MARY MEANEY and COMCARE - [2012] AATA 352

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/5151

General Administrative Division )
Re: Mary Meaney
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:             Professor RM Creyke, Senior Member
DATE:   11 January 2013
PLACE:                  Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

at footnote 19 replace “Id at 27” with “Id at [27]”;

at footnote 20 replace “Cf Rares and Tracey JJ at” with “Cf Id at [57] and [60] per Rares and Tracey JJ”.

...............................[sgd]..............................
Professor RM Creyke, Senior Member
[2012] AATA 352

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/5151

Re

MARY MEANEY

APPLICANT

And

COMCARE

RESPONDENT

Decision

Tribunal
PROFESSOR RM CREYKE, SENIOR MEMBER

Date 13 June 2012

Place Canberra
The decision under review is set aside and substituted under s43.
...............................[sgd].........................................
PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
COMPENSATION - Commonwealth Employees - nature of injury – whether disease – date of injury – whether caused by employment – whether personal carer’s leave is a benefit – whether denial of personal carer’s leave significant cause of condition - whether reasonable administrative action undertaken in a reasonable manner
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14
Cases
Comcare v Mooi (1996) 69 FCR 439 at 444.
Comcare v Sahu-Khan (2007) 156 FCR536
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 87 ALD 34
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Gilbert and Comcare [2009] AATA 224
Re Kelly and Comcare (2006) 93 ALD 658.
Repatriation Commission v Webb (1987) 13 ALD 421
Trewin v Comcare (1998) 84 FCR 171
Wiegand v Comcare (2002) 72 ALD 795
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Edition, June 2000)
Australian Fair Pay and Conditions Standard
Department of Infrastructure, Working Hours and leave Employment Guidelines (revised March 2007)
Department of Transport and Regional Services, DOTARS Human Resource Procedures booklet (revised March 2007)
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER

