Mador and Comcare (Compensation) - [2022] AATA 892

Mador and Comcare (Compensation) [2022] AATA 892 (27 April 2022)
Division:GENERAL DIVISION
File Number: 2019/5822
Re:Ana Mador
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Dr I Alexander, Senior Member
Date:27 April 2022
Place:Sydney

The Tribunal finds that:
The decisions under review are affirmed.
.....................................[sgd]...................................
Dr I Alexander, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION –– anxiety/stress disorder – whether Comcare is liable to pay compensation for psychological injury – whether Applicant suffered a psychological ailment for the purposes of section 5B of the SRC Act – whether Applicant’s ailment was contributed to, to a significant degree by her employment with ATO, therefore, a disease for the purposes of section 5B of the SRC Act – whether Applicant suffered disease as a result of reasonable administrative action, taken in a reasonable manner in respect of her employment with the ATO and, therefore, not compensable under the SRC Act – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21;19 FCR 463
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martinez (No 2) [2013] FCA 439
Nguyen and Comcare (Compensation) [2018] AATA 1623
REASONS FOR DECISION
Dr I Alexander, Senior Member
27 April 2022

Ms Mador is a permanent part-time employee of the Australian Tax Office (ATO). She has worked in the Superannuation Business Line in various teams since she commenced employment in August 2000 as an administrative officer at the APS4 level.
At the relevant time, Ms Mador was an EL1 Law interpretation Officer in the Interpretive Advice (IA) area within the Technical Leadership and Advice branch where she had worked since August 2012.
In May 2018, Lekie Johnstone (LJ)[1] had a brief conversation with Ms Mador and other employees to test their interest in possible redundancies that may be available in the future.
[1] EL2 – Director of Interpretive Advice (IA) in the Technical Leadership and Advice branch of the ATO.
Between 10 June 2018 and 10 September 2018, Ms Mador was overseas on leave.
On 24 September 2018, in a meeting with LJ, DBZQ,[2] and Fiona Elliot (FE)[3] to discuss the new team structure to be implemented in November 2018, Ms Mador and Mr David Lavender (DL),[4] were informed that the STO unit is to be disbanded and that the three members of the Sydney STO team will be transferred to the Sydney IA team.[5] During the meeting they were also informed that they would be reporting to DBZQ as the team manager.
[2] EL1- AI Team manager.
[3] EL1 – STO team manager.
[4] Sydney Senior Technical Officer (STO) team: A. Mador - EL1; R.; D. Lavender (DL)- EL1; Tesoriero (RT)-APS6.
[5] Other team members of the STO unit were based in Tasmania and Queensland.
On 27 September 2018, in a meeting with LJ and FE, Ms Mador raised concerns about reporting to DBZQ because of an unreported issue that had happened several years earlier.
On 15 October 2018, Ms Mador had a final Compass meeting before the change of reporting commenced.[6] This was the second of two Compass meetings with FE that year, an earlier meeting having been held in May 2018.
[6] A feature of the employment of all ATO employees is the Compass performance framework. Compass is meant to help employees to achieve their full potential through ongoing and development focussed conversations, as opposed to twice yearly reviews. Regular ‘check-ins’ are one of the four key elements.
On 5 November 2018, Ms Mador and the other two STO team members were transferred into the IA team based in Sydney.
On 22 November 2018, a communique regarding the launch of the voluntary Mobility Register was sent to all EL1s. The communique ‘strongly encouraged’ employees who had been in their current role for more than three years to apply ‘to develop further skills and a broader understanding of our business’.
On 26 November 2018, Ms Mador and other EL1 employees received a personalised email,[7] restating the content of the communique and were told to ensure that they had a Compass check-in discussion with their manager in the following two weeks.
[7] From Super Business Services for Malcolm Allen Assistant Commissioner.
On or about 30 November 2018, Ms Mador was invited to attend a meeting with LJ and DBZQ for a Compass check-in discussion. The meeting was held on 3 December 2018.
On 11 February 2019 Ms Mador was invited to a second Compass check-in discussion with LJ and DBZQ which was held over two sessions on 18 February 2019.
On Tuesday 19 February 2019, Ms Mador emailed DBZQ, with a copy to LJ, informing them that she would be on sick leave for the rest of the week because ‘I saw my doctor yesterday and it seems that I have a very bad respiratory track infection [sic]’.
Ms Mador did not return to work until 4 March 2019. On the same day she submitted a formal complaint against Ms Johnstone and DBZQ alleging that they had engaged in conduct in breach of the ATO Workplace Bullying, Harassment and Discrimination Policy CE2015/02/05.
On 11 March 2019, Ms Mador left work ‘feeling sick’.
On 13 March 2019, Ms Mador lodged a worker’s compensation claim for ‘severe anxiety’. She claimed that she first noticed symptoms on 4 December 2018 but had not sought treatment until 11 March 2019.
In a decision dated 13 May 2019, the ATO Claims and Liability Management Team (the Team), determined that Comcare was not liable to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for ‘anxiety/stress disorder’.
The Team accepted that Ms Mador had suffered a condition that was contributed to, to a significant degree by her employment at the ATO, but that her ‘injury’ was suffered as a result of ‘Reasonable Administrative Action undertaken in a reasonable manner’ and therefore, excluded under the provision of the SRC Act.
In a letter dated 3 June 2019, Ms Lin, Assistant Commissioner, informed Ms Mador that she had undertaken enquiries into the allegations against Ms Johnstone and DBZQ and stated that ‘based on the information I have reviewed, I do not believe there are sufficient grounds to progress the matter’ and that ‘in the absence of any substantiating evidence, I have been unable to determine that there has been a breech of ATO Workplace Bullying, Harassment and Discrimination CEI 2015/02/05 [sic]’.[8]
[8] In a Review of Action Report dated 15 January 2020, the Reviewing Officer recommended that the decision By Ms. Lin dated 3 June 2019 be confirmed.
In a reviewable decision dated 16 July 2019, an ATO Senior Case Manager, under delegation by Comcare, informed Ms Mador that the ‘after taking into account all available evidence’ in her claim, the Determination dated 13 May 2019 was affirmed pursuant to section 62 of the SRC Act.[9]
[9] Sent by email.
On 19 September 2019, Ms Mador applied for a review of decision under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
A hearing was listed for 16 February 2021. On the day of the hearing, the Respondent applied for an adjournment when it became apparent that Ms Mador had not met the statutory requirement to apprise the Respondent on all the relevant evidence and other matters that she intended to rely on.[10] The request for adjournment was granted.
[10] Section 21 of the AAT Act - 28 days before the hearing.
In these proceedings, Ms Mador, who was represented by counsel, seeks review of the reviewable decision, dated 16 July 2019.
In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, all parties attended the hearing by video conference.
RELEVANT STATUTORY PROVISIONS
Section 14 of the SRC Act relevantly provides as follows:
Compensation for injuries
(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 of the SRC Act provides as follows:
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.
For the purposes of applying s 5A(1)(a), the definition of the word ‘disease’ is provided by s 5B of the Act in the following terms.
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.
(2)   In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)    the duration of the employment;
(b)    the nature of, and particular tasks involved in, the employment;
(c)    any predisposition of the employee to the ailment or aggravation;
(d)    any activities of the employee not related to the employment;
(e)    any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
For the purposes of applying ss 5A, 5B and 14, the following definitions from s 4(1) and (9) of the Act are relevant.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
“Impairment” means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
ISSUES
The first issue is whether in March 2019, Ms Mador suffered a psychological ‘ailment’ for the purposes of section 5B of the SRC Act?
If so, the second issue, is whether Ms Mador’s ‘ailment’ was contributed to, to a significant degree by her employment with the ATO and, therefore, a ‘disease’ for the purposes of section 5B of the SRC Act?
If so, the third issue is, whether Ms Mador suffered her ‘disease’ as a result of reasonable administrative action, taken in a reasonable manner in respect of her employment with the ATO and, therefore, not compensable under the SRC Act?
Ms Mador’s Evidence
The claim form
In the claim form lodged on 13 March 2019, Ms Mador stated that she had first noticed symptoms on 4 December 2018 at 8:00 am and described how she was injured,[11] inter alia, as follows, with emphasis added:
I have been subject to workplace bullying by my manager and their manager (Director). This has involved ongoing pressure to leave the team I am working in either by transferring to another area of the ATO, or to accept a redundancy on the grounds that I am not adapting to the changing work environment. This type of the redundancy was first offered to me in May 2018. I was told to keep the offer confidential and not discuss it with anyone. I declined the offer because I did not believe that it applies in my circumstances. I was then asked if I wanted to know if voluntary redundancies became available in future, I said ‘yes’… Since then, there were a number of discussions where the Director stated that she had to get ‘better value’ from Sydney EL1s … and she needed to make changes. Changes were made whereby in addition to the work we were doing before ... we had to provide advice/manage complex cases and deal with high profile clients directly. Before changes were made, and on several occasions since, it was suggested to us that we should think about whether we are ‘engaged’; … whether we want to go on the mobility register, and that we should think ‘our options’ [sic]. The last time we had a discussion about my role and whether or not I was adapting to the new work structure (18 February 2019), I was asked if I would be interested in a redundancy and when I said ‘no’ I was told by my manager that in future I may not have my overseas leave approved and false allegations were made with regard to my behaviour in the workplace, namely that I did not ‘engage’ with all members of the team. I did not record my times in the TMS accurately, I had long personal conversations in the workplace, and I had made regular, long personal telephone calls while at work. Also, the Director stated that sometimes a manager may have to do something which is not ‘technically legal’ and wanted to know whether I would support my manager at in these circumstances [sic].
All of this has caused me severe anxiety and I no longer feel safe at work because I do not know what is going to happen next. I feel that I am watched all the time with the intention of finding fault and making me uncomfortable/upset so that it may be used to exert further pressure to get me to leave/accept redundancy that I otherwise would not accept.
[11] That is, 17 working days after being transferred to the Sydney IA team.
Request for reconsideration
In her request for reconsideration, dated 4 June 2019, Ms Mador stated, inter alia, as follows:
It cannot be said that but for the administrative action described in paragraph 16 of the Determination, I would not have developed my condition. I first experienced symptoms of anxiety/stress in the workplace in April 2015 after I became aware of [DBZQ]’s complaint to Ms T. This had increased in November 2017 when [DBZQ] replaced Ms T as IA’s team manager and yet again when I was advised that I would be transferred into the IA team. [DBZQ]’s behaviour towards me from that time onwards, and other work-related events following the discussions on 18 February 2019, had a significant effect on me. …[12]
[12] On 9 January 2015, Dr Wong, Ms Mador’s GP recorded ‘feeling anxious gets palpitations. Between 16 January 2015 and 24 December 2015 Dr Wong records five brief consultations with no reference to ‘anxiety or stress’. Between 27 September 2017 and 5 June 2018 there are no recorded consultations with Dr Wong.
Written statements
Extracts from Ms Mador’s 151 paragraph written statement, dated 14 February 2020, are as follows, with emphasis added:
P3:I joined the ATO on 28 August 2000. Since 2001, have worked in various teams as a technical officer (law interpretation officer).
P4:From about 2005- 2011, [DBZQ] (a lawyer) and I worked together while he was a litigation officer in Legal Services …
P5:In 2011, [DBZQ] accepted the role of the CTU (Sydney) and was my manager for about a year.
P6:In 2013, CTU was disbanded … and I were transferred to the private binding rulings (PBR) team.
P7:In 2014, [DBZQ] joined PBR team as an EL1 technical officer … I was working as an EL1 Senior Technical Officer (STO) in the STO team … At this time, [DBZQ] reported to Beata [BT] and I reported to Alastair [AR]. Mathew [MT] was our Director.
P8:In April 2015, BT told me that [DBZQ] had made certain work- related accusations against me and made her promise him that she would not tell me about it. I told MT and AR about this but did not pursue the matter further.
P9: In about 2015/16, [DBZQ] left the PBR team and we did not work together until November 2017 when [DBZQ] became interpretative Advice (IA) team manager. At this time, he reported to LJ and I reported to FE.
P11:During the period November 2017 to February 2018, [DBZQ] complained (to LJ and/or FE) on several occasions that the Sydney STOs were not helpful in actioning cases dealt with in the IA team … this was discussed with Sydney STOs in a meeting on 22/2/2018.
P12:Because of my concerns with regard to [DBZQ]’s behaviour in 2015, on 28 February 2018, I wrote to FE (cc LJ) asking her for specific details with regard to [DBZQ] complaints so that I could determine if I was involved, and if so, what (if anything) I could/should do about it. However, no such response was provided.
P14:In May 2018, LJ asked Robert [RT], DL, Bernadette [BC] and myself if were interested in taking a redundancy.[13] She told us that these were not genuine redundances (GRs) … BC accepted the offer but DL, RT and I declined. … LJ also asked us if we wanted to know if GRs are offered in the future, and RT and I said ‘yes’, but DL said ‘no’.
P15:From 10 June 2018 to 10 September 2018, I was on extended overseas leave. In the meantime, [DBZQ] was reinstated as IA team manager.
P16:On or about 25 September 2018, LJ held a meeting with DL and I (FE was also present) and told us that STO team is to be disbanded and that DL, RT and I are to be transferred into the IA team. We were advised that, in addition to our current duties … we would be also doing most complex cases and dealing with most complex and highly engaged stakeholders. … LJ said that that these changes were necessary because there was no capacity for such work in the IA team and that she had to get ‘better value’ from Sydney EL1s [DL and me] in line with EL1s in other sites. LJ then suggested that this is the time for DL and me to think about whether we are ‘engaged’ … whether we like what we are doing… whether we are happy in SPR or whether we would rather be working somewhere else ... doing something else. She said it was time for us to look for other opportunities and a time to ‘consider our options’.[14]
P18:LJ then asked if we had any questions. I asked her about the line of reporting in the new structure and she said that DL and I would be reporting to [DBZQ].
P19-20:On 27 September 2018, in a meeting with LJ and FE, I told LJ about the April 2015 issue with [DBZQ]. I told her of the effect it had on me and why I did not have confidence that he could/would support me or manager [sic] my performance appropriately. LJ said that she understood my position … but she believed [DBZQ] was trying and still developing as a leader … she asked me if I would give the new team arrangement a go, and I said that I would.
P21:On 15 October 2018, I had my last Compass check-in with FE. FE said that all of my work expectations were met and my performance rating was ‘on-track’.
P22: On 5 November 2018, Dl, RT and I transferred to the IA team.
