the cause of the stress, and therefore the disability, was general tension arising from the appellant’s interactions with other staff, in particular Dr Roberts, and from her perceptions of the motivations of others in various decisions made and actions taken during the whole course of the appellant’s employment with the Foundation. She said:
“Day-to-day interpersonal relationships, in either the workplace or on the domestic front, do not proceed by means of discrete events, some of which produce tension and discord and some of which do not. In a situation where distrust, dislike or even malice is perceived by one party in another, then subsequent interactions are likely to take on heightened meaning for that party, to which the other may be completely oblivious. I think that is what has occurred in Ms Levi’s case. An example of that scenario operating is the March 1995 meeting, which is described in detail in the evidence of the worker, Dr Roberts, David Edwards and Christine Morris, who each perceived the interaction between the worker and Dr Roberts differently. I consider it impossible to separate out particular causative factors, as Mr Martin sought to do, in order to subject them to the disqualifying tests in subsection (b)(i) to (iii).
It is possible, of course, that if none of those events which are clearly characterisable as administrative ‘actions’ or ‘decisions’ (eg, the worker’s failure to get the promotion, the cancelling of the breakfast launch, the removal of her media launch duties) had occurred, then the worker would not have developed a psychiatric condition. On my view of the evidence, however, in particular the evidence of Ms Levi, which I accept, the stress was more likely to have been caused by the tension which began to develop, as she perceived it, between herself and others in the workplace, particularly Dr Roberts, and the events referred to above were merely concrete manifestations, as she perceived it, of the conscious intent to exclude her from the team and ultimately to remove her from the organisation. The organisation may well have done everything it did on reasonable grounds and in a reasonable manner, but I do not consider it necessary for me to engage in that enquiry. I find that the predominant cause of the worker’s disability was her general perception of tension in the workplace, of which she felt she was the victim, and not any particular event or events which are in the nature of the disqualifying factors set out in s 30A(b)(i) to (iii) of the Act. I determine therefore that her claim is accepted.”
The Review Officer then went on to consider the appellant’s entitlements and concluded that her incapacity for work commenced when she left the workplace. The matter is not issue on this appeal.
The respondent appealed successfully to the Tribunal. The Deputy President found that the decision not to renew the contract of the appellant was “the predominant cause” of her disability and that she had failed to negative “one or more of the disqualifying factors” in s 30A(b).
There are many grounds of the appeal to this Court from the decision of the Tribunal. I do not see the need to mention them specifically. They fall into particular groups which I shall mention and they have all been considered.
It is convenient to mention, at this stage, the case of the respondent on appeal before the Tribunal and on this appeal. In short, it was simply that the retrenchment was the predominant cause of the disability and as the retrenchment was an administrative action, the appellant had to discharge the onus under s 30A(b) which she could not do. In the alternative, if the appellant had the disability before the retrenchment, and it caused incapacity, the disability was due to administrative actions which have been mentioned and the appellant could not discharge the onus.
Before considering the reasons for the decision of the Deputy President, I mention that the appellant, and Dr Roberts, both gave evidence before him on that appeal. Near the conclusion of argument on that appeal, the Deputy President said that he wanted to hear the evidence himself relating to what he called the redundancy because, he said, the Review Officer did not make any finding on that matter and that he wanted to hear evidence on “the s30A(b) point”. Of course, the Review Officer did make specific findings about the cause of the disability and the matters set out in s30A(b), but nonetheless, the parties did not oppose the calling of those witnesses.
The Deputy President made findings adverse to the appellant and rejected the opinions of Dr Viliunas. In order to resolve the issues raised about those matters on this appeal, it is necessary to consider both his approach and his conclusions which are the subject of grounds of appeal.
I commence with the grounds of appeal which challenge the decision of the Deputy President overturning the acceptance by the Review Officer of the factual basis of the appellant’s case. I commence by making a brief observation about the role of the Tribunal in proceedings of this nature.
At the time the proceedings for review were commenced, the procedures for dispute resolution in Part 6 and Part 6A of the Act had not yet come into operation. Pursuant to s17(4) of the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995, the proceedings were continued pursuant to the former legislation, which included the now repealed s97, which related to appeals to the Tribunal against a decision by a Review Officer. Such an appeal is an appeal by way of re-hearing on the documents enlarged by the powers of the Tribunal to hear evidence: Simpson Ltd v Arcipreste (1989) 53 SASR 9, Linou v Mason & Anor (1992) 59 SASR 117 and Jorgensen-Hall v Workcover Corporation (unreported 1.12.97, Jd No S6459). It follows that an appellant to the Tribunal carries the onus of satisfying the Tribunal that the decision of the Review Officer is wrong: see Simpson Ltd v Arcipreste per Cox J at p14 and Duggan J at p22. In Keen v Worker’s Rehabilitation and Compensation Corporation (1998) 71 SASR 42, Lander J said at pp48-49:
“I think whilst the appeal to the Tribunal is a rehearing, and I adhere to the opinion I expressed in Jorgensen-Hall v Workcover Corporation (Full Court Doyle CJ, Lander and Bleby JJ, 1 December 1997, No S6459), the Tribunal’s powers given by s 97 do not allow it to be said that it is necessarily bound to accept primary findings of fact made by a Review Officer. In most circumstances it would. But it does have the power to draw its own conclusions of fact from the documents even without hearing further evidence.
It can, in the exercise of its discretion, rehear the whole of the evidence again and indeed hear further evidence. In these circumstances it would not be disadvantaged by not hearing the witnesses itself. Indeed it could enjoy greater advantages than the Review Officer because it might hear further evidence.
Where it does not rehear the evidence or take any further evidence and where the Review Officer has relied on the credibility of witnesses, the Tribunal would ordinarily allow the Review Officer’s findings to stand unless it could be shown that the Review Officer ‘“has failed to use or palpably misused his advantage” or has acted on evidence which was “inconsistent with facts uncontrovertibly established by the evidence” or which was “glaringly improbable”’: see Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.”