Ms Mary Meaney, born 1959, made a claim for workers compensation for a ‘mental state’, dated 10 November 2009. The application was rejected by Comcare on 19 May 2010, a decision upheld on review on 24 September 2010.
Ms Meaney sought review by the Tribunal on 26 November 2010. The application was heard on 20 February 2012. During the hearing, there had been discussion of the forthcoming decision of the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21. Following the publication of that decision on 8 March 2012, on 16 March 2012, the respondent requested that the decision be accepted as authority. A telephone directions hearing was held on 20 April 2012 to discuss whether the parties should make submissions as to the application of Reeve in the matter at hand. In the result neither party did so. Final advice on that matter was received by the Tribunal from the respondent on 23 April 2012, and from the applicant on 01 May 2012.
Background
Ms Meaney was a Director in the Ministerial and Parliamentary Services (MPS) section of the Department of Infrastructure, Transport, Regional Development and Local Government (agency) where she had worked since 5 January 2005. She was employed at a substantive Executive Level 2 (EL2), but from 31 October 2007, she enjoyed an SES Band 1 equivalent remuneration package to reflect ‘the extensive experience and strong legal qualifications and background’ that she brought to the role.[1] As Director she was responsible for over 20 staff.
[1] AWA request document attached to standard AWA.
Ms Meaney was employed on an Australian Workers’ Agreement (AWA). The AWA provided that from time to time the Department may notify her of departmental policies affecting her employment (A2.1). It was accepted that such policies included the DOTARS Human Resource Procedures booklet (rev’d May 2007) containing the policies relating to personal carer’s leave (PCL). PCL includes both carer’s leave and sick leave.
Ms Meaney’s supervisor from 2005 was Mr Jeremy Chandler, former Chief Operating Officer for the agency until he resigned in November 2007. From December 2007 the position was filled by Mr David Banham.
Ms Meaney became a carer of her widowed mother in 1997. Her mother had suffered a stroke in 1991, a fall in 1998-99, had two eye operations between 1999 and 2003, and a severe infection in late 2008. Ms Meaney said the care she provided involved her taking her mother to appointments, ensuring she had meals, that the house was clean and the gardening done, as well as providing her with social support.
Under arrangements negotiated with Mr Chandler in 2005 when she accepted the position, Ms Meaney was permitted to work flexible hours, for example, on occasions, being in the office during the morning and in the evening, rather than the afternoons. Ms Meaney’s evidence was that she had an arrangement with Mr Chandler that she could leave work ‘to see my mother’. Her evidence was that she had also ‘put that in place with David … when [her] mother was ill in 2008’.
The arrangement, as Ms Meaney explained, was also for her to take a certain number of days per year in lieu of the extra hours worked to manage parliamentary business, with additional days in an election year. For this purpose, Ms Meaney kept a diary of her hours. Mr Chandler is reported to have said the arrangement was to reflect workplace factors, namely, ‘Because of the issues concerning the Parliamentary area, because you work in Cabinet matters, because you work at short notice, you have to take things to Minister’s offices, you work at Senate Estimates’. As Ms Meaney said of the job: ‘we worked very flexibly in the Ministerial and Parliamentary area’. Another officer in the MPS area had also negotiated to work from home one day a week.
Mr Banham said he did not fully understand these arrangements. In an undated extract of email from October 2008, he had said, ‘Hi Mary I am not fully across the terms of your AWA and the arrangements agreed with Jeremy with regards to TOIL [time off in lieu]. Can we discuss? Many thanks David’. In an email to Ms Meaney on 19 February 2009, he repeated that he did not understand the flexible working arrangements that Ms Meaney had negotiated with his predecessor, particularly the informal elements of that agreement. He also said he had never had a conversation with Ms Meaney ‘in relation to her package and her position’. Since the terms of an AWA are confidential, he said he had not seen Ms Meaney’s AWA. However, he acknowledged he was familiar with the template forms of the AWA.
In his evidence Mr Banham said it was for Ms Meaney to explain the arrangement to him. As he said ‘I would expect Mary to show me that … she had made arrangements for variations’. At the same time, he also acknowledged that he expected Mr Chandler to have brought any such arrangements to his notice when he had handed over to Mr Banham. He said in evidence as to Ms Meaney’s flexible hours: ‘I’ve always supported them. I continue to support them’. However the flexible arrangements had been of growing irritation to him, he said, from about late 2008.
At the hearing, Mr Banham said that, in his view, members of the Senior Executive Service (SES) in the Australian Public Service (APS) were on duty ‘just about’ 24 hours a day, and those at the Executive Level (EL) should be at work during core hours, particularly in busy operational areas such as MPS. He maintained that ‘time off in lieu’ could only be taken with his approval, as formalised in Ms Meaney’s AWA.
On 15 January 2009, Ms Meaney’s mother fell, broke her hip and required hospitalisation and an operation. Her mother was 86 years old at the time and it was anticipated that she would not survive the fall, the operation, and the pneumonia she had contracted. The last rites were administered prior to the operation. Her mother did survive and after a period in respite care from 12 February 2009, returned to her home on 25 February 2009. After her return, however, she required rehabilitation and support.
On Friday 16 January 2009, Ms Meaney emailed Mr Banham at 8.03am to advise him that her mother was in hospital following a fall and was awaiting an operation. The email detailed arrangements she had put in place for operational reasons to cover her absence:
[S] and [H] are compiling some information for [F] (1) On parliamentary committees relevant to the dept, and (2) on quality issues re correspondence.
The second item is under control, but I would like some quality control on the first. I have asked [H] to ask Divisions which parliamentary inquiries they have on their books and she is compiling the response. But there needs to be some research on other Cttees the Dept may contribute to. [S] provided a response which picked up one of the Senate Cttees (Rural and Regional Affairs) but there would be others that will effect [sic] this portfolio. Suggest you look closely at both before they go to [F]. Both would be best to go to [F]today.
Mr Banham responded on 15 January 2009: ‘I have asked [S] and [H] to progress’. To which Ms Meaney replied: ‘Thanks. I assume Trudy will be in contact to provide me with the information’.
The operation on her mother was on Sunday 18 January. Ms Meaney emailed Mr Banham that day to say she would be away the following week due to her mother’s illness, and she would not be accessing emails.
On 22 January 2009, Ms Meaney obtained a personal circumstances leave (PCL) certificate from Dr Ian Mills, her general practitioner (GP), for the period 15 January to 23 January 2009. Dr Mills was also the GP for her mother. This was in substitution in part for the recreation leave Ms Meaney had been on prior to her mother’s fall. Ms Meaney’s recreation leave was shown as recommencing for the week following 23 January 2009.