P24:On or about 24 November 2018, LJ was visiting Sydney and had come to my desk for a catch up. She asked me how things were going in the new structure and asked if I had any concerns. I replied that I had no problems but I had some concerns about certain, inexperienced people being classed as subject matter experts (SME) and the risk associated with those people providing guidance to other officers and authorising advice … LJ disagreed with me and said that I was not in a position to make that judgement. I said, with respect, that I am actually in a better position than she is because I have been peer reviewing and authorising advice written by these individuals for some time … LJ still did not agree with me …
P27:During November, EL1s received several emails telling us about the benefits of mobility, [15] and ‘strongly encouraged’ us to swap jobs with officers in other parts of SPR.[16]
[13] STO team: R. Tesoriero (RT)-APS6; D. Lavender (DL) - EL1; B Clubb (BC).
[14] In her statement of 30 July 2012 LJ stated that she ‘did not recall saying the words attribute to her’.
[15] There was one general communique and one personal email to Ms Mador.
[16] This is a somewhat dismissive and misleading description of the documents.
First Compass discussion
P28- P30: On or about 30 November 2018, [DBZQ] and LJ scheduled a Compass discussion with me for 10am on 3 December 2018. I do not work Fridays, so when I came to work on Monday I had less than 2 hours’ notice. With the invitation, [DBZQ] set out ‘key functions of the EL1 Complex/Technical Case Manager’ and a document titled ‘My expectations’ setting out the administrative requirement of the position. I read through the attachments, including the ‘My Expectations’ document. I had no problem with the job requirements as such but ‘My Expectations’ document offended me very much. It made me feel like I was being ‘put in my place’. I felt insulted, humiliated and frustrated because I believed the intent was to suggest that I need reminding of certain basic administrative requirements; to diminish my position and to put me in a submissive position to [DBZQ]; … I thought it best to take some time to cool down and think about it so that rather than reacting out of frustration, I may respond more thoughtfully and appropriately. I then, emailed [DBZQ] asking if, due to the short notice, we can reschedule … [17] [DBZQ] replied that we should start the conversation, and I could update Compass later to reflect the discussion about my goals and expectations. …
[17] Email at 9:32am- ‘While I am happy to attend the discussion scheduled for this morning at 10 am, I think 2 hours notice is not enough to properly consider my goals …’
P31- 36: [DBZQ] began the discussion by saying that I did not set out my goals etc. I told him I did not have time to do so because of the short notice. He said that he looked in Compass conversations and there was nothing there. I told him that goals were set and they were part of the discussion I had with FE on 15 October 2018. …
LJ took the lead in the discussion and went on to say that this discussion is really just to see how I am adapting in the new structure and whether I am integrating effectively into the IA team. … She went on to say words to the effect that in her view EL1s are leaders and in addition to doing high level, complex technical work, they need to model leadership behaviour, set an example to others … She also asked if there was anything I wanted to discuss. I said yes, ‘My expectations’ document. … I told LJ and [DBZQ] that I had no problem with the complex nature of work we are expected to do, however the high level expectations … with respect to EL1s as leaders … .are not aligned with the level of micro-management evidenced by the ‘My expectations’ document … LJ said that the document was prepared to ensure that everyone was doing the right thing … I then said it is my understanding that, Compass being a two-way conversation, in response to what [DBZQ] expects of me, I may also state what my expectations are of [DBZQ] as my manager … including that he will provide me with honest and open feedback; if there are any problems, he would discuss them with me first and only if I do not respond appropriately to that feedback, would any issues be escalated upwards. They agreed that was a fair and reasonable expectation of [DBZQ] as my manager and the discussion ended.
P37: We are told that compass is supposed to build individual capacity and high performance … one of the key elements of its framework is ‘productive relationships’ through ‘open and honest’ ‘two-way communication’ … at the end of my discussion with LJ and [DBZQ] I felt disrespected, devalued, mistrusted and totally demotivated.
P39: Later in the afternoon, JL held a meeting with all the EL1s mobility/job swaps and told us that we are ‘strongly encouraged’ to participate. One person asked what was meant by ‘strongly encouraged’ to which she replied ‘it is voluntary’… she asked me what I thought about it. I told her that it sounded good …
P40-41: On 5 December 2018 … I went on to SAP to see what has to be done in order to go on to the mobility Register … I was referred to a capabilities self-assessment to assess level at which I was performing in my current job. … I was given two options for management approval: [DBZQ] and LJ. I chose LJ because, at that stage, [DBZQ] was my manager for only about a month and, in my view, he was not in a position to verify/approve my self-assessment. I had no option to nominate FE who had, until a month ago, been my manager for about 4 years.
In the afternoon … LJ emailed me and asked me why she was she [sic] asked to verify my self-assessment and why it had not gone to [DBZQ], since he is now my manager. I explained to LJ why. She then said that, given [DBZQ] is my team manager, she will ask him to contact FE and discuss it with her.
P43-44:On 7 January 2019, LJ advised me that the SAP self-assessment process is currently under review and she was told to hold onto the assessment I submitted for approval until further notice … Subsequently, in an unrelated conversation FE mentioned my self-assessment and told me that, in her view, I had underrated myself in certain criteria. However, LJ and [DBZQ] disagreed with her and as a result they were not able to complete the approval.
Second Compass Discussion
P48-50: On 11 February, I received an invitation from [DBZQ] for a Compass discussion to be held on 18 February 2019 (second in two months) … On 18 February 2019, LJ and [DBZQ] held another Compass discussion with me. Discussion was carried over 3 sessions during the day and lasted approximately 2 hours in total … first session [dealing with integration into PBR team] … was to be of 30 minutes duration … the second session was scheduled immediately after the first session and went from 1pm to 2pm. The third session was a follow-up telephone call from LJ to me at my desk at 4 pm that afternoon … DL an RT also had their Compass discussions scheduled on the same day.
P53-58: LJ opened the discussion stating that this was really about how we [DL, RT and I] were integrating/fitting into/adapting in the new work structure … Broadly, I told LJ that I was integrating fine. I told her about the work I had been doing and said I had no issues to speak of. LJ than [sic] said there may be some redundancies coming up but she did not know whether they will be GRs or not … I said if these are not GRs, I am not interested. If they are GRs I would be interested … [She] handed over to [DBZQ] to raise any issues he wished to raise
P59: [DBZQ] said that, in fact, I am not integrating into the team effectively and that DL, RT and I do not engage with the other team members. He said we were working among ourselves, that we are approving cases and consulting amongst ourselves only … He added that we should be consulting about our cases with other, junior, officers for their development purposes and, as we are now national, with officers in the other sites.
P60: I rejected [DBZQ]’s statement that we are working among ourselves and said that engagement is a two was street – I cannot engage with someone who does not wish to engage with me. Further, my cases are allocated to me specifically because of their most complex nature. … In fact, most people would rather not have to approve my cases. …
P61-67: [DBZQ] then went on to discuss leave saying that the numbers in our team have been reducing and people have not been replaced … resourcing is tight, we will have to be stricter with our leave in the future … we may not have our leave approved … he knows how important it is for me to travel overseas every year, it was important that I understood that my overseas travel leave may not be approved in the future … I could feel the full weight of this statement, and started to feel uneasy about the intent behind it … I was beginning to panic because I thought that if I do not accept a redundancy (even a non-genuine one) and want to travel next year, I will have to resign from the ATO. This thought, together with LJ’s previous messages with regard to not getting ‘good value’ from Sydney EL1s; and needing to consider ‘what are my options’, made me realise just how much they wanted me out of AI.
P68-69: After LJ left … I then commented on the on the engagement issue … certain people in the team do not engage with RT, DL, Petty and I; and that he [DBZQ] speaks to us only when he absolutely has to. Further, he does not even allocate cases to DL and me … [DBZQ] said that he asked the national allocator to allocate to DL and me because DL and I are ‘difficult’. I asked [DBZQ] why are we ‘difficult’? He said “… I will not discuss anything further with you without LJ”. He then turned and left the meeting room leaving me there.
Second session –
P71-75:LJ opened the discussion by saying ‘as this is about Compass’ … we need to have a discussion whether I am ‘on-track’ with my goals and whether there are any other issues that need to be addressed. She said my technical skills and case management are ‘out there’… She asked whether or not I was engaged and discussed various circumstances when a manger may need support and whether I would be willing to show my support. I replied that unless I was asked to do something which was illegal/criminal, I would always support my manager ….and would not engage in any obstructive behaviour … LJ talked at length about what she thinks engagement and leadership means and what she expects of EL1s as leaders … then continued talking about engagement, leadership and supporting one’s manager … she said words to the effect that technical aspects of our work are important, but a manager has to manage and, in doing so, there are times that when a manager has to do things which are not ‘technically legal’ in order to deal with an issue …
P77-84: LJ then said that the ‘on-track’ assessment is to be assessed ‘holistically’. I replied, as far as I am concerned, I am ‘on-track’ … unless [DBZQ] has something to say. She then asked [DBZQ] if he had anything he wished to discuss and he listed the following matters:
not recording my times correctly on the TMS; taking most of my lunches after 2pm; frequent long absences from my work area; frequent long personal discussions during work hours
I told [DBZQ] that I would like to know the details of TMS reporting (dates, etc.) so that I can review my records and cross check with Petty and RL with whom I have most of my breaks … [DBZQ] then said that it was not so much the time recorded but the time taken in the kitchen after we have gone out for coffee and came back. He said that he has personally observed that we regularly stop in the kitchen for coffee and engage in long personal conversations. I asked [DBZQ] how does he know that our conversations were personal and not work related … he replied that he knew they were personal because he has walked into the kitchen at times when we were there and he had heard our conversations. … Already nervous as a result of the first session, I was now getting very upset because [DBZQ]’s comments were huge statements for me, not only because they were not true, but because of the intent behind such statements on his part, and on LJ’s part for allowing him to do so … [DBZQ] then said ‘but there is more’ – and went on to say that I also make frequent long personal telephone calls during work hours that, because I am so loud, everyone can hear. At this point I got very upset because I could not believe what he was saying. I told him that was no [sic] true … I would like to see a report of my personal telephone calls … [DBZQ] told me not to point a finger at him (which I do not remember doing) because this was aggressive. … I then told LJ that I am beginning to see where this conversation is going and I did not wish to proceed with it because I felt ambushed … LJ asked if I wanted Vanessa from human services to be on the next conversation and I said I would prefer to choose a person myself. The meeting ended there.
P88:Third discussion -record of conversation (extracts only)
LJ: called me at my desk.
LJ: just called to let you know that I did not know the discussion was going to go the way it did and that [DBZQ] would bring up those administrative issues.
Me: You could have stopped it at any time …
LJ: But issues [DBZQ] raised were reasonable administrative actions …
Me: Maybe, but I should not have been hearing about them for the first time during the Compass discussion. I thought that policy guidelines state something to the effect that nothing should be ‘a surprise’ in a Compass discussion. If [DBZQ] had concerns in regard to my performance/behaviour he should have discussed it with me first …
LJ: You are right, but do you think he did what he did because he did not feel comfortable discussing it with you without me?
LJ: Do you really think this was done to pressure you to accept a redundancy?
Me: Yes …
P90-93:LJ’s comment about issues [DBZQ] raised being ‘reasonable administrative actions’ suggests to me that she knew that I would be very upset about the first two discussions, so she wanted to tell me that I would have no cause to complain because there are certain exemptions for ‘reasonable administrative action’ in relation to laws dealing with bullying and workers’ compensation. However, to be exempt, reasonable administrative action has to be carried out in a reasonable manner … [DBZQ] did not raise these allegations with me at any time before this discussion and I had no opportunity to defend myself. Further, I had no warning that these issues would be discussed on this occasion, I was not given an opportunity to prepare for the discussion; and I was not given an opportunity to choose/have a support person present. …. I believe that LJ (with [DBZQ]’s help) planned both 3 December 2018 Compass discussion and the 18 February 2019 Compass discussion. Knowing that they could not find fault with my work performance, they introduced ‘My Expectations’ document into the process on 3 December 2019 so that they may be able to raise administrative action such as TMS reporting in a subsequent discussion … The intent behind the two Compass discussions, together with events leading up to them was to pressure me to accept non-genuine redundancy … this was done by implying that I was not adapting to change; my contribution was not valuable; I was on notice with regards to the administrative requirements of my position; and if I wanted to travel overseas next year; I may have to resign from my employment with the ATO.
P94- 95: While I did tell LJ that I would consider a GR, this was not acceptable to her because she does not want to make my position redundant, she simply wants to replace a ‘difficult’ officer with a more acceptable one. … I believe what makes me and David ‘difficult’ for both LJ and [DBZQ] is the fact that we do not follow blindly – we challenge views and raise issues when necessary – and do not sign advice on demand if we do not agree with it …
P96-97: After I left work on 18 February 2019, I went to see Dr Wong about my cough. Dr Wong told me I had a respiratory infection and prescribed anti-biotics … one week later, my condition had not improved, Dr Wong told me … to take another week off work. During this time, I also thought about everything that had happened at work and decided to make a formal complaint about [DBZQ]’s and LJ’s conduct from November 2017 to February 2018.
P99-108: On 4 March 2019, although not fully recovered, I returned to work … I made a formal complaint about [DBZQ] and LJ …
P112-139: Ms Mador describes in detail varies difficulties at work in the period from 5 March 2019 to 11 March 2019. The difficulties included concerns about the progress of her complaint, pressure of workload, concerns about DL’s health and some problems with other members of the team.
P140-141:Monday 11 March 2019 ... When my husband met me at the train station, I told him that I was feeling sick and asked him to take me to Dr Wong … Dr Wong certified me as unfit for work.
P151: I am currently not at work, not running a business and I do not receive income or support from my employer. This has made things very difficult financially and has the potential to greatly affect my income in retirement (emphasis added).