Bleby J expressed a similar view when he said at p63:

“In the absence of any oral evidence before the Tribunal, where the findings of fact of the Review Officer are based on the credibility of witnesses, those findings will not be set aside by the Tribunal merely because the Tribunal thinks that the probabilities are against that finding: see Devries v Australian National Railways Commissioner (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ.”

It is with these principles in mind that the Deputy President had to consider the challenge to the findings of the Review Officer.
I turn to the grounds of appeal relating to the Deputy President rejecting the evidence of the appellant. I mention the appellant. The appellant gave evidence limited to the matters indicated by the Deputy President. She was examined and cross-examined by counsel on these matters. Dr Roberts also gave evidence similar to that which she had given to the Review Officer and limited to the same matters.
At the completion of the cross-examination of the appellant, the Deputy President embarked upon lengthy questioning of the appellant on a topic which had not been raised in her evidence. The appellant had seen Dr Viliunas about 140 times between 12th November 1990 and May 1995. Upon questioning by the Deputy President, the appellant said that she had made claims to Medicare with respect to all of the costs of those consultations. She was asked whether she had ticked the box on the Medicare claim form which indicated that the claim was covered by worker’s compensation. In re-examination she said that it did not occur to her to do so because during that period she did not regard herself as being in a worker’s compensation situation because she had not proceeded with any claim. She went on to say, “so I didn’t and I felt that that needed to be a formal thing to be involved in a workers compensation situation”. She had not made any claim. Also, she said that she could not remember precisely the question on the form. No form was shown to her during her evidence.
In his reasons for judgment, the Deputy President made observations adverse to the appellant about this matter. He said that the appellant did not claim from the Foundation the cost of the many consultations with Dr Viliunas as compensation pursuant to the Act but claimed them from Medicare representing that the psychiatric treatment “was non employment related - always answering a specific question on the Medicare claim form to this effect”. He said that this last mentioned matter emerged in evidence before the Tribunal. Also, he said that the appellant had claimed “sick pay” entitlements which, he said, involved a degree of formality. The nature of these payments is not clear. I expect that the Deputy President was referring to payments made to the appellant after she ceased to work at the Foundation and before she received income maintenance under the Act. This matter is irrelevant to any fact in issue and the reference to “a degree of formality” in such a comparison is meaningless.
In my view, there was no basis for these observations. As has been seen, the appellant’s evidence is that she did not regard herself in a worker’s compensation situation. There is no reason for her to have claimed the cost of these consultations from the Foundation. There was no evidence to suggest that when filling out the claim form, she was required to consider whether or not her condition was employment related. Furthermore, in her report of 14th February 1996 which was before the Review Officer and the Tribunal and in which Dr Viliunas set out in detail the history taken from the appellant about her perceived problems at work at the Foundation and her advice about them, she recommended to the appellant that she not make a claim. She wrote in her report:
“I recommended making no claim as to causality at that point, in spite of my then clear opinion that she did indeed suffer a medical injury, both psychological and physical, and that it arose directly in the course of her employment and as a result of its conditions. This was because of her ongoing wish to work for ACF. Many ordinary workplaces have been documented in the literature on whistleblowers as penalising workers who have claimed stress leave; this had proved to be a less generous or supportive work-place than most and other staff had been treated badly on precisely these grounds.”

At no time did the Deputy President reveal to the parties the significance which he apparently placed upon these matters. As it was not apparent, counsel for the parties did not have occasion to address him about the matters. That is not to say that a Tribunal of fact must give an indication in advance of what adverse finding may be made against a party, but in the present case the failure to do so deprived the Deputy President of the benefit of submissions which may have been of assistance to him and which could have enabled him to approach the issue correctly.