On Monday 2 February 2009, Ms Meaney was due to return to work. At 9.19am, Ms Meaney emailed staff that she would be away that week. Ms Meaney also contacted Dr Mills’s rooms and obtained a carer’s certificate for 2-6 February 2009.
At 9.25am on 2 February 2009, Ms Meaney contacted her supervisor, Mr David Banham to inform him that she was ‘officially away this week’. However, her email said she would ‘be popping into the office to keep an eye on things.’ Her email then noted ‘My mum has now been taken off critical and has been moved to rehab thankfully, but a number of things need to be done to her home so she can return when recovered’. She noted she was coming into the office that day and would try to see him. The email also said: ‘I owe you some leave forms and I have a carer’s certificate as well’. She noted that ‘[J] [Ms Meaney’s executive assistant] is keeping me informed of issues’.
At 2.48pm on 2 February 2009, Mr Banham emailed Ms Meaney saying:
Mary, I am not aware that you are on leave this week – officially or otherwise. Parliament is resuming this week and we have Estimates next week. Now is not a good time to be requesting for leave.
Ms Meaney took this response to mean that her leave application was refused. As a consequence of this refusal, Ms Meaney’s brother, who was a doctor, postponed commencement of a specialist medical course in Victoria to look after his mother for a fortnight.
On receipt of the email, Ms Meaney rang Mr Banham as she said she thought he did not understand the circumstances. She explained these to him, including that her mother had not been expected to survive the operation. According to Ms Meaney, Mr Banham still maintained that Ms Meaney should return to work that week given that the following week Senate Estimates hearings were under way. Ms Meaney said she became upset during the call and had to ring back when she had recovered her composure. Mr Banham said that he did not recall a discussion with Ms Meaney on 2 February 2009 when she had tried to explain to him what had happened to her mother. As it happened, on 5 February, an email copied to Ms Meaney, noted that the Senate Estimates hearing for Tuesday 10 February 2009 was cancelled. A quarterly review meeting was to be held instead.
During the telephone conversation, Mr Banham said he wanted to see Ms Meaney first thing on 3 February 2009. Ms Meaney said at that meeting, she had offered Mr Banham two certificate for carer’s leave: the first dated 22 January 2009, for the period 15-23 January 2009; and the second, dated 2 February 2009, for the week of 2-6 February 2009. Ms Meaney’s evidence was that when she handed the certificates to Mr Banham, he said ‘I don’t know what to do with those things. I usually put them in the bin’. Mr Banham’s evidence was that he had no recollection of Ms Meaney handing him a carer’s certificate at a meeting on 3 February. He said if he gets a certificate he would ‘simply forward them to HR and they put them on file’.
At that meeting on 3 February 2010, Ms Meaney said she also told Mr Banham that she would need to take further leave for about six weeks to assist her mother upon her return home. Ms Meaney said his response was that he would not approve carer’s leave and that she should take recreation leave for that period. Ms Meaney said that the conversation became heated so she suggested she seek advice from Human Resources about whether carer’s leave was appropriate and according to her was told that carer’s leave could be used for a six week period, and for that purpose. The Tribunal has no written evidence of this advice. There is an email from Ms Meaney to HR on 11 February 2009 asking about purchasing leave, to which a reply was provided on 12 March 2009 after a reminder by Ms Meaney on 6 March 2009. Mr Banham denied that he agreed for Ms Meaney to obtain that information. His testimony was that he had said she could ask for recreational leave and that he would grant that form of leave.
At 1.54pm on Thursday, 5 February 2009 Ms Meaney sent an email to her staff, advising she would be attending half days for that week and approximately four to five hours per day for the following week, while her mother remained in hospital. Ms Meaney advised that Mr Banham had agreed that Ms Trudy Anderson should continue to act in Ms Meaney’s position until she returned fully to work.
At 11.15am on Friday, 6 February 2009, Ms Meaney emailed Mr Banham, to apologise for missing a meeting that morning. She said she was involved in a car accident. She noted that Ms Anderson would be acting in her position for the next two weeks as discussed and agreed. The email went on:
I have advised the section yesterday that Trudy [Anderson] will be acting me for the next two weeks … as we discussed and agreed. That was well received by the Section as they were unaware she had been acting in the role. I am very supportive of giving Trudy an opportunity to do all the job and this would mean attending quarterly review on Tuesday (8.30 – 9.30); attending EMT.
The eWorks report is due to be tabled at EMT and I would run Trudy through a briefing of what is expected at the meeting (and yourself if you would like to attend) in the same way as I sat down with her before the Senates Estimates Briefing with the EDs to tease out possible questions. The eWorks report just really needs to be tabled. Both of which I am happy to do if you prefer. I have a health assessment booked on Monday at 2 00pm with my mother but can change the time if you would prefer if I attend EMT. If you are ok with me attending the apt on Monday I will confirm. I also have a personal medical apt at 9am on Monday and will be away for an hour, and will attend the hospital in my lunch hour.
Trudy has expressed a desire to obtain an EL2 and it is important to Trudy and the team that she is seen to be given a chance as to how she performs in this role.
At this stage I will probably work 7.5 hours each day next week but as discussed with you it will be broken by appts which I will seek your approval before attending. Let me know if you would prefer to discuss in person when I come in this afternoon.
On Monday 9 February 2009, Ms Meaney attended Dr Mills. His clinical notes state:
Mother still in hospital in rehab slowing[sic] mobilising awaiting home assessment. Mary planning on 6-8 weeks leave upon return home therefore will need a certificate for carer’s leave general certificate now specific dates later.
On 9 February 2009, Dr Mills provided a general certificate in the terms reflected in his clinical note.
On 11 February 2009, Ms Meaney had a regular meeting with Mr Banham. At the end of the meeting she asked about the filling of two positions which had been anticipated but had not occurred. In response, Mr Banham said the appointments had not been made because there had been a branch restructure. Ms Meaney said she knew nothing about this restructure, having been involved with Mr Banham since the previous November in another proposal for a restructure of MPS. Ms Meaney said she asked when the restructure was to take place and she said Mr Banham replied ’It will take place today. We are announcing it in a minute’.
During the conversation Mr Banham also said, ‘I’ve put an SES officer in charge of the planning area’. When Ms Meaney asked who was to head the branch, Mr Banham said ‘It is Warren Fletcher’ who would act in the position until the position was advertised. Prior to this appointment Mr Fletcher had been at the same level as Ms Meaney and was responsible for only two staff. Ms Meaney said that Mr Fletcher had been with the branch for