At this point I note that the details and matters in this statement are essentially similar, and in significant parts identical, to the written complaint Ms Mador submitted in March 2019 and I do not intend to record the relevant details again.
In an email to E. Smith, People Support Team, dated 26 March 2019, Ms Mador stated, inter alia, as follows, with emphasis added:
Thank you for the offer to meet with a senior manager … Unfortunately, I am not well enough to take part in a face-to-face meeting. … In regard to finding a solution to my complaint, I did not make the complaint because I wanted a guarantee that my future overseas leave will be approved, because I wanted a genuine voluntary redundancy; or because I wanted to make a claim for worker’s compensation. I made the complaint because of the intent behind the implied threat that in future my leave may not be approved and the false accusations that I did not meet certain basic administrative requirements of my position … I have been working for the ATO quietly and diligently for almost 19 years … I would have continued to perform at the same high level … but for [DBZQ]’s and LJ’s conduct during the relevant period. They have tried to pressure me to accept a redundancy which I told them I would not accept voluntarily, by devaluing my contribution over almost 19 years of service … [DBZQ]’s and LJ’s conduct during the relevant period has caused me much pain and suffering. It has affected my health to such a degree that I had to take sick leave and seek treatment.
Ms Mador submitted a further written statement dated 23 March 2021. In this statement, which comprised 65 paragraphs, Ms Mador revisited much of the ground covered in her earlier statement with some additional recollected details, with an apparent aim to defend her position and criticise the performance of LJ and DBZQ.
Relevantly, with reference to the Compass meeting, with FE on 15 October 2018, Ms Mador stated, inter alia, as follows:
it was customary for Fiona to let us know when Compass check-in was coming up, ask us to think about our goals in preparation, and then she would follow up with an invitation to attend. Sometimes we would get three notices … At both the first and second Compass check-in (May and October 2018), I knew in advance of both meetings what matters would be discussed … the onus was on me to set and take ownership of my goals to help me meet performance expectations … There were no surprises in this meeting or any other meeting during the time Fiona was my manager and Compass has been in use since 2015.[18]
[18] ATO Enterprise Agreement – 14 June 2017.
With respect to the Compass discussion, on 3 December 2018, Ms Mador stated, inter alia, as follows:
In the period between 5 November 2018 and 3 December neither LJ or [DBZQ] had made any mention to me, in person or by email that I was to undergo or undertake a further Compass conversation. I believe Compass was introduced in the ATO in 2015. Before this time, another performance development system was in use. In the tome since 2000 when working for the ATO, I had never been required to undertake more than two performance development reviews or mor than two Compass sessions per annum, the first to set the goals and the second to ascertain whether or not the goal set had been achieved … Because of my past experience a the ATO I was not expecting another Compass discussion so soon after my October 2018 Compass discussion … [DBZQ] opened the meeting by saying; I notice you haven’t got your goals in Compass’ … As.I sat and listened to what LJ said to me I felt disappointed, hurt ,offended and embarrassed. I recognised I was being what I considered to be performance managed. I thought it was being done with the intention of moving me out of the ATO’ (emphasis added).
In a supplementary statement dated 23 March 2021, in response to the statements submitted by DBZQ an LJ, Ms Mador denied or disagreed with almost the entire contents of both these statements.
Relevantly, with reference to the issues raised by DBZQ in the Compass meeting held on 18 February 2019, Ms Mador stated that:
‘I disagree that I was defensive and not receptive. I was shocked and surprised. I felt ambushed. I had no pre-warning of what was to be raised in this discussion. My mind was in turmoil. I do not agree that I tried to speak over LJ … I disagree that I asked for the phone records of other staff members. I was shocked, surprised and felt that I was being picked on. I said that if I was being accused of making these long, personal phone calls then [DBZQ] should show me my records in order to justify his assertion’
Ms Mador submitted two additional statements, dated 28 September 2021 in response to supplementary statements submitted by DBZQ and LJ, in which she again disputed relatively minor details in the two statements.
Oral evidence
In her evidence-in-chief Ms Mador informed the Tribunal that she is currently working at the ATO in the Strategic Case Management Team. She said that she had increased her hours from August last year, starting with six hours a week up to 20 hours per week in December of 2020 but, as the hearing was approaching, she reduced her hours and is now doing 15 hours per week over 3 days.
Cross examination – Day 1
Ms Mador was asked about her claim form, in which she had stated that she had been subject to workplace bullying that:
has involved ongoing pressure to leave the team I am working in either by transferring to another area of the ATO, or to accept a redundancy on the grounds that I am not updating to the changing work environment.
…
This type of the redundancy was first offered to me in May 2018.
After persistent questioning by counsel, Ms Mador finally conceded that, in fact, she had not been told that she needed to transfer to another area and that there never had been a formal offer of a redundancy.
Ms Mador was asked about her claim that ‘false allegations’ were made with regard to her behaviour in the workplace. She denied engaging in the alleged behaviours but in response to specific questions from counsel, Ms Mador agreed that, sometimes she ‘spoke in Croatian rather than English on the telephone’ while at the workplace, that the record of her times in TMS ‘may not have been 100 per cent accurate’, that she had ‘personal conversations in the workplace’ and that engaging with members of the team ‘is very much a matter of perception’.
Ms Mador also agreed that, if her manager had formed an impression that she was engaging in the ‘alleged’ behaviours it was fair of him raise this with her as well as in the context of Compass.
Ms Mador agreed that, in her claim form, she had stated she had first noticed her symptoms on 4 December 2018 but had not sought medical treatment until 11 March 2019. When asked why, when she requested a reconsideration of the decision, that her condition was suffered as a result of reasonable administrative action undertaken in a reasonable manner; she had taken issue with the Compass discussion on 18 February 2019 and claimed that ‘I first experienced symptoms of anxiety/stress in the workplace in April 2015 after I became aware of DBZQ’s complaint to Beata Talipski.’
In an unconvincing response Ms Mador denied, that she had changed the evidence, in order to get around the application of the reasonable administrative action exclusion and said that ‘I simply changed the date because I wanted to include other matters in my consideration.’
What followed was a somewhat lengthy unproductive exchange between counsel and Ms Mador, in respect of the apparent contradiction between her statement, in her request for reconsideration, that ‘it cannot be said that but for the administrative actions described I would not have developed my conditions’ and the claim she made in her formal complaint that ‘[DBZQ]’s and LJ’s conduct during the relevant period ‘has caused me much pain and suffering. It has affected my health to such a degree that I had to take sick leave and seek treatment’.
Ms Mador agreed that, nowhere in her claim form, had she raised any issue about prior history with DBZQ. However, she denied that the inclusion of the history of ‘alleged’ complaints made by DBZQ, in her subsequent statements, was just another endeavour of ‘backfilling information’.
When counsel referred to a copy of the ‘summary’ of the conversation on 27 September 2018, when Ms Mador had raised her past and present concerns about reporting to DBZQ as her manager, she was reluctant to approve FE’s version of the conversation and said ‘I did not ask Fiona to be my scribe. I did not know that Fiona was taking notes’.
When asked to consider the meaning of the final recorded comment in the summary, that is, ‘Ana – will and will have [DBZQ] present. Ana will not do he said she said she will involve him in a chat as well does not want to go behind his back. Speak to both together at same time [sic]’. Ms Mador said that it means that ‘if I have a complaint against [DBZQ] we will speak together’.
Ms Mador agreed that the comment was made in the context that she represented to LJ that she thought that DBZQ ‘wouldn’t be able to give fair feedback’. However, when counsel indicated to Ms Mador, that LJ had told the Tribunal, that the takeaway for her from this meeting was that ‘any feedback that was to be given from [DBZQ] to you would require her presence?’ Ms Mador replied: ‘I never said that to her’.
Ms Mador agreed that she had received a diary email invitation for a Compass meeting on the Monday 3 December 2018, that she received the invitation before the meeting, read the email before attending the meeting and clicked accept to put it into her diary. She also agreed that she was given an opportunity to reschedule if Monday did not suit and that DBZQ had stated, in the email, that LJ ‘had been invited to this conversation in support … of your role’ and that he had attached ‘my expectations for us to discuss’.
When questioned by counsel to explain the evidence in her statements, that she wasn’t given the ‘my expectations’ document before the meeting, Ms Mador, conceded, with some reluctance, that she ‘was aware of the document’ before the meeting. She also conceded that in Compass it is necessary for managers to discuss their expectations which would include ‘performance of duties and workplace behaviours’.
In further questioning Ms Mador made it clear that that she ‘took offence’ at some of the matters set out in the ‘my expectations’ document and that said that DBZQ chose to discuss those matters in the Compass program but was ‘not required to do it’.
When questioned about the Compass program as set out in the ATO policy documents, which included the requirement for at least four quarterly check-ins, Ms Mador stated that her past experience of only two check-ins per year ‘was common practice for everyone’.[19]
[19] Apart from a statement by FE as her approach to Compass there is no other corroborative evidence to support this claim- see par 116 below.
When counsel suggested that she wanted to have LJ present during feedback session with DBZQ Ms Mador said ‘No, it was agreed with LJ that that [DBZQ] and I would deal with our issues individually together and then if we couldn’t resolve our issues they would go to LJ.’[20]
[20] The evidence on this issue is unclear, however, there is no evidence that Ms Mador questioned why LJ was included in the conversation and no recorded objection to her presence.
Ms Mador agreed that she had never sought feedback from DBZQ as required by compass and said ‘he ignored me … it wasn’t possible for me … the tone of the relationship wasn’t such that I could go comfortably and do that’ and indicated that she believed that DBZQ would never give her a fair review. She said that, although she had agreed to work with DBZQ ‘but there was no interaction between us’.
When asked about the ‘my expectations’ document, Ms Mador indicated that it was not reasonable for DBZQ ‘to have the same requirements of all members of the team’ but denied that she expected ‘special treatment’ and referred to different types of work by different levels of officers.[21] Ms Mador claimed that the other EL1 officers did not receive the document but were made ‘aware verbally’. She also stated that she disagreed with the expectations because ‘they didn’t align with the high level of independence that we were supposed to work with’. On further questioning Ms Mador conceded that she was not treated differently from other members of the team.
[21] I note that the ‘my expectations’ document appeared to be directed at EL1 officers.
When asked about her reference to ‘reasonable administrative action’ in her witness statement, Ms Mador agreed that she had been aware of the relevant legal test before providing the statement and had taken it into consideration when preparing her statement but denied that her version of events ‘had been influenced’ by her understanding of the test.
Cross examination - Day 2
Ms Mador was asked by counsel to consider the Certificate of Incapacity provided by Dr Wong, dated 11 March 2019, in which he had noted the stated date of ‘injury’ as ‘Dec 2018’, which was inconsistent with the request for reconsideration where she had stated that she first experienced ‘anxiety/stress’ in the workplace in 2015. Ms Mador replied, ‘Yes, that was a different issue. I did not stop working at that time … I presumed the injury first being when I was no longer able to work, that was my understanding of my injury’.
Ms Mador then conceded that she had time off work during December 2018 as sick leave for a ‘chest infection’ and, after persistent questioning, agreed in the period from December 2018 to 18 February 2019 she ‘did not have time off work due to stress’.
Ms Mador was then asked to consider a Certificate of Incapacity provided by Dr Khan, dated 29 May 2019. Dr Khan had noted that he had been advised that ‘she has been inappropriately performance managed by her manager’, and then listed a series of alleged behavioural issues which Ms Mador said she vehemently denied and requested proof.
When counsel suggested to Ms Mador that the evidence shows that she was able to work until the meeting of 18 February without taking time off work or requiring medication ‘for any psychological symptoms’ she said, inter alia, ‘No … Things are not always how they appear … there was no need for me to address the issue of not being able to work, because I was already not working because I was sick … with a chest infection’.
In response to questions by counsel about the Compass meeting on 18 February 2019, Ms Mador agreed that, instead of responding to the concerns raised by DBZQ about her behaviour, by stating that they were factually incorrect and providing some explanation, she lodged a complaint, which consisted of a 101-paragraph statement calling on DBZQ and LJ to provide details of the complaint.[22]
[22] Counsel noted that in an email dated 30 May 2019, Ms Mador again requested personal details of other team members.
When asked about Compass, Ms Mador agreed that if there is an issue with an employee’s performance, including workplace behaviours, those matters are to be raised, in order to give the employee an opportunity to respond. However, when asked why she submitted the complaint, instead of responding at the meeting Ms Mador said, ‘I actually addressed those issues in Compass, and all my protestations were denied’.
When asked, Ms Mador agreed that the meeting of 18 February 2019, affected her to the extent that she sought medical treatment and needed time off work, and that this situation had not occurred prior that date.
Ms Lekie Johnstone (LJ)
Written Statements
Extracts of a statement, dated 9 April 2019, which appears to be a written response to Mador’s written complaint that was submitted in March 2019, are as follows, with emphasis added:
The employee has been in the Superannuation area since 2000 … within the Interpretive Advice area since August 2012 … reporting too their current team manager since 5 November 2018 … Executive Level 1 case manager……on a permanent part time agreement.
The employee states they have been subject to workplace bullying by me and their team manager [DBZQ].
The employee’s statement mentions a number of discussions with regard to transfer and redundancy, these discussions involved other parties … the employee did not acknowledge that there has been Superannuation Business Line communiques issued to all EL1 staff with regard to the voluntary mobility/transfer program and developing EL1 leadership.
The issue/s raised by the employee … around ‘transferring to another area of the ATO’, redundancy and ‘better value’ from EL1 staff have been discussed with the employee (and other EL1 staff) as reasonable workplace discussions in the context of the expectations of their role … and more broadly the more important role that EL1 leaders have in the organisation, a requirement of continuous capability development and the opportunities to share their expertise in another area … especially where the employee has undertaken the same or similar role for a long period of time.
In late 2018 (November - December) the Superannuation Business line launched two initiatives – the EL1 voluntary mobility program and the EL1 leadership development discussion groups.
On 22 November 2018 all EL1 employees in the Superannuation Business line received a communique launching the voluntary mobility program … The communique noted that if ‘you have been in your current role for more than three years we strongly encourage you to apply so that you have the opportunity to develop further skills and a broader understanding of our business’ … On 26 November, all EL1s who have been in their current role or a similar role for more than 3 years received a personalised email re iterating the above and strongly encouraged to take the opportunity to discuss further with their manager …
On 3 December 2018 … a check in discussion was held with the employee. The intent of the discussion was to check in with the employee about how they were managing the transition to o being imbedded into the Sydney team, any clarification required around their role … The employee was also provided the manager’s team expectation (workplace behaviours and administrative issues). In the conversation, the voluntary mobility program was discussed, along with any career aspirations … The employee enquired about transfer opportunities … The employee expressed their aspiration to be an Executive Level 2/Director level…..The employee did not raise any concerns with regard to their current role …
On 3 December 2018 … I facilitated a 30 minute telepresence with all EL1s to discuss the voluntary mobility program and the upcoming EL1 leadership program … The employee did not raise any issues/questions at the meeting or contact me out of session……the mobility program is voluntary and is in place to support EL1 leaders who would like mobility opportunities within Superannuation Business Line.
With regard to redundancy conversations, the employee correctly identifies that I have had brief conversations with them (May 2018 and 18 February 2019). The conversations were not offers, I made no offer to the employee … I have not placed pressure on the employee to accept a redundancy on the grounds of not adapting to the changing work environment. I asked the employee in both conversations if they wish to be given information about redundancy packages if they become available … I have not communicated with the employee about redundancy outside of the 2 conversations. I strongly refute the statements made by the employee that I am applying ongoing pressure to make the employee accept a redundancy … In the employees statement, they allege that when they responded that they were not interested in a redundancy … they were then informed by their team manager, that ‘they may not have overseas leave approved in the future’. This did not occur and there is no link between the 2 issues.
The employee is undertaking 3 months leave commencing in June 2019.The employee has been approved this leave for a number of years. The June 2019 leave was approved by their previous team manager and the current team manager has honoured the pre-approval
It is an organisational requirement to fully utilise and manage resources (at every level) to deliver our business commitments … there is a keen focus in the Superannuation Business Line on development at the EL1 level and ongoing leadership skills training to deliver the ATO objectives towards 2024. … In the Interpretive Advice area it is important to differentiate between the work activities/roles of APS6 complex case officers and EL1 technical case managers. In the employee’s previous role (senior technical officer), the entirety of their role was to provide technical support and it was difficult to differentiate between what the employee did and what was undertaken by their team members at the APS6 level. This has been a driver behind clearly identifying the scope of the role for EL1 technical case managers to ensure that the ATO fully utilise the expertise/level of the staff undertaking these roles.
There are 4 EL1 technical case managers in the area, 2 in Sydney and two in other sites. All of these employees have been in the technical case manager role at the same time as the employee, operating with the same role expectations. It is a reasonable administrative action and discussion to have with employees in regard to their role and expectations to ensure that our workforce is aligned with the ATO’s 2024 vision and that we are a high performing, responsible and professional workforce.
The allegation from the employee that they were directed by me to support their manager to act in a way that is not ‘technically legal’ is false and terms ‘not technically legal’ are the words used by the employee during the check in discussion on 18 February 2019 with me and the team manager. The employee referenced something that happened historically … This had no relevance or correlation with the topic I was discussing. I immediately stopped the dialogue … I informed the employee that I do not appreciate that they have used the words ‘not technically legal’ and that I would not direct anyone to do anything ‘not technically legal’ … The employee has made this serious allegation without providing any context or detailed explanation as to the conversation. The context of the conversation was to articulate the expectations of Executive Leaders. … The employee’s allegation is serious as it goes to the core of my personal and professional integrity and I strongly refute the allegation.
The employee states that allegations were made by the team manager with regard to their behaviour in the workplace … On 18 February 2019 during the compass conversation the employee was provided feedback from the team manager on the above workplace behaviours. The team manager has observed these behaviours and received feedback from other team members. I observed the employee as not receptive to the feedback, agitated and unwilling to engage in open dialogue about these matters. The conversation was terminated as the employee was very angry and did not want to continue the conversation. On each occasion that I attempted to intervene or halt the conversation or bring back to a constructive place, the employee spoke over the top of me.
The employee is aware of the workplace expectations (previously provided by the team manager and within the meeting invite of 18 February 2019) with regard to work breaks, absence from desk, leave requests etc. These are expectations for all staff, regardless of level. Bringing to the attention of staff members that there are areas that may require improvement are reasonable discussions that managers are to have as part of the holistic workplace behaviours and performance.
As a result of the above conversation, I called the employee at 3:00pm (QLD time) … to check in with them due to the manner in which the earlier meeting had ended. A brief summary of the conversation:
The employee felt that the team manager and I were trying to find anything we could to build a case that they were not coping. I stated that this is not the case or our intentions …
the employee noted that this is a conversation that you would have with junior staff … and not someone at their level and years of workplace experience. I informed the employee that expected workplace behaviours apply to all staff, regardless of seniority.
The employee stated that I should have stopped the conversation and I responded that I made a number of attempts to, but they had spoken over me.
The employee noted that the team manager should have spoken to them about the observed workplace behaviours separately and not in a meeting with me. I reminded the employee of their previous request (conversation 27/09/18) that if the employee was to be provided feedback (from there team manager) with regard to her performance or anything of this nature, that they would appreciate my presence or awareness.
I again informed the employee that when they are ready we can continue the conversation and it may give her comfort to have ATO people support present (and if they wish a support person). The employee declined the offer.
The conversation ended as the employee noted that they were not feeling up to speaking with me (feeling unwell) …
My observations are with regard to the employee’s behaviour and their ability to adapt to change. We are operating in an environment of continual change … and this has meant new work types, continuous capability development and innovative approaches to the way we do our work. Feedback provided to me by the team manager is that the employee has not been receptive to some of the operational changes and have been vocal about the changes within team meetings and other exchanges. This aligns with my personal observations when they have interacted with employee during site meetings/sessions. Executive level employees are expected to display leadership and contribute to a positive workplace culture.
…
My interactions with the employee have been mostly professional and there have been a number of times since I started in the director role (Mid January 2017), where we have respectfully ‘agreed to disagree’, especially with regard to innovative approaches to our work and the staff experience. I have observed the employee display behaviour that can make it difficult to engage in open and constructive dialogue. This behaviour was displayed during the conversation on 18 February 2019. The employee was not receptive to the team manager’s feedback and did not display a willingness to talk though the issues. The team manager was attempting to discuss their observations with regard to long personal phone calls, long tea breaks, long absences from their workstation and engagement with team members. The conversation leading up to this point was amicable; it was only when the manager sought to provide feedback that the engagement with the employee started to break down.
…
The employee’s interactions with team members has been brought to my attention … team members found it difficult to engage the employee in constructive discussion about case/s matters as the employee was not allowing team members to provided details or expand on issues … the employee interacted in an angry tone and in a combative manner.
On 24 September 2018 the employee was informed (along with another EL1 team member) of a change to their reporting structure … The employee was informed that they, along with 2 other team members located in the Sydney office, would be reporting to the Sydney site manager and working within the Sydney team. The employee in this conversation requested a separate conversation with me to discuss the reporting arrangements.
On 27 September 2018 a teleconference meeting was held at the employee’s request. In attendance was me and the employee’s team manager at the time (FE). The employee spoke of an alleged incident that occurred in 2013 involving another party [DBZQ] when they worked in the same area. I cannot confirm the factualness of the employee’s allegation as the matter was not formally investigated … it was not informally resolved with the other party … and it is uncorroborated … the other party has never mentioned this alleged event to me; therefore there is only the employee’s version of events.
I enquired with the employee about their motivation to provide me with this information … the employee noted they wanted to highlight to me their past experience and to ask that if there was to be any feedback from the manager with regard to their performance, they would appreciate my awareness or presence in conversations.
In late November 2018; a tailored approach to how work is allocated to the employee has been implemented. This is as a result of observations and interactions in the workplace (team manager and national workflow allocator) when the employee is allocated work. On 28 November 2018, in an email of the same date … the employee questioned why certain cases were allocated to them and who should be allocating cases to them. The employee makes reference to 2 other employees and enquires in their behalf as to how their work would also be allocated. The work allocation of other employees is the role of the team manager … the employee is allocated their work directly from the national work allocator (EL1 based in Hobart).
Due to my location (based in … Brisbane), I have not observed the workplace behaviours … these are the observations made by the team manager on site. These observations have been made from maintaining notes and feedback received from other team members.