Later in his reasons for judgment, the Deputy President returned to the evidence about the Medicare claim forms. Having referred to her evidence as to why she did not regard the matter as a “worker’s compensation situation” because she had not made a claim, he referred to part of the passage in the report of Dr Viliunas to which I have earlier referred and went on to say:
“That is why she represented to Medicare her treatment was non-employment related. She did not say that she knew that she had a claim but she refrained from making the same because of advice given to her by a doctor.”

It seems that the Deputy President regarded this matter as demonstrating that the appellant lacked credibility and that she did not, whilst working, regard her stress as having been caused by employment. I do not think there is any basis for such conclusions. The inferences drawn by the Deputy President from his questioning of the appellant are misconceived. There is no evidence about the contents of any Medicare claim form which she signed. There is no reason to suggest that she should have completed such forms any differently if she did, at the time, regard her illness as work related. There is no reason to suppose that the way in which she completed the forms is, in any way, inconsistent with her evidence on her case.

Another matter about which the Deputy President was in error was his observation, also adverse to the appellant, that although she had been treated by Dr Viliunas since November 1990 for stress caused by employment, at no time did she give notice of this disability to the Foundation until 12th December 1995, notwithstanding that the date of the injury was nominated as 30th June 1995. The date of nomination is not a matter of significance. This observation misstates the effect of the evidence before the Review Officer. The appellant, through her union representative, informed the Foundation in May 1995 of the stress which the appellant had been suffering in her employment. On 6th June 1995 the same union representative wrote to the Manager of the Industrial Relations Section of the University of Adelaide about various matters and in doing so referred to her stress in the work place.

The Deputy President was wrong in these observations and it is likely that they also affected his view of her credibility and that of her case. In my view there was no sound basis for the rejection of the findings of the Review Officer favourable to the appellant and the Deputy President erred in so rejecting them.
The next matter which appears to have influenced the Deputy President adversely to the appellant’s case is the view which he took about Dr Viliunas. He said that the reason for her non-attendance is not clear although he went on to say that she apparently practises substantially in Queensland. It was obvious why Dr Viliunas did not give evidence. She lives and practises in Queensland. Her lengthy and comprehensive reports were admitted into evidence. There was discussion about her giving evidence but it seems that, at an early stage, it was accepted that her reports be received with her being made available for cross-examination. There had not been any request or suggestion that she give evidence. It seems that eventually the respondent did not insist upon her being available for cross-examination apparently on the ground of the high costs involved in her attending before the Review Officer.
The Deputy President went on to say that Dr Viliunas did not keep any notes and so notes were not available for cross-examination of the appellant and, if she had given evidence, for cross-examination of her. In a letter of 4th November 1997 which was before the Review Officer and the Deputy President, Dr Viliunas gave an explanation for not having notes. She wrote that her psychiatric practice is predominantly in psychotherapy and she does not keep notes in that work. In the case of the appellant, she said that when it was known that her condition was deteriorating and a medical report might be required, she sometimes made contemporaneous notes for prompting purposes and upon completion of her comprehensive report she disposed of the notes. In his evidence, Dr Blakemore was asked about keeping notes and he said that notes were not usually kept in psychotherapy cases. He went on to say that there was no ethical reason for destroying notes. There can be no reason to reach any conclusions adverse to Dr Viliunas because notes were not available at the time of the hearing. Furthermore, the Deputy President did not suggest when the appeal came on for hearing that Dr Viliunas give evidence, as was the case with the appellant and Dr Roberts.
It seems to have been of significance to the Deputy President that Dr Viliunas did not write the report of 14th February 1996 until nearly eight months after the appellant ceased work and that it contained details of allegations going back to 1990. The Deputy President said:
“It was open to the Review Officer to prefer the opinion of Dr Viliunas, expressed in a medical report, and whose report suffers from what would ordinarily be regarded as significant shortcomings, to that of Dr Blakemore, who did give evidence and was cross-examined.”
This observation is puzzling. Dr Blakemore gave evidence, but he only saw the appellant once and for medico-legal purposes. That is no reason in itself to reject the opinion of Dr Blakemore, but it can hardly be a reason to reject the opinions of Dr Viliunas, who was a treating psychiatrist over a long period of time and who gave detailed reports including reasons for her opinions. It is plain from Dr Blakemore’s evidence that he misunderstood the statements made by the appellant to him. He said that the basis of his opinion was that the decision not to renew the appellant’s contract was the reason for her disability. I think it is likely that he did not address the correct question. I return to this matter again shortly. Furthermore, the Deputy President did not identify the “significant shortcomings”. In my view, there are none.
It is plain that the Deputy President preferred the opinions of Dr Blakemore to those of Dr Viliunas. In my view, in the circumstances, he was in error in doing so. As has been seen, the Review Officer accepted the evidence of the appellant. She found her to be a genuine witness. Dr Blakemore also regarded her as genuine. There was no evidence before the Deputy President which could justify a contrary view. There was no reason to prefer the opinion of Dr Blakemore to the opinions and conclusions of Dr Viliunas, or at the least to decide that the Review Officer was wrong in her conclusions. In my view the Deputy President approached the matter as if he was hearing the matter de novo and erred in law in doing so. The decisions of the Review Officer were fully justified by the evidence.
Whilst it may be said that the situation in the present case differs from that in Keen because the appellant did give evidence before the Tribunal, it must be acknowledged that she only gave relatively brief evidence about matters selected by the Deputy President. There is nothing apparent in the transcript of the evidence of the appellant, or Dr Roberts, before the Deputy President which suggests a basis for rejecting the evidence of the appellant and nowhere in his reasons for his decision does the Deputy President say that he based his decision on her demeanour in the witness box or on the manner in which she gave her evidence.
These grounds of appeal are established.
I now turn to the grounds of appeal which challenge particular conclusions of the Deputy President as to when the disability of the appellant arose.
He accepted the case of the respondent and concluded that the redundancy caused the disability. He also accepted the alternative basis of the respondent’s case, namely that if incidents in the workplace did cause disability, they were administrative actions in nature and the appellant could not discharge the required onus.
It will be remembered that the Review Officer found the redundancy not to have been the predominant stressor causing the disability. The Deputy President said:
“That is a logical non sequeter [sic]. The undisputed facts are that:
1......... The Worker was able to continue working until 16 May 1995.
2Only after that date did she become unable to work.
3......... Had the redundancy not occurred she would have continued to work.
4Had her contract been renewed she would have continued to work with the A.C.F. in exactly the same job as prior to May 1995, or in such other position in which her duties were modified to take into account changed circumstances of funding.
These facts make unacceptable a finding that as the cause of the disability pre-dated the redundancy (although not producing an incapacity) this obviated any consideration of the cause of the disability when it became incapacitating. The very compensation that was sought was pursuant to Section 35 i.e. Weekly Payments of Income Maintenance.
That says:
’35.(1)...... Subject to the Act, where a Worker suffers a compensable disability that results in incapacity for work, the Worker is entitled to weekly payments ...’”