In an unsigned document titled 3/12/18 – ‘check-in’ conversation-discussion summary which appears to have been written LJ, it is stated, inter alia as follows:
The intent of the conversation was to check in with the employee about how they were managing the transition since been embedded within the Sydney team … In the meeting invite the employee was also provided the manager’s expectations around workplace behaviours … I spoke briefly about the voluntary mobility program, highlighting the key messages … the employee noted that they would like experience in another area of the organisation … I noted that they would need to register on the corporate mobility program … the employee mentioned they would be interested in an EL2 role and as an action item the team manager would enquire with Superannuation workforce area about upcoming opportunities for recruitment or higher duties[23] … the conversation with the employee was very positive and conducive to 2 way dialogue …
[23] In an email to Ms Mador dated 4 December 9:54 am from DBZQ: Hi Ana Following our Compass conversation yesterday, I have been advised that they are looking at advertising the EL2 EOI in February, so no one is disadvantaged from being on leave over the Christmas period Kind Regards
In an unsigned document titled 18/2/19 – ‘Compass conversation which appears to have been written LJ, it is stated, inter alia, as follows:
Summary of conversation: The employee’s overall performance was discussed … I raised with the employee opportunities to represent the ATO … at external events … The employee was asked if there was anything further they need with regard to support … I raised with the employee that there may be redundancy packages in the future … I raised with the employee that as Executive level leaders; it is my expectation that they will support the broader management team … There was brief discussion with the team manager on the employee’s approved leave … The conversation then turned to observations by the team manager of the employee’s workplace behaviours … The employee was very defensive and not receptive to receiving feedback or engaging in an open dialogue. I attempted to intervene on a number of occasions, but the employee repeatedly spoke over me … Due to the employee’s reaction, myself and the team manager informed the employee we could continue the conversation at a later date with ATO people support … The conversation ended as the employee did not wish to continue …
Extracts from a written statement, dated 9 November 2020, provided by LJ in response to Ms Mador’s statement of 14 February 2020, are as follows:
I am employed as the Director of Interpretive Advice (IA) in the Technical Leadership and Advice branch – Superannuation and Employer Obligations of the Australian Tax Office ATO). I started working for the ATO in October 2000 and commenced working in my current role in January 2017. I have been Ana Mador’s Director since then. … From 2017 to late 2019 the IA teams were located in 3 main sites: Hobart, Upper Mt Gravatt[24] and Sydney. Since joining the area, I have focused on integrating the Sydney site within the broader team environment … Since March 2017, the area has been implementing changes to improve our efficiency … As part of a review, consideration was given to the viability of maintaining a separate Senior Technical Officer Unit comprised of 12-14 team members, in light of an ongoing reduced case officer workforce. The unit was made up of 5 EL1 officers and 8-10 APS6 staff. At the time of the review, members of the technical unit were located across three sites and reported to a manager based in Hobart. There were 4 senior technical officers located at Sydney … their duties involved providing technical support to team members across the 3 sites. They were not exclusively a Sydney technical support team. The review outcomes included embedding the technical support (and staff) within the teams in line with comparable areas within the organisation. In addition to providing technical support … the employees would also undertake case work. This was how the Superannuation Interpretive Advice area operated previously and also reflected work practices in place for comparable areas providing technical advice. This change was implemented in November 2018.
[24] Queensland.
…
In May 2018, I had brief conversations with Ana and other staff members with regard to possible redundancies. These conversations did not include offers of redundancy, but were used to gauge interest in possible offers if any were to be made … Ana noted her preference for a ‘bona fide’ redundancy …
On 24 September 2018, I attended a meeting with Ana, another EL1 Sydney team member, [DBZQ] and Fiona … Ana was informed that she and two other team members located in the Sydney office would be reporting to [DBZQ]. Ana made a request to have a separate conversation with me to discuss the reporting arrangements … Fiona and I explained that the changes were not a simple ‘lift’ and shift and that Ana and the other Sydney team member would not be doing exactly what they were currently doing (which was spending 100% of their time providing technical support to case officers). We explained that they would continue to do this but would also provide technical guidance to clients … they would spend more time on case work. Ana noted that she had been through change a number of times within the ATO … so change was something she was comfortable with … I did not inform Ana or any other staff member that I wanted them to leave … The issues raised by Ana in her statement with respect to engagement, transferring to another area of the ATO, considering her options, and ‘better value’ from the EL1 staff were not the focus of the discussions. In any event, voluntary mobility and utilisation of all our staff, at every level, have been discussed with Ana as reasonable workplace discussions in the context of the expectations of her role and functions …
On 27 September 2018, I attended a teleconference with Ana and Fiona. The meeting was held at Ana’s request … Ana raised an incident in 2013 … Ana alleged [DBZQ] provided feedback to another manager in the area about the rude manner in which Ana had spoken to an interacted with him … An advised she did not formally report the matter or seek any resolution with the management team on [DBZQ] . I note [DBZQ] had never mentioned any rude interactions or previous incidents with Ana to me … I asked Anna what resolution she was seeking. Ana explained she wanted to highlight her experience and to ask that if there was to be any feedback from [DBZQ] with respect to her performance she would appreciate my awareness of or presence in the conversations. I told Ana that [DBZQ] had been undertaking his current role for short period of time … I informed Ana that she could contact me at any time if she has any concerns or issues.
After the meeting on 27 September, I had discussions with Fiona about integrating technical support and the staff members into teams. Fiona commented it was difficult to remotely manage Ana and the two other staff members. Key factors included a lack of visibility about how the staff members were operating each day … and following her directives … Another issue was that Ana and the two other staff members predominantly provided technical support to the Sydney team, as opposed to what was required of them which was to provide technical support to all staff members across the three sites. Therefore, from an efficiency perspective, it was recommended by Fiona (and I agreed) that Ana and the other staff members should report to a manager on site.
In early November 2018 Ana and two other technical officers were embedded into the Sydney team.
On 20 November 2018 … Ana engaged me one-to-one at her desk in conversation where she raised concerns about the new approach to technical support. Whilst I am comfortable with receiving feedback and engaging in open dialogue, some other team members within the vicinity told me they were uncomfortable with the tone Ana was using and the manner in which she spoke to me … some team members raised this with [DBZQ] and [DBZQ] raised this with me. I assured [DBZQ] that I was fine … During our conversation at her desk Ana raised some concerns about certain staff providing guidance to other officers and providing advice … As a follow-up to the conversation … I asked [DBZQ] to organise a quick catch up in a meeting room with Ana and to two other team members, who might have had similar concerns … At the meeting Ana raised concerns about the recently implemented quality assurance/technical support work practice … much of it was about the capability/ skill level of the Sydney team and Ana’s workload …
On 22 November 2018, all employees in the Superannuation Business Line received a communique, launching the voluntary mobility program … provided an opportunity to further develop their capabilities … The communique noted that ‘if you have been in your current role for more than three years, we strongly encourage you to apply so that you have the opportunity to develop further skills …
Compass is the name of the ATO’s performance framework for employees … It is based on the principle that performance conversations are most valuable when they are ongoing and development focussed, not a twice a year review. Compass is made up of four key elements:
(a)The first is the focus on productive relationships between employees and managers, so employees can in check-ins and have a good two-way communication
(b)The second is regular check-ins … where employees share feedback and discuss a range of topics with their managers … Employees are required to have structured and in-depth formal check-ins at least quarterly, supported by more informal every day check-in
(c)The third element is clarity and purpose to help employees know and understand what is expected of them and their team
(d)The fourth element is progress …
On 3 December 2018, a Compass check-in discussion was held with Ana. I attended with [DBZQ] in light of Ana’s request in September 2018 that I be present or aware … Given that Ana had recently transitioned into the team, it was a good opportunity to touch base. Whilst Ana may feel that more preparation time would have been beneficial, she was assured by [DBZQ] that after the conversation should updated Compass to reflect discussions about goals and expectations … during the check-in Ana was provided with the manager’s team expectations regarding workplace behaviours and administrative issues … The workplace expectations document was not intended to elicit an emotive reaction from Ana … Ana did not raise issues or concerns at the time … the voluntary mobility program was discussed … Career aspirations were also discussed … my recollection of the conversation is that it was a very positive and conducive two-way dialogue. I did not pressure Ana to leave the area, and at no time was Ana criticised for not having prepared or considered her goals/aspirations.[25]
[25] See supra paragraph 79.
On 5 December 2018, I received a capabilities self-assessment review for my action in ESS from Ana. I emailed Ana to ask why the review had been submitted to me, given she now reported to [DBZQ]. Ana responded that as [DBZQ] had only been her team leader for a month, it would not be fair for him to review the self-assessment. I replied and told Ana that I would ask [DBZQ] to discuss the review with her previous manager, FE. My recollection is that [DBZQ] and FE did discuss the self-assessment.
On 18 February 2019, I attended a Compass check in discussion with Ana and [DBZQ] which commenced at 11:30 am and carried over to as second session commencing at 1:00pm. I attended by telepresence. Due to the high demand for telepresence rooms, it was difficult to obtain bookings for the same e room, therefore the second session was delayed due to room availability.
To my recollection, the first session covered these topics:
(a)… overall performance. I provided feedback to Ana that her technical expertise was of a very high standard. I also pointed out that performance is considered holistically and there are a number of factors, such as workplace behaviours and expectations of Executive Level leaders that are considered.
(b)I raised opportunities for Ana to represent the ATO … including representation at external events … I asked [DBZQ] to highlight these opportunities when they became available … Ana appeared receptive to this.
(c)I spoke to Ana about leadership attributes …
(d) Ana was asked if there was anything further she needed with respect to support. Ana did not raise any issues …
(e)I raised with Ana that there may be redundancy packages in the future. This was following her May 18 Requests to be informed of any upcoming packages. … I have not communicated with Anna about redundancies outside of this conversation and the conversation in May 18.
(f)I asked Ana how she was feeling because she sounded as if she had a cold /respiratory issue.
(g)I raised with Ana that it was my expectation that as an Executive Level leader, she would support the broader management team leader in leading and managing change
(h)Ana made the comment that I was asking or directing to support [DBZQ] in doing something ‘technically not legal’. Ana refenced something that happened historically … potentially 5 or 6 earlier. I thought this comment had no relevance to or correlation with what I was discussing.
(i)I immediately stopped the discussion and informed Ana that she had clearly misinterpreted or misunderstood what I was saying …
(j)I did not use the term ‘not technically legal’ and clearly expressed my dissatisfaction to Ana …
(k)I reiterated to Ana that we were in an environment of continual change and she was part of a wider leadership team …
(l)…
(m)I feel that Ana has overreached with her allegation and it is not appropriate for her to make it. Ana’s statement unfairly seeks to paint me in light that brings into question my professional standing and integrity … she has no evidence to substantiate her statement. I am aggrieved by her allegations.
(n) In the IA area we act in accordance with corporate policies that are in place to ensure the integrity of our work, our people and our organisation …
(o)There was a brief discussion with [DBZQ] about Ana’s approved leave of three months commencing in June 2019 … Ana was informed all leave requests are discussed and considered in line with business needs … [DBZQ] reiterates that all leave requests, especially for long periods, would be considered each year.
(p)Ana has stated that if she did not accept a redundancy then any future leave would not be approved and she may have to resign from the ATO. I strongly reject Ana’s allegation; no such threat or pressure has been placed on her and I have never made any link between the two issue of redundancy and future leave approval …
(q)Ana was approved to Take three months of leave commencing in June 2019. This length of leave has been approved for Ana for a number of years. The June 2019 leave was approved by her previous manager in October 2018, and [DBZQ] honoured the previous approval …
The second session covered these topics:
(a)The conversation turned to Observations by [DBZQ] of Ana’s workplace behaviours. These included engagement with staff, time management, long absences from the workplace, long personal phone calls …
(b)I note the IA area is client facing and expectations for Ana’s role and the operational requirements are based on service standards and undertaking case management …
(c)Ana was very defensive and not receptive to receiving feedback or engaging in an open and constructive dialogue. She did not display a willingness to talk though the issues. [DBZQ] was attempting to discuss his workplace observations. I attempted to intervene on a number of occasions but Ana repeatedly spoke over me. Ana stated that she would not engage with team members who did not engage with her. The conversation with Ana leading up to this point was amicable. It was only when [DBZQ] sought to provide feedback about workplace behaviours that the engagement with Ana started to breakdown. To reiterate … it was Ana’s request in the conversation of September 2018 that if [DBZQ] wished to raise any concerns with her performance that I also be in attendance.
(d)Ana stated that during long breaks at work, she and other team members on the same breaks would discuss cases. I told Ana she had to be mindful about where she had these conversations.
(e)[DBZQ] then tried to broach the subject of Ana’s long and loud personal phone calls. At this point, Ana was quite angry and demanded the phone records of all other staff members to make a comparison. I told Ana this was not necessary … as the observation was about her actions and working with us to address it.
(f)Due to Ana’s reaction, both [DBZQ] and I told Ana we should continue the conversation at a later date with ATO support and a support person if required this …
(g)The conversation ended as Ana did not wish to continue and I thought it best to end conversation as she was in a very agitated state.
Later in the day on 18 February 2019 at approximately 4.00pm, I called Ana to check-in … Ana told me that she felt [DBZQ] and I were trying to find anything we could to build a case that she was not coping. I stated that this was not the case or our intention … Ana told me I should have stopped the conversation and I responded that I made a number of attempts, but she had spoken over me. Ana said [DBZQ] should have spoken to her about the workplace behaviours separately and not in a meeting with me … I reminded her of her previous request … I again told Ana when she was ready we could continue the conversation.
In addition to the difficulties observed during the 18 February 2019 Compass check-in, Ana’s interaction with team members has been brought to my attention. In interactions prior to her extended sick leave, it was reported to me that team members found it difficult to engage Ana in constructive discussion about cases/matters as Ana was not allowing team members to provide details or to expand on issues, often speaking over them. Ana reportedly interacted in an angry tone and in a combative manner, and her behaviours reportedly impacted on other staff members.
…
Feedback provided to me by [DBZQ] is that Ana has not been receptive to some of the changes at work and has been vocal about the changes within team meetings and other exchanges. This aligns with my personal observations when I have interacted with Ana during site meetings/sessions … I strongly reject the statements made by Ana that the interactions and conversations that have occurred with her are collectively part of a targeted approach to apply pressure to accept a ‘non bona-fide’ redundancy or to make her leave the area. … The allegations and overreaching statements made by Ana are unsubstantiated and strongly reject them as a targeted attempt to undermine my professional and personal integrity.
LJ submitted a supplementary statement, dated 30 July 2021, in response to the additional statements submitted by Ms Mador, R. Tesoriero (RT) and FE.
Relevant extracts of LJ statement are as follows:
Further statement of Ana Mador dated 23 March 2021
P4-5:[26] … Ana did not raise any concerns in that meeting about complaints previously made by [DBZQ] in the period from November 17 to February 2018 … the only concerns raised by Ana about [DBZQ] in the meeting were in relation to what occurred in 2013 or 2014 which Ana says was disclosed to her BT in 2015 … I am not privy to what [DBZQ] has said about what Ana says she was told by BT … he has not spoken to me about any previous interactions with Ana (and nor have I spoken to him about my conversation with Ana on 27 September 2018) … I had asked Ana if she wanted to report directly to me and not [DBZQ] if it would put her mind at ease. Although that was not my preference, it was Ana stated that she would leave it that she would be reporting to [DBZQ] … A key takeaway with the conversation was to provide her feedback during that meeting was that Ana would appreciate my presence or awareness if [DBZQ] was to provide her feedback about her performance or anything of that nature …
[26] Ms Mador’s Statement 23 March 2021: Meeting on 27 September 2018.
P11-15[27] … I simply do not agree with Ana’s narrow view of the changes, as she was highly focussed on pointing out that she did not agree with certain people being given status of subject matter expertise … Ana had a very narrow focus of the work undertaken by the area and lacked awareness of the many topics and breadth of work undertaken by our entire work area spread across 3 sites … I also disagree with Ana’s statement that I said words to the effect ‘you are not in the position to judge that’. I used the words ‘I have confidence in the skills of our case officers’, and I said that two her at least twice during the conversation. Even though I wanted to stop having this conversation she kept going and was getting louder and louder and it caused me embarrassment for her to openly make the comment “fixing peoples mistakes all the time’ – I found this to be a highly negative comment to make about the people who work with her on site … I also dispute Ana’s account of the discussion in paragraph 15 regarding concerns about the different functions and service standards.
[27] Ibid: November 2018 – Discussion with LJ.
…
Ana lacked awareness of the workload pressures that existed at that time, which was around case output and not technical support. One of the key drivers behind the change was to build the capacity/level of case officers and this was achieved through reducing the level of resources in a ‘stand alone’ technical support unit.
P20-32[28] … Compass is more than just a structured performance and appraisal process and it is certainly more than two meetings per year, such as those that Ana had with Fiona in May and October 2018 … I also refer to my earlier comment with regard to Ana’s leave period (June to September 2018) which obviously did allow for any Compass discussions during that period … Ana would have been well aware of the Compass process and, in particular, the regular flexible and two-way nature of the check in conversation which were not limited to discussions about just performance of development or goals … As I have stated previously, the check-in discussion with Ana on 3 December 2018 was held in the context of the new national team having commenced in November 2018 and the change in the reporting structure. I do not understand Ana’s objection to the meeting being held in that context. In do not recall that [DBZQ] opened the discussion in the manner that Ana has stated at paragraph 27 … the meeting took place by teleconference not videoconference as noted in Ana’s statement. In relation to paragraph 28 … Ana was not being “performance managed’ then (or at any time since then) … the discussion was about opportunities and support for her. I maintain that discussions were positive and far from Ana appearing ‘disappointed, hurt offended and embarrassed, I was pleased that Ana had expressed her career aspirations … I am very surprised by Ana’s statement at paragraph 30. I reiterate that she was not being performance managed and nor was she being counselled about her conduct … as far as I was concerned there was nothing in the conversation that would give Ana cause to think that she needed a support person and Ana did not say anything to suggest that she thought she needed one at that time.
[28] Ibid: Compass discussion – 3 December 2018.
P33-38[29] Ana has made some statements about the capabilities self-assessment with which I disagree … Ana was not required to undertake self-assessment in order to register on the Mobility Register … the email conversation I had with Ana on 6 December 2018 as to why she had sent the self-assessment to me instead of [DBZQ] occurred before I spoke to Fiona … I maintain that it was Fiona who said that Ana had overrated herself in her self-assessment … the reason for the rejection of the self-assessment had nothing to do with the rating Ana had given herself but because there was a refresh of the capability self-assessment process. I did not speak to [DBZQ] or Fiona about that … I did speak to someone from Workforce Capability who asked me to hold off on approving the self-assessment as there was work in progress to develop a Business Line specific capability profile … I did not have any conversation with Fiona about rejecting Ana capability self-assessment … I refer to my email dated 7 January 2019 and Ana’s subsequent email which reads ‘no problem LJ’ (emphasis added).
P39- 55[30] the check-in on 18 February 2019 was held in the context of Ana having commenced in the new national team in November 2018 and the discussions were aimed at checking to see how Ana had been going and continuing to support her through the transition as well as to ensure she was undertaking her role as befitting of an EL1. All of that is consistent with the Compass process … I do not consider that there was anything unusual about the invitation for Ana to attend the further meeting … Ana did not express any ‘surprise’ at having been invited or that it was ‘unexpected.’ Ana also did not share with me at any time that she had a ‘bad feeling’ or that she was ‘very concerned’ about the meeting … Nor did Ana raise any concern after the meeting had started that it was ‘not Compass after all’ as stated paragraph 42, and I do not understand why she would thought it was ‘simply an informal catch up’. It was quite clear from the invitation that it was a Compass check-in. I also believe I also confirmed that at the outset …
[DBZQ] did raise his view that Ana was not integrating into the team, as stated in paragraph 44 … However, Ana did not respond in the way she has stated.[31] It is a perception that she seems to have about her level of expertise relative to others, which is not accurate and does not recognise the technical strengths of others in the team or the technical /subject gaps that she or the other two team had [sic]. This is not a negative comment on the capability of the other two members, rather a fair assessment of the expertise spread across the entire IA workforce member.
In relation to paragraphs 47 and 46 … I did not ask whether Ana was interested in a redundancy as such, but rather whether she remained interested in being informed about any redundancy packages that may have been coming up … As for paragraph 48 … I do not agree with Ana that [DBZQ] ‘interjected’ or that he raised an issue about approval of her leave in response to a discussion about possible redundancies … we were well aware that Ana’s leave had already been approved … the way Ana set out the discussion on 18 February 2019 in her statement suggests that the intention was to raise issues with her performance or regarding approval of her leave as a means of forcing to leave our team or leave the ATO. That is not what happened at all.
Statement of Fiona Elliot (FE) dated 23 March 2021
Fiona’s notes of the meeting on 27 September 2018 do not suggest that Ana raised any concerns about [DBZQ] other than in the context of what she was told by BT in 2015 … FE’s summary of the conversation is consistent with my recollection and it was the basis on which I took Ana to want me to be present in any performance discussions with [DBZQ] … I reiterate the comments that I made in paragraph 21 of my statement dated 9 November 2020, in that, I had a conversation with FE about the difficulty of remotely managing Ana and the other two staff members.
FE’s comment that Compass discussions would be held twice a year is surprising, as it is not consistent with the process. Compass discussions, even formal discussions, should regular than that[32] … also, the process is not as rigid as she has suggested in terms of what is discussed … the fact that FE may have held performance and development discussions in such a fixed manner probably reflects her management style … Managers will obviously have different styles but the Compass process is the foundational base on which we operate … While I appreciate that FE provide advances notice to her team members about Compass conversations, my observation is that these conversations have been structured to align with a more formal approach of a conversation at the beginning of the year and then at the end of the year.
FE statement also suggest that it was unusual for me to be part of Compass discussions or that my attendance meant that there was some issue with the particular team member’s performance. I was very cognisant to support all staff members with the change in work and the change in structure, in particular when managing staff that may find it difficult to manage or adapt to change. My observation of Ana is that any manager would find it difficult to provide feedback to Ana and her receptiveness to receiving feedback. I am also surprised that FE would make the statement that it would that it would be unusual for me to be present in the conversation, in light of her attendance and knowledge of the 27 September 2018 conversation.
I do not agree with FE’s comments … that Compass is not an appropriate time to discuss observations and also raise issues around performance … performance is holistic and also includes workplace behaviours. Conversations with regard to expectations at the EL1 level, leadership attributes, engaging with team members and being cognisant of workplace behaviours are reasonable workplace discussions. … from my observations of Ana’s reactions, it would be difficult to have these conversations with her at anytime. … I have received feedback from previous managers about Ana’s performance, especially with regard to her overtaking team meetings, being forceful wither views/opinions …
[29] Ibid: 5 December 2018.
[30] Ibid: Compass discussion: 18 February 2019 - First Meeting.
[31] ‘I replied, That’s not true. We are talking together about cases sometimes because we are dealing with complex cases. Most of the other officers aren’t sufficiently skilled to do the case we do. So how can I consult with them and how can they authorize my cases’.
[32] ATO policies: Compass check-ins and feedback: ‘You are required to check-in with your manager at least quarterly to meet the requirements of the ATO Enterprise Agreement …’
Oral Evidence