He went on to say that the disability cannot be considered in isolation from the incapacity which it produced and that a disability that did not produce incapacity before the date when the contract was not renewed was not the cause of incapacity subsequently. He said that the overwhelming cause of the disability was the appellant’s dissatisfaction with the administrative functioning of the Foundation and, in particular, her dissatisfaction with the failure to obtain promotion in 1992, the administrative “interference” in the re‑organisation of her duties and the cancellation of some media events and the events of the meeting on 28th March 1995. He went on to say that these were “the predominant causes of the disability”.

I think the Deputy President erred in his observation that disability cannot be considered in isolation of incapacity. Under the Act they are different concepts. I have mentioned s30 which establishes, in the present circumstances, the conditions under which a disability is compensable. Under the Act, disability has replaced the concept of injury in previous legislation. S35(1) provides for compensation by way of income maintenance where a worker suffers a compensable disability that results in incapacity for work. So, there must be both a relevant disability and incapacity for work. A worker may suffer a disability but not, at a particular time, be incapacitated for work. A person may have a disability and suffer incapacity, at least partial incapacity, and continue to work. The fact that the appellant continued to work does not mean that she did not suffer a disability, although evidence of continuing to work is likely to be relevant to the question of disability. The clear evidence, accepted by the Review Officer, is that the appellant suffered a disability due to employment before the redundancy. I think that is also the effect of the evidence of Dr Blakemore and, as has been seen, that was the evidence of Dr Viliunas. Given the nature of that disability, which was an illness or disorder of the mind, her continuing to discharge her duties does not negate disability. She became totally incapacitated after her employment ceased. By that time, her disability resulted in total incapacity.
Careful reading of the transcript of Dr Blakemore’s evidence suggests that he also mixed the concepts of disability and incapacity. In his written report he said that the appellant was suffering from an emotional condition which he said could best be described as an “adjustment reaction with depression”. He said that she presented “very genuinely” as having been treated very badly at work and that while she was coping with work and her duties for the next three years were clear, she said she was devastated by her being made redundant. He then said that her present condition, ie at 23rd August 1997, when he examined her:
“... appears to be a result of her work experience, as she has perceived it, particularly the shock of her being made redundant, her perception of her position now that she is involved in WorkCover matters, and her involvement in this litigation, which perpetuates the memories of any work place discord.”

In his evidence Dr Blakemore was asked as to the importance of her being made redundant “in the production of her disability”. He said:

“A.... Well, from the history Mrs Levi gave me that’s what actually disabled her. I mean, she was having difficulties at work and was involved with disputation procedures, but was working on and had - was planning to work for the next three years. I can remember her telling me her duties were sorted out. She was not disabled for work by any sort of, you know, difficulties then, and then wham she was made redundant and that’s what confined her to bed for a few weeks - the shock of that - being treated so badly, as she felt. [my emphasis]
Q... it was the shock of being made redundant - that itself was the predominant cause of her mental illness - the psychiatric illness.
A...... Yes, she said that for her this had been a transparent attempt to get rid of her - a transparent way of getting rid of her. That was her perception of that.”

The passages I have emphasised suggest that he was referring to incapacity for work rather than disability. I think that he equated those concepts.

It is instructive to consider the evidence of the appellant about this matter. Her evidence is that she had no warning that her contract would not be renewed. She said that upon being told she “was very stunned and ... very shocked”. She was extremely distressed for some weeks after she left. She was in tears and could not sleep. She was suddenly physically ill and in bed for a couple of weeks. She was describing the immediate effect of the redundancy upon her and then her state of health after she left work.
In my view, the Deputy President did confuse disability and incapacity and erred in saying that it necessarily follows that because a person is working, there cannot be a disability of this nature. Also, as I have said, it is an error, in my view, to say that because a person is working, there cannot be any incapacity. The Deputy President erred in concluding that because the appellant was working until her contract was not renewed, she was therefore not incapacitated and consequently did not have a disability. I expect it is not unreasonable for persons suffering a disability due to work-related stress, which has resulted in incapacity, at least to some extent, to continue to work for a time.
The Deputy President first considered the case of the respondent in the alternative. It seems that he concluded that even if the appellant did suffer any disability before the redundancy, it was wholly and predominantly caused by reasonable administrative actions which were carried out in a reasonable manner. The Deputy President said that the approach of the Review Officer was flawed because she did not consider whether each of the incidents said to cause the stress were administrative actions. He took the view that it was necessary to first consider whether the actions causing the stress were administrative actions and, if so, to then consider whether the disability arose wholly or predominantly from such administrative actions. In adopting this approach, the Deputy President purported to follow, in substance, the decision of Lander J in Keen at pp46-47, although in that case Lander J added the further consideration of whether the administrative actions were reasonable and taken in a reasonable manner which would fall to be decided if the other questions were answered in the affirmative.
He then proceeded to consider each of the particular incidents which I have mentioned earlier in these reasons and concluded that they were all administrative matters which, he said:
“... were clearly within the competence of the administration to make. There is not the slightest evidence to suggest that those decisions were unreasonable in themselves or were carried out in an unreasonable manner. Indeed, they were not seriously argued to be so. Their common denominator was that they were not to Ms Levi’s liking.”

He went on to say:

“They may have caused her some ‘tension’. They may jointly or severally have precipitated an illness or disorder of the mind. If they did, then it was necessary to analyse them to ascertain whether they fell within the ambit of Section 30A(b). Being prima facie administrative actions - if they were to be rejected from the causative process - the employer was entitled to know why.
It was necessary for such an analysis to be undertaken because it was always the Employer’s case that, to the extent that Ms Levi could demonstrate an illness or a disorder of the mind prior to May 1995, employment could only be nominated as a substantial cause of the disability if the undoubtedly administrative actions were considered both as part of the employment and part of the causal process of the disability.”

In my view, the Deputy President misunderstood the case of the appellant and her evidence, as well as the findings of the Review Officer. The evidence of the appellant was not so much about individual incidents but about all of the circumstances in the work place over nearly all of the period of her employment.
It is sufficient only to mention two pieces of evidence by way of illustration. The first is the grievance letter as it has been described which the appellant wrote to Dr Roberts on 30th March 1995 following the meeting on 28th March 1995. In this letter she alleged conduct on the part of Dr Roberts over a long period of time by way of hostile behaviour causing a tense and unpleasant atmosphere. She went on:
“It would seem you have a problem relating to me, as evidenced by this and a history of other incidents. I have felt undermined by you on many occasions both personally and professionally and have felt offended by your putdowns of other staff. You rarely initiate contact or communication with me, except where absolutely necessary. I feel that you over-react to any divergence of view and seem unwilling to tolerate any opinion that does not accord with your own. This has a silencing effect on both myself and others which has led to an increasingly dysfunctional team dynamic.
I make significant contributions to the Smoking and Health Project and have always been prepared to generate ideas and offer opinions or critical feedback. I expect my contributions to be received and discussed sensibly and not attacked out of hand. I expect to be treated with respect and courtesy, as I treat my colleagues.”