In her evidence-in-chief LJ confirmed that, in the meeting on 27 September 2018, when Ms Mador had raised concerns about DBZQ, she asked her what resolution she was seeking. She also confirmed that her take away from the meeting was that Ms Mador would like her to be aware or present in any conversations about her performance and that LJ should be included in any Compass conversations about performance.
LJ confirmed that, in that meeting, she had raised with Ms Mador her expectation that as an ‘executive level leader’ she would support the broader management team and her team leader in leading and managing change.
LJ also confirmed that at no stage did she offer or pressure Ms Mador to accept a redundancy.
Cross examination
LJ confirmed that in May 2018 and February 2019 she had conversations about possible redundancies with several members of the IA team, including those who had expressed interest in being informed when redundancy was being offered.
LJ stated that, in May 2018, she had approached Ms Mador to see ‘whether or not she wanted to be provided with any information in respect to what could be potentially upcoming redundancy packages’. LJ explained that, when she became aware that the ATO may be making redundancy packages available, she recalled a past and passing conversation with Ms Mador which triggered her to make contact.
In response to persistent questioning by counsel LJ agreed that, in May 2018, there were no redundancies on offer to members of the Sydney IA team, and re-emphasised that she had not offered a redundancy to Ms Mador, but simply wished to gauge her interests in being informed about future redundancies.
LJ was questioned at length about a conversation with Ms Mador on 20 November 2018 which I found unhelpful and do not intend to document.
In response to various questions by counsel in respect to Compass LJ stated, inter alia, as follows:
Compass is a performance framework … opportunity to provide and engage in that two-way feedback, and if things are topical and they’re emerging, the opportunity to discuss it openly … If you have a look at the overall performance framework around Compass there are those components around … your work outcomes … workplace employees’ behaviour. There’s about four elements to it. So the employee’s behaviour is things around … those APS values … behaviour attributable to, say, someone at an EL1 level, behaviours around positive workplace behaviours and ensuring that we're all adhering to that, building it, influencing.
When asked about the Compass check-in discussion, on 3 December 2018, with DBZQ and Ms Mador, which LJ attended by telephone conference, she agreed that that the conversation was ‘very positive and conducive’ and said that ‘she was very pleased that Ana was speaking about career aspirations’.
When asked about the Compass check-in discussion on 18 February 2018, she agreed that, when the conversation turned to observations by DBZQ, he did provide specific examples of the behaviours and that he had previously told her that he had observed these behaviours and was concerned about them.
In response to a question from the Tribunal, whether she would normally expect issues about workplace behaviour to be raised in a Compass meeting, LJ stated as follows:
Yes … if an issue is emerging Compass is a good opportunity to raise those issues and try to have that conversation. That doesn't mean the person is being performance managed, it's providing the feedback so you can have that open dialogue and hear from each other's point of view, and then hopefully come to a plan of how you could address that, or everybody's concerns are taken into consideration, and then be able to move on. So, it’s an opportunity to actually raise it and then, sort of, work out how to progress it and deal with it? --- Correct
When LJ was asked whether, when she was going to have a Compass meeting with somebody that she supervises, before the meeting, does she personally give them an outline of what it is to be discussed in the meeting? -- she said ‘Some managers or some people may do that. Sometimes it may be as simple as, 'We're just going to have a general conversation, talk about your goals’.
When asked about her own practice LJ said:
My personal practice would be to, you know, with the Compass, when I'm having a conversation, ready for a conversation with those that report to me at the executive level, leadership level, is just, "It's time for our Compass conversation, time for us to self-reflect, you to self-reflect on where you are at this time of the year, anything specific you would like to raise with me, please let me know beforehand and let’s talk about how you're tracking.
When asked, if she was going to give one of her subordinate’s feedback about their behaviour in the workplace, would she flag this with them before she undertook the meeting? LJ said, ‘No … I’ve never had cause to do that …’
When asked whether DBZQ had a conversation with her prior to the meeting telling her that he was going raises concerns about Ms Mador’s behaviour in the workplace LJ said, ‘I can’t recall’.
When asked whether the issues raised DBZQ in the meeting were based on his observations of Ms Mador's behaviour or a combination of his observations and what he had been told by other team members, LJ said ‘My understanding is that these were predominately his observations and any feedback that he'd received from team members’.
When asked if, when DBZQ raised the behavioural issues with Ms Mador, she could recall him making any suggestions to Ms Mador about how she might address these behaviours LJ said – ‘From my observation of sitting in a teleconference room in Brisbane with [DBZQ] and Ana's reaction, is that trying to get to a point where we could have a conversation about how to address this, it wasn’t going to occur in that point in time.’
At that time the Tribunal intervened as follows:[33]
SENIOR MEMBER: Can you explain why you think that was happening?---
It was a conversation that was going backwards and forwards between the two of them. And voices were being raised. So, I think that there was to be frank and honest from where I was sitting, it was getting heated up, and I was agitated, and that's reaching a position where they could sit calmly, talk through the issues, try to find ways to address that, wouldn’t have occurred in that point in time.
It sounds … like it was not possible to come to an amicable circumstance where there could be meaningful discussion about how to change one's behaviour or do different things. Is that a fair comment? --- It is at that time and I did try to interject so that I could try bring it back to something calm. But that wasn't going to be possible.
Were you surprised by what happened?--- I was surprised because of the fact that they're both executive leaders in the organisation and I have expect - I think on - I'm not saying that it's entirely one way, I would expect that both of them would have displayed a lot more emotional intelligence.
[33] Transcript of Proceedings (8 December 2021) 210.
In a follow-up question by counsel as to whether that there was anger and arguing displayed by both DBZQ and Ms Mador, LJ said ---I don't know if I could categorise it as anger. I think that from where I was sitting, Ana was not receptive to enabling [DBZQ] to speak or to finalise sentences.’
In re-examination, LJ confirmed that during the Compass conversation, when DBZQ started to provide feedback about her behaviour, Ms Mador was ‘getting agitated’ and her interjections, ‘to a great extent’ stopped him from providing the feedback. She also confirmed that when DBZQ raised the issue of her long ‘personal phone calls’ Ms Mador, instead of answering him, she demanded the phone records.
Statements of DBZQ – IA Team Manager
Extracts from a written statement provided by DBZQ, date 12 November 2020 are as follows, with emphasis added:
I make this statement to respond to a statement mad e by Ana dated 14 February 2020 … I was previously Ana’s manager … between 2010 and 2011… I am unaware of any events in 2015 as alleged by Ana in paragraph 8 of her statement. I never raised any work -related accusations against Ana, nor was anything brought to my attention. Nor was I aware of what someone else told Ana in this regard …
The Interpretive Advice area is committed to the ATO Vision of continuing to focus on improving both client and staff experience. In 2018 we undertook a number of changes to ensure that we achieved this objective … Prior to integration, Interpretive Advice teams were divided into case officers, who undertook case work, and Senior Technical Officers (STOs). The STO unit was a ‘stand alone’ team and had members from across all the sites. As part of the integration, all STO members (with the exception of three team members) were embedded into teams as senior/complex case officers. There were three members of the STO team (Ana and two others) located at the Sydney site. During the process of developing the integration plan, Ana was very vocal in expressing her dissatisfaction with the new structure …
On 1 November 2018, the national Interpretive Advice team commenced. Following the integration of the teams and as a result of the change in roles, we developed a job description and expectation statement for EL1 complex case officers.
On 5 November 2018, I organised a “hello and welcome’ … As only Ana and one other was available … I held the meeting over until 12 November 2018 Ana was present at this meeting this was another opportunity to have Ana engage with us and the process, discuss any concerns and … an opportunity to provide feedback. The meeting was met with hostility and anger from Ana, and a lot of accusations about the management structure that devised this idea. Ana was very vocal about her disagreement with the changes. Comments such as ‘this change is stupid’ were articulated.
On 20 November 2018, I observed that Ana was in discussion with LJ for over an hour about integration and changes. The conversation appeared very pointed from Ana’s end and the floor could hear the and the tone taken by Ana. Ana got very angry and shouted at LJ … Some staff members actually felt uncomfortable … and walked away from their work stations …
Pursuant to this, LJ the other two STO and I had a meeting that went for two hours … Case work and case allocation was discussed and LJ and I reiterated our expectations of the EL1s … Ana always made it clear that she would not undertake certain work, including interpretive guidance work, as she believes it is a waste of her skills and she has also resisted Ministerial and Complaints work. As a result of conversations after the meeting, I requested that Ana’s work be allocated directly by the allocation team, due to resistance I received from her when seeking to give her new cases … In Late November … a new National Workflow Allocation team was established … the matter raised by Ana about case allocation was resolved.
On 3 December 2018, with LJ also attending, I held a Compass conversation with Ana. In the calendar invite, and at the meeting, I provided Ana with a list of expectations. The job requirements and ‘My expectations’ documents were tailored to staff according to their APS/EL level and attached to their Compass … The My Expectations document was generic and set the role and expectations as Ana was a new member of my team under the new structure. It was in no way intended to make her feel insulted or humiliated … We explained what the documents were designed for, and state that Ana’s assertion of micromanagement was incorrect. Ana’s question about alerting her manager if she is away for desk for an extended period was answered in the same manner and other staff … Anna was not happy about this … she linked her ability to undertake complex work not matching the ‘My Expectations’ document. We advised Ana that the expectations of an EL1 as a leader is not restricted to case activity … As we left the room, Ana was very angry. There was no conversation after the meeting at all. I asked her if she was okay and she did not reply to me….
On 5 December 2018, Ana undertook a capabilities self- assessment and sent this to LJ for approval. LJ asked me to liaise with Ana’s previous manager, Fiona, and determine the accuracy of the assessment. Fiona was very clear that Ana had overrated herself in a few categories and the ratings should be lowered accordingly.
On 18 February 2019, again with LJ attending a Compass check-in discussion was held with Ana … we raised the issue of integration and Ana rejected the assertion that she was not integrating into the new structure and team. … She said that she only engaged with the previous STOs as they were the only ones who want to approve her cases (and nobody else), so there was need for her to engage with anyone else. We also discussed Ana’s yearly 3-4 months during the Croatian summer. We were setting expectations, including that (as per ATO policy) no travel arrangements without first seeking formal approval.
As LJ attended by telepresence, we had to pause the discussion until she could book another room. I did not make any comment about the other EL1 being ‘difficult’ at this time. Ana alleges this was said in the context of a discussion about work allocation. This was never said.
The issue of redundancies (VR) was raised at the second discussion … LJ advised that there were no VRs currently available … LJ asked Ana if she was on track for the purposes of Compass. Ana mentioned she was and LJ asked me as her manager what my views were. I expressed them and without being able to finish, Ana asked for justification of all my points. I tried to explain them, but Ana just interrupted constantly, stating that you do not treat someone who is supposed to be a leader in this way. I provided feedback about time and the Code of Conduct … I explained that Ana made frequent long personal phone calls during work hours and that because she was loud, everyone could hear … Ana became aggressive at this point, and started to point her finger art me, stating that LJ and I were supporting each other, and she wished to have a support person in the room.
After the Compass conversations … Ana was still not undertaking active case management, maintaining TMs in a timely manner or advising me if she would be on longer than expected absences from her desk … I have observed with Ana a pattern where good time management, prioritising tasks and focussing on core activities to manage case load is not occurring … Ana has always resisted being a case officer and has always made it clear that her role is to approve work and not be someone who undertakes case work.
Extracts from a statement submitted by DBZQ, dated 30 July 2021 in response to Ms Mador’s supplementary statements and the statements of FE and RT, are as follows, with emphasis added:
Further Statement of Ana Mador – 23 March 2021
I cannot comment on the matters discussed during the meeting on 27 September 2018 … as I did not attend the meeting. I was not made aware of the concerns raised by Ana during that meeting, including about what Ana says she was told by BT in April 2015 … I have no recollection of having made any such comments about Ana to BT because it did not occur.
Although Ana has described the allocation of four cases to her on 6 November 2018 as ‘unusual’ she did not raise any issue about it with me at the time or since then. Ana did not raise any concerns with me directly about the process by which the work was allocated or the fact she thought the process had changed … Work was to be allocated by me as Ana’s Team Leader … I was responsible for allocating the work but the notification of that work was allocation was done by the allocation team at my request, and the national allocation team kept a record of allocations for reporting purposes. Ana was not being ‘treated differently’ through the work allocation process and nor did that process impact on her integration into the team. Ana did not raise with me any concerns about that with me at the time or since then …
Ana’s comments about the meeting on 3 December 2018 suggest that she misunderstands Compass or the purpose of having the Compass discussions in the context of the integration … Compass discussions were held with everyone that integrated in to the national team around the same time that LJ and I met with Ana … The purpose of the meetings, which were held approximately one month after the commencement of the new team, was to confirm expectations, start discussions about goals, and provide any support to aide with the integration. … Compass discussions are supposed to be contemporary, fluid and more frequent. I consider it was entirely appropriate to hold meetings with Ana (and others) in the context of the integration into the new team structure. …. The meeting on 3 December was also intended to be a platform for discussions. Accordingly, it was not necessary for Ana to have updated her goal and they were not the focus of the discussions.
The point of seeking feedback on and contribution towards the 'My Expectations document was to show team members that they were part of the integration and that their input was highly valued. Ana did not respond to our attempts to engage her in the process, and she made no contribution to the My expectations document that was sent to her and the other EL1s … it was attached to the invitation for the meeting … Discussion about expectations was part of the Compass discussion with every member of the team. The document was provided to all staff in order to have a common understanding moving forward from the inception of the IA team structure … I disagree that Ana was being ‘performance managed’ … this was the start of a conversation about her new role … the My Expectations document was not created by me, as stated by Ana, but was developed through consultation with and input provided by other members of the team across our portfolio.
Although I do not know what she told Ana, Fiona certainly did not tell me that she thought Ana had underrated herself in certain categories.
As with the meeting on 3 December 2018, the context in which the further meeting on 18 February 2019 is important. It was being held in circumstances where Ana had only commenced her new role some three months earlier. There was no preconceived time frame or plan behind further check-ins, consistent with the dynamic nature of compass … LJ was included in the invitation sent out to Ana for the Compass check-in meeting. If there were any concerns about LJ’s involvement, Ana could have raised them at that stage. However LJ was at the meeting to show that there was an understanding at a high level about the issues with integration and to provided support to staff as required and to give them confidence that their feedback was being received by her as well as by me.
What is stated at paragraph 44 Of Ana’s statement is correct. The context is that despite the integration, the STO’s still worked among themselves and were not dealing with anybody else within the team, notably junior staff who they were supposed to develop. They only worked on the very complex matters, and they only wanted those matters so that they could work on those themselves and with each other. Ana’s comment during the meeting that she was surprised that she had been given interpretive guidance work is consistent with my recollection and also supports the comment I made about her lack of integration. This was the type of work intended to Get Ana involved with the team … the fact that she was not prepared to take on that work demonstrated her unwillingness to mix with the team …
I did not interject, and I also did not jump straight to the topic of Ana’s leave after the discussion about redundancies, as stated in paragraph 48 of her statement … at that time Ana had not formally applied for leave for that year. However, I confirm that there was no suggestion that it was going to be denied for that year, even though it was not formally applied for and approved in the system, and I did not say that Ana’s overseas leave might not be approved in the future … there was no suggestion that Ana was in distress or concerned at all at that point of the discussions …
Ana did ask about vacancies in other teams but that was in the context of discussion about career opportunities not in any other context … We were not trying to move Ana out of the team or out of the ATO. Ana was a very valuable member of the team. We were trying to support her integration into the team … when Ana asked about promotion opportunities, I sourced the information about when the net round of promotion opportunities would be advertised and provided this to Ana.
The conversation referred to by Ana at paragraph 53 of her statement did not occur. I also did not ‘walk angrily out of the room’.
Standard practice is to use TMS to record your times and if any other format is to be used an agreement should be made with the manager. Upon handover with Fiona, there was no mention of Ana using alternative methods to record her time and therefore I assumed that she was using TMS The handover was an opportunity for me to understand what arrangements were in place. Ana’s leave was mentioned during the handover with Fiona, who confirmed that it had been verbally approved by her. Other than confirming that and that her Compass was up to date was all that was discussed. If a staff member wishes to use an alternate use of time recording, they should discuss this with her manager. At no point in any conversation did Ana raise this with me …
Supplementary statement of Ana Mador – 23 March 2021
Whether or not Ana agrees with my description of our relationship either before or after 2015, I had no idea that there were any issues between me and Ana when I commenced as her team leader in November 2018. At no time before this case was anything said to me by anyone, including Ana about comments I am alleged to have made to Beata about Ana April 2015. I maintain that I did not make those comments. It appears that Ana raised concerns about y management of her because of comments she was told I had made over three years earlier. However, as far as I concerned, issues only surfaced when the tea integrated and Ana’s inability to integrate manifested itself with her poor behaviour. Ana says the only concern she has with me, which is said to be due to with ‘historical events’ … which is unsubstantiated and which I deny ever occurred.
I maintain that Ana had previously told me that she thought certain work, including interpretive guidance work, was too simple for her and she would not undertake it …
Statement of FE – 23 March 2021
I provided feedback to Fiona as the team leader so we could better understand what was being raised by my team about the STOs generally. There were no complaints, including Ana specifically … There was no action taken in response to the feedback …
Oral evidence