It may be seen that the appellant was not referring to mere administrative actions, but to what she regarded as a course of conduct. In her evidence before the Tribunal she said, when referring to the meeting on 25th March 1995:

“A.... There was a matter - a relatively minor matter really - that arose about which members of staff would be attending another meeting which was for the purposes of planning a youth forum and there had been a difference of opinion about who should attend. It was at that meeting that I - and because of the way that discussion happened, something just happened to me after a long, long period of having difficulties with my line manager. All in a moment in the face of what I found to be her obstructive and belligerent response to me, I just at that point in that meeting reached the very, very end. I just snapped and suddenly felt completely paralysed and I was in a state of major shock. I guess I’d been operating on a reserve tank for a really long time and thought that it was unlimited, and I just suddenly reached a moment where I had felt I could not bear to be there for even five more minutes. I was completely silent, and I said - I asked to be excused and said, ‘I’m feeling very unwell’, and I left the meeting. I guess that was when I realised that I had to do something; that the situation had become intolerable for me, and I wrote the grievance notice that night at home and presented it to my line manager the day after.”

This evidence summarises features of the appellant’s case. It is similar to the evidence given to the Review Officer, although that evidence was much more comprehensive and was not limited to the topics selected by the Deputy President.
In my view, the Review Officer accurately described the nature and circumstances of the office practice and conduct of some of the workers as perceived by the appellant which caused the disability of the appellant prior to the redundancy, and it is a mistake to focus upon the relatively few matters which may be described as administrative actions.
The appellant’s complaints were not about administrative actions, but work practices and behaviour of particular workers, in particular Dr Roberts, or at least the appellant’s perception about such matters. The conclusions of the Review Officer were open on the evidence, including her conclusions that those incidents which did amount to administrative actions were not the predominant cause of the disability.
In my view, the Deputy President erred in overturning the findings of the Review Officer in those respects and those grounds are also established.
The Deputy President then considered the primary contention of the respondent which, as I have said, was that it was the redundancy which caused the disability. He rejected any suggestion of improper motive on the part of Dr Roberts or anyone else at the Foundation. He said he unhesitatingly preferred the evidence of Dr Roberts to that of the appellant. Having considered the evidence before him of the appellant and Dr Roberts, it is not clear what part of the evidence of the appellant he rejected except her perception that the redundancy was contrived to get rid of her. It does not appear that he rejected her perceptions of what was occurring in the work place.
The Deputy President rejected the finding of the Review Officer that the redundancy was not the predominant cause of the disability. He found to the contrary and this decision is the subject of various grounds of appeal. He said, at p1257:
“It was open to the Review Officer to deal with the matter on the basis that the events before 16 May 1995 produced a disability and that:
(a).... the administrative actions about which Ms Levi complained were either not administrative actions, or alternatively
(b)‘tension in the workforce was such that the administrative actions could not be considered as a wholly or predominantly causative factor in the disability’, and/or
(c).... that the redundancy, although an administrative action, was not the whole or predominant cause of the disability.
However, it was not possible to deal with the matter on the basis that a disability that did not produce incapacity prior to May 1995 was the cause of the incapacity post 16 May 1995 - and ignore the events following 28 March 1995 upon which the retrenchment event was superimposed.”

It is not clear to me what he meant by this observation because the conclusions which he did reach indicate that it was not open to the Review Officer to reach the conclusions which he mentions in this passage of this judgment. However, it is the last part of that passage which is of importance when considering the effect of the redundancy.