Counsel stated that:
The applicant’s submissions on the question of reasonable administrative action … set the bar too high for reasonable public sector managers particularly when confronted with the situation that [DBZQ] and Ms Johnstone encountered on 18 February 2019.
Counsel submitted that on controversial issues Ms Mador was ‘not a credible witness’ and ‘presented as a difficult individual who tended to refuse to accept reasonable direction ... Rather than cooperating with the process of cross-examination, the applicant sought to control the process and demanded proof of various matters ... that’s entirely consistent with her conduct at the Compass meeting of 18 February 2019’.
Counsel submitted that despite Ms Mador’s assertions ‘of surprise and her demands for proof’, it was reasonably open to DBZQ to raise issues about her behaviours because ‘Compass is the forum in which that dialogue occurs or can occur’ and that the meeting was ‘administrative action in respect of the applicant's employment’ as had been conceded on behalf of Ms Mador by counsel.
Counsel referred to sections of the Compass policy and procedure documents which stated, inter alia, as follows:
Compass … caters for the ATO’s diverse workforce … builds individual capability … encouraging employees to achieve their full potential … performance conversations are most valuable when they are ongoing and focussed and not a twice a year review you are responsible for taking ownership and driving your performance and development … you and your manager are mutually accountable for your performance. You are responsible for taking ownership and driving your performance and development … Compass is all about having regular check-ins. A check-in is a tailored and meaningful performance conversation where you can share feedback and discuss a range of topics … Compass requires a growth mindset … It is important that you regularly seek feedback so you know you are tracking and to make adjustments as necessary… (emphasis added).
When asked by the Tribunal whether, in the policy documents, there is any suggestion or requirement that, prior to a check-in, a manager should pre-warn an employee of the particular issues are going to be raised in the conversation, counsel replied that, ‘There’s absolutely no requirement for that to occur … There is no requirement to warn somebody that you’re going to discuss certain behaviours at a particular check-in at a particular point in time … These are discussions’.
When asked by the Tribunal to address the issue of LK‘s presence at both Compass check-ins, an issue in which the evidence before the Tribunal is inconsistent and disputed by Ms Mador, counsel replied, inter alia, as follows:
the applicant on one level has objected to LJ’s presence, was concerned about it, was worried about it. The applicant said that she only wanted LJ present if she was going f to raise issues with [DBZQ]. That’s part of the problem, the evidence is so obscure on that topic … first of all we’re dealing with two employees … both EL1 employees. So as part of the discussion you would have the EL1 employee who is for the time- being supervising the other EL1 employee providing the day-to-say performance feedback, the behavioural feedback. But when Compass moves to other matters such as career aspirations, the development opportunities, the acting EL2 opportunities, and that’s a discussion a higher up manager needs to address … This was an unusual situation at one level having an EL1 reporting to an EL1, but it’s the kind of thing that the applicant had done previously and the applicant indicated that she had trouble with reporting to an EL, having done so previously.[58]
[58] FE, Ms Mador’s previous EL1 manager was located remotely in Hobart and her approach to compass check- ins focused on formal biannual performance assessments. DBZQ was a fulltime on-site manager with an approach to Compass check-in which appeared to be more consistent with ATO policy.
Following further discussion with the Tribunal about DBZQ’s situation in managing an EL1 colleague, counsel stated that:
[DBZQ] had a more difficult situation to manage, when we come back to the situation he found himself in, particularly with the applicant who was entirely unreceptive to feedback, the Compass meeting with LJ , was on his evidence, the only safe place in which that could occur … on his evidence he couldn’t do so for fear of reprisals … Having cross examined the applicant and responses that she provided, I respectfully submit that he had due reason to be so cautious.
Counsel then referred to Ms Mador’s version of the February meeting, as set out in in her statement of 14 February 2020, where she accepts that, she invited DBQZ to provide feedback, as follows:
LJ then said again that the ‘on-track’ assessment is to be assessed holistically. I replied, As far as I'm concerned, I am ‘on track’ … unless [DBZQ] has something to say. … She than asked [DBZQ] if he had anything he wished to discuss and he listed the following matters:
Counsel then referred the Tribunal to extracts from LJ’s account of the meeting, as set out in her statement of 9 November 2020 as follows:[59]
[59] I note that these extracts appear to be the same as notes recorded by LJ in a document attached to the Statement entitled, 18/02 /19 – Compass conversation (via telepresence) –Summary of conversation.
The conversation turned to observations by [DBZQ] of Ana's workplace behaviours. These included engagement with staff, time management, long absences from the workplace, long personal calls which could be heard across the floor and work type allocation …
Ana was very defensive and not receptive to receiving feedback or engaging in an open and constructive dialogue. She did not display a willingness to talk through the issues. [DBZQ] was attempting to discuss his workplace observations. I attempted to intervene on a number of occasions but Ana repeatedly spoke over me. Ana stated that she would not engage with team members who did not engage with her … To reiterate an earlier point it was Ana's request in the conversation of September 2018 that if [DBZQ] wished to raise any concerns with her performance that I also be in attendance.
At this point, Ana was quite angry and demanded the phone records of all other staff members to make a comparison. I told Ana that this was not necessary or conducive as the observation was about her actions and working with us to address it.
Due to Ana's reaction, both [DBZQ] and I told Ana that we should continue the conversation at a later date with ATO People Support and a support person if she required this, as she said she wanted a support person for that type of conversation.
Counsel then submitted that ‘it’s completely understandable that DBZQ may react in the way he’s alleged to have reacted in light of the way the applicant treated him at that meeting’.
Counsel then referred the Tribunal to an extract from DBZQ’s report of 12 November 2020 as follows:
LJ asked Ana if she thought she was on track for the purposes of Compass. Ana mentioned she was and LJ asked me as her manger what my views were. I expressed them without being able to finish, Ana asked for justification on all my points. I tried to explain them, but Ana just interrupted constantly, stating that you do not treat someone who's supposed to be a leader in this way. I provided feedback about time and the Code of Conduct and highlighted points.
Counsel stated, inter alia as follows:
In my submission, the meeting was reasonable in its inception. It was reasonable in its conduct. The reality of the situation here is that LJ and [DBZQ] held a regular check- in meeting in accordance with the procedures set out by the ATO or the policy set out by the ATO. The conversation, as [DBZQ] said, evolved to the point of discussing workplace behaviours. It was always a possibility that that would occur. There was no obligation for [DBZQ] or Ms Johnstone to forewarn the applicant of that contingency.
There was no obligation for them to offer a support person at any point. Indeed, when the issue of a support person emerged, the meeting was drawn to a halt. Although a standard of perfection is not required, one has to wonder, what if anything further could have been done for Ms Mador in this circumstance. And if one were to engage in that exercise of speculation one could end up in the position of simply evaluating whether the meeting could have been conducted more reasonably.
In my submission, this is plainly a case of reasonable administrative action. The applicant has repeatedly sought to re-badge the quality of the meeting, provide an evolving version of events as to the meeting and, indeed, she even sought to overcome the exclusionary provisions by changing her date of injury. But, in my submission, the inescapable fact is that this meeting was reasonable in its manner, reasonable in its inception and reasonable in its conduct, and there was nothing about the manner of the meeting that could be properly impeached for the purpose of the SRC Act.
Counsel then referred to the decision in Nguyen and Comcare,[60] where the Tribunal observed the standard of reasonableness in s 5A of the Act ‘is not a standard of perfection’,[61] and that the Tribunal ‘should not expect perfection in management’.[62]
[60] Nguyen and Comcare (Compensation) [2018] AATA 1623.
[61] Ibid at 63.
[62] Ibid at 25.
Counsel stated as follows:
In that regard, managers don't have to tolerate every single outburst from an employee. The way the applicant looks at this case is that [DBZQ] simply had to sit there meekly putting up with her outbursts, rather than responding, particularly when he himself felt threatened or at least harassed by her. In my submission, [DBZQ]'s reaction is both understandable and forgivable in the circumstances.
Counsel proceeded to address LJ’s oral evidence about the interaction between DBZQ and Ms Mador, where she tried to interject but was unable to ‘bring back calm’. Counsel submitted that the situation she described was not unreasonable, because DBZQ was in a situation ‘where he was trying to provide feedback for the applicant’s benefit in the context of the Compass process. He was trying to do what he was required to do as a manager’ and Ms Mador’s reaction caused him to feel harassed and, therefore, it was reasonable for him to stand up for himself.
In response to a question from the Tribunal about Ms Mador’s claim that she was ‘surprised’ and felt ‘ambushed’ that issues about her ‘performance’ were raised in the Compass check-in conversation without prior notification. Counsel responded, inter alia, as follows:
There is no legal consequence to the applicant’s feeling of being surprised, in this case. Compass did not require her to have forewarning that issues would be raised as to her workplace behaviours on 18 February 2019. In fact, the applicant was an executive level employee in the ATO. She held herself out as a person who didn’t need her hand held … a high achiever … The Compass framework always contemplates that there may be discussion about performance … These were low- level behavioural issues that [DBZQ] had observed. He was entitled in the Compass process to raise these matters with the applicant. Indeed, the process the required him to raise those issues with applicant … The applicant, on her version, essentially invited feedback from [DBZQ]. There’s nothing more he can do when the applicant invites him to provide his assessment of her performance and behaviour.
One of the planks in the applicants argument was that the meeting changed in its character … from just a Compass check in to a performance management meeting … There is absolutely no evidence that it turned into a performance management meeting under the enterprise agreement … there is a difference between Compass check in … and a formal performance process under the enterprise agreement under the enterprise agreement … What was discussed in the meeting on 18 February 2019 was the applicant’s behaviours in the context of a Compass check in …
Counsel addressed the fact that Ms Mador’s counsel, referred to an ATO policy document and submitted that the ATO accepts that a support person may be present or may be required. Counsel pointed that the document actually states that:
You may request to have an employee representative assist or represent you for any individual workplace matter arising under the enterprise agreement’. Counsel added that this is an ‘option that is open to an employee to exercise’ and there is no obligation on a manager to remind an employee of this option before a Compass meeting.
Conclusion
On my reading of the available evidence and, taking into consideration, the concessions made by counsel on Ms Mador’s behalf, I am satisfied that the Compass meeting on 18 February 2019, was reasonable administrative action in respect of Ms Mador’s employment, and that, during the meeting, it was reasonable for DBZQ to raise his concerns about her behaviour in the workplace.
Ms Mador submits that the ‘administrative action’ was not taken in a reasonable manner.
This raises a question, as to the meaning of ‘reasonable’ in the context of administrative action.
In Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at 79, French J stated as follows:
There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done ‘reasonably’… if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court (emphasis added).
In Comcare v Martinez (No 2), Robertson J stated as follows:[63]
[63] [2013] FCA 439.
82 In my view, since context is a large part of statutory construction, it is not appropriate to start from a context so remote from the SRC Act, particularly given the international law background to s 18D. I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment (emphasis added).
83 Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
Ms Mador’s counsel, submits that the ‘administrative action’ was not reasonable because of what ‘actually transpired in the meeting’, in particular, ‘that part of the meeting where the applicant's behaviour in the workplace was raised by [DBZQ] the verbal exchange that arose was to the effect that at that point, from that point onwards, the meeting involved poor behaviour on the part of both the applicant and [DBZQ]’.
Counsel preferred the version of the meeting, as was described by LJ in her oral evidence at the hearing. Counsel described the incident as an ‘argument’ between DBZQ and Ms Mador where ‘the applicant sought to defend herself and [DBZQ] sought to press his point … and continued until the applicant disengaged from it by indicating that she could not continue with it and required a support person’.
Counsel then stated that ‘That is, this is not an enquiry into whether the applicant did in fact make excessive personal phone calls or did … anything else. This is an enquiry as to whether the manner in which DBZQ went about raising those issues in the 18 February 2019 meeting was reasonable (emphasis added).
In trying to explain his submission, Counsel challenged the proposition that the decision to raise the issues about Ms Mador’s behaviour ‘occurred organically and in the course of the conversation’. He submitted that ‘it's reasonable to infer that even if [DBZQ] did not go into the 18 February 2019 meeting with an explicit plan to raise those behavioural issues with Ms Mador, he was at least aware that it's likely that those issues would come up in the context of that meeting’ and, therefore, ‘It would have been reasonable for Ms Mador to have been alerted to the potential for these issues to be raised at the meeting and to have had the opportunity to seek out and bring to the meeting a support person.’
When the Tribunal raised concerns about the degree of speculation in his submission, counsel stated as follows:
The applicant, I think, it can be accepted, responded perhaps we could describe it as defensively, to what [DBZQ] had said about her behaviour. [DBZQ]’s response appears, on Ms Johnstone's evidence, to have been not to calm the situation or to seek a constructive outcome, but instead to himself engage in an argument with Ms Mador up to the point at which she disengaged from the exchange by saying, well, I'm not going to talk about this any further without a support person present. Those circumstances, in my submission, are sufficient to take the administrative action on 18 February 2019 beyond the bounds of being taken in a reasonable manner, such that the exclusionary provision section 5A is not engaged.
Speculation about, what was in DBZQ’s mind or his intentions prior to the meeting, in my view, is not useful. Obviously, prior to the meeting, DBZQ had concerns about Ms Mador’s behaviour in the workplace and, as he was her manager, he was obligated to raise these issues with her.
Given the circumstances around the integration of Ms Mador into IA team, as outlined in the evidence above, it would seem reasonable to assume that DBZQ would be cautious about how and when, to raise his concerns about her behaviour.
The stated objectives of the Compass performance framework, and the fact that check-in conversations/meetings are clearly not considered to be performance management or disciplinary meetings, in my view, provide an appropriate opportunity to raise concerns about an employee’s behaviour.
Therefore, the meeting in February 2019, the purpose of which was to check-in about the progress of Ms Mador’s integration into the IA team, provided an appropriate opportunity to raise concerns about her behaviour. The fact that DBZQ chose to raise his concerns about Ms Mador’s behaviour during that conversation was, in my view, definitely reasonable.
On consideration of the overall evidence before the Tribunal, it is not surprising that Ms Mador did react, in what appears to have been a defensive and uncooperative manner, and that DBZQ reacted in a similar way, leading to a verbal exchange that has retrospectively been labelled as an ‘argument’.
The suggestion by counsel, that DBZQ should bear the sole responsibility for the continuation of the verbal exchange, is not consistent with my reading of the evidence. I am satisfied that Ms Mador contributed significantly to the mood and continuation of the exchange.
Also, I am not persuaded that the available evidence is sufficient, to allow the Tribunal to make an objective assessment of the verbal exchange and reach a conclusion that the exchange was not reasonable. In my view, even with the benefit hindsight, given the overall circumstances of this matter, it is difficult to imagine a way of doing things differently, apart from simply not raising the concerns about Ms Mador’s behaviour.

Furthermore, I am not persuaded that the nature of the verbal exchange, alone, was sufficient to render the Compass meeting an administrative action that was not taken in a reasonable manner.
It follows that I am satisfied that the Compass meeting on 18 February 2019 was reasonable administrative action taken in a reasonable manner.
As a result of administrative action in respect of Ms Mador’s employment?
The evidence, as presented by Ms Mador, describes a series of administrative actions over a period of about six months that, she claims, caused her to experience psychological stress.
Arguably, the most significant administrative action was the action to transfer Ms Mador to the Sydney IA team. If this had not occurred, the subsequent administrative actions would not have occurred and presumably, in March 2019, she would not have suffered a ‘psychological disease’.
However, in consideration of Ms Mador’s submissions, and the temporal relationship between the Compass meeting on 18 February 2019 and the onset of her incapacity for work and requirement for medical treatment, I am satisfied that this meeting was the ‘most significant event’ in respect of the onset of her ‘psychological disease’.
Therefore, I am satisfied that Ms Mador suffered her ‘psychological disease’ in March 2019, as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.
I am also satisfied that, but for, the February 2019 meeting, Ms Mador would not have suffered her ‘psychological disease’.
DECISION
For reasons set out above:
(a)The Tribunal finds that in March 2019 Ms Mador suffered a ‘psychological disease’ for the purposes of section 5B of the SRC Act.
(b)The Tribunal also finds that Ms Mador suffered the ‘psychological disease’ as a result of reasonable administrative action taken in a reasonable manner in respect of her employment and, therefore, she is not entitled to receive compensation under section 14 of the SRC Act.
(c)The decision under review is affirmed.

I certify that the preceding 274 (two hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

........................................[sgd]................................
Associate
Dated: 27 April 2022

Dates of hearing: 16 February 2021; 6 - 9 December 2021

Counsel for the Applicant: Mr Adrian Coombes

Solicitors for the Applicant: CARROLL & O'DEA LAWYERS

Counsel for the Respondent: Mr Peter Woulfe

Solicitors for the Respondent: MORAY & AGNEW LAWYERS

Dates of hearing:	16 February 2021; 6 - 9 December 2021
Counsel for the Applicant:	Mr Adrian Coombes
Solicitors for the Applicant:	CARROLL & O'DEA LAWYERS
Counsel for the Respondent:	Mr Peter Woulfe
Solicitors for the Respondent:	MORAY & AGNEW LAWYERS