The Deputy President began his analysis by saying that, in his view, tension in the work place, as it is perceived, is a symptom not a cause. I do not know what is meant by that observation. Tension may be a consequence of conditions of employment, human conduct, the nature or pressure of work or other matters. It can clearly be the cause of stress which, in turn, may cause disability.
He next considered the evidence of Dr Blakemore and Dr Viliunas. He preferred what he understood to be the opinion of Dr Blakemore and he rejected the evidence of Dr Viliunas. This is an important matter and it is necessary to consider his reasons for doing so in some detail. The opinion which he preferred is that it was the redundancy which caused the disability.
His reasons are, first, that the factual scenario set out by Dr Viliunas “is a gloss on the actual history”. I do not understand that observation. Dr Viliunas was the treating psychiatrist over a long period of time and her reports set out the history taken, her observations, her opinions and the basis for them in considerable detail. The history which she took was confirmed by the evidence of the appellant. In so far as he made a criticism of Dr Viliunas by that observation, it was not, in my view, justified.
The second reason is that he regarded the observations of Dr Viliunas that the “redundancy” was “a devastating blow” to the appellant as being remarkably similar to the opinion of Dr Blakemore. In fact it was not. This observation of Dr Viliunas was not about the disability of the appellant or what caused it as, in her opinion, it pre-dated the redundancy, but was about the way in which the appellant felt about the contract not being renewed. In my view, there was no similarity at all. The two psychiatrists may have had differing opinions but, as has been mentioned, careful consideration of Dr Blakemore’s evidence suggests that he was addressing incapacity and not disability. As that seems to be the case, there may not have been much difference between the views of the two experts. The evidence of the appellant as to the effect of the redundancy upon her has been mentioned. Obviously, the redundancy did have a substantial emotional impact upon her, but that is not to say that it caused the disability. It was an error to use this observation of Dr Viliunas as support for the opinion of Dr Blakemore.
The third reason is that he took the view that the opinions of Dr Viliunas, expressed in her report of 18th December 1995 were not borne out by the oncologist who treated the appellant. The report of 18th December 1995 was expressed in brief terms and did not refer to the cancer condition. Dr Viliunas wrote that the appellant was unfit for full-time work from 1st January 1994 “on medical grounds due to work-related stress”. However, in her report of 14th February 1996 she wrote that there can be a relationship between stress and bone marrow disorder. She expressed the view that studies in both orthodox medicine and natural or alternative therapies support a long held view “that the immune system is significantly sensitive to altered biochemistry and physiology of the body found in repeated intensive or prolonged stress, both as a pathogenic factor and as an arena amenable to favourable intervention”. She went on to express the view that, given her cancer condition, the appellant’s life expectancy would have been compromised had she continued to work in stressful circumstances at the Foundation and that her morbidity was already well on the way to being compromised. Dr Kotasek was the appellant’s oncologist. He wrote a report on 30th November 1995 which was before the Review Officer and the Tribunal. He wrote that his reading of the literature “concerning this disease does not suggest that the natural course of the disease or its onset is in any way related to stressors such as those described by Ms Levi”. Dr Kotasek did not give evidence. Dr Blakemore did not give any evidence about this matter. In my view, it is an error to reject the opinion of Dr Viliunas on all matters simply because of the observation made by Dr Kotasek about his understanding of the state of the literature about this topic, particularly when neither Dr Viliunas nor Dr Kotasek gave evidence.
The fourth reason is that Dr Viliunas did not keep notes. As has been seen, there is no sound basis for rejecting the opinions of Dr Viliunas for that reason.
The fifth matter is that it appears that he relied upon one part of a medical certificate given by Dr Viliunas on 2nd September 1996. In answer to the question in a proforma certificate, Dr Viliunas wrote that the appellant was suffering from anxiety and depression which the appellant “claims was caused by, and which appeared to be consistent with, inappropriate workplace management practices”. This expression was repeated in a subsequent certificate given on 7th August 1997. In his reasons for judgment, the Deputy President mentioned those words, but he does not indicate their significance to him. The certificate must be considered in its entirety. Dr Viliunas stated that the date of the injury was over the whole period from 1990 to 1995. She stated that the appellant had a stress-related disability and referred to her reports and that her certificate is amplified in her reports of 14th February 1996 and 27th August 1996. If the Deputy President treated this certificate as an expression of opinion by Dr Viliunas that the appellant’s disability was caused by administrative actions, he would have misrepresented Dr Viliunas’ opinions which are set out in her reports and he would have confused management practice with administrative action. Management practice may permit inappropriate procedures or human behaviour which cause stress but may not constitute administrative action.
As has been seen, I do not think any of these matters could justify the Deputy President in rejecting the decisions of the Review Officer to accept the opinions of Dr Viliunas as to when the disability commenced in preference to the opinion of Dr Blakemore and he erred in doing so. They do not justify his acceptance of what he regarded as the opinion of Dr Blakemore. The Review Officer was fully justified in reading her conclusions and these grounds of appeal have been established.
The acceptance of the opinion of Dr Blakemore and the rejection of the evidence of Dr Viliunas contributed to the decision of the Deputy President that the redundancy caused the disability. He said that it was an administrative action and that the appellant had not shown that the disability did not arise wholly or predominantly from any of the matters set out in s30A(b). He held that the decision not to renew the contract was to retrench the appellant and that it was a reasonable action taken in a reasonable manner: see s30A(b)(i). In brief terms, he based that decision on acceptance of evidence that a change in funding arrangements for the Foundation caused the Foundation to accept that the manner of purchasing “media product” would be different in the next financial year and that the supplier of funds, Foundation South Australia, would have the capacity to carry out certain activities which had previously been performed by the appellant.
I do not think it is necessary to consider whether the decision not to renew the appellant’s contract was an administrative action falling within s30A(b)(i) or whether it was reasonable or taken in a reasonable manner, because of the finding of the Review Officer, correctly made in my view, that it had been established that the disability of the appellant did not arise wholly or predominantly from that action. For the same reason it is not necessary to consider whether this action falls within s30A(b)(iii) or (iv).
It will be remembered that in February 1995 the duties of the appellant for the next three years were clarified. After the meeting of 28th March 1995 and the writing of the grievance letter, the appellant attended a meeting with Dr Trinker and Dr Roberts on 12th April 1995. She gave evidence before the Deputy President about this meeting. According to her, there was no mediation or attempt to resolve differences or problems. She said she was “dressed down and admonished”. She said that she attempted to explain that she was at “the end point of a very long history of extreme difficulty”. The meeting ended abruptly when Dr Roberts said she was not participating further. There is nothing in the evidence of Dr Roberts before the Deputy President contrary to this evidence, although it appears that there must have been considerable discussion if the meeting took one and a three quarters of an hour as recalled by Dr Roberts.
According to Dr Roberts, she was requested to consider future staffing requirements and she recommended that the contract of the appellant not be renewed. That recommendation was made at about this time and the timing was merely coincidental. The recommendation was not communicated to the appellant and she was not aware of it. The Deputy President accepted the evidence of Dr Roberts that the recommendation was made for sound management reasons given other staff were to be engaged, and was not based upon any ill feeling towards the appellant or for any improper motives.
The appellant went on leave for about two weeks returning to work on 2nd May 1995.
On the morning of 8th May 1995 she was asked by Dr Trinker’s secretary to attend a meeting that afternoon. She was told that she could bring a union representative with her which, she said, caused her alarm. She attended the meeting which was with Dr Trinker and Dr Roberts. The appellant had a support person with her and another person from the National Heart Foundation was also present. Dr Trinker told her that her contract would not be renewed because there was some restructuring at Foundation South Australia. She was also told that she had to take the balance of the annual leave due to her before the expiration of her contract on 30th June 1995 or the leave would be forfeited. In consequence she had three days to wind up her employment. According to the appellant, she had no forewarning of the decision not to renew her contract. I have mentioned her evidence to the Review Officer of the effect of the redundancy upon her.
It may be expected that in the circumstances the announcement to the appellant that her contract of employment was not to be renewed and that she had to leave her work in three days would have been a shock to her and very distressing as it would to most people. Given her pre-existing disability, it may be expected that her stress level may increase and that her disability may be exacerbated. However, the evidence established that the redundancy per se did not cause the disability. The evidence of the appellant and Dr Viliunas is to the contrary. The evidence of Dr Blakemore, properly understood, does not establish that it did.
Having concluded that the Deputy President was in error in rejecting the evidence of the appellant and Dr Viliunas, there is no reason to overturn the finding of the Review Officer that the disability arose before the redundancy and the Deputy President erred in doing so.
It was argued by the respondent that the Review Officer did not consider the redundancy as being relevant to the cause of the disability. As has been seen, the Review Officer said that as Dr Viliunas did not give evidence it was not possible for her to make a finding as to the precise date of the commencement of the disability. She said that for present purposes the disability existed before the redundancy. She went on to say that having made that finding she did not consider the redundancy to have been the predominant stressor causing the disability although it may well have contributed to the “perpetuation” of it once she left the workplace.
I do not think this reasoning establishes that the Review Officer disregarded the question of whether the redundancy caused the disability. It was unnecessary for the Review Officer to have to fix the date of the commencement of the disability because no issue of compensation arose until after the redundancy. In any event, it would have been extremely difficult to do so because the disability was of gradual onset. It was sufficient for the purposes of the claim if the disability existed before the redundancy which the Review Officer found. Having made that finding it followed that the appellant had discharged the onus of proving that the redundancy was not the cause of the disability, and so it may be seen that the Review Officer did consider that matter.
Having found that the employment was a substantial cause of the disability, it was necessary for the Review Officer to decide if the appellant had established that the disability did not arise wholly or predominantly from any of the matters set out in s30A(b). She approached that task by considering what were the predominant stressors and, as has been seen, she found them to be the tension in the workplace, as perceived by the appellant, over a long period of time, and not the particular incidents, which have been mentioned, and which may or may not be individually regarded as administrative actions. I do not accept that the Review Officer did not consider the relevance and significance of the redundancy.
In my view, the grounds of appeal relating to this matter have been made out and the Deputy President erred in rejecting the findings of the Review Officer and deciding that the predominant cause of the disability was the redundancy.
It is unnecessary to consider the other matters on this appeal. As can be seen from the terms of s30A(b), the Deputy President, having concluded that the disability was predominantly due to the redundancy, he was obliged to consider the other matters set out in the subsection.
Arguments were presented to us about these matters, but it is unnecessary to resolve them because of the conclusion that the appellant had established that the disability did not arise wholly or predominantly from any of those matters.
These errors of the Deputy President are errors of law and consequently the appeal to this Court is available pursuant to the former s100(3) of the Act which provides that an appeal is limited to a question of law.
I would allow the appeal, set aside the decision of the Tribunal and restore the determination of the Review Officer made on 17th December 1997.
BLEBY J I agree.

[2000] SASC 167

29 June 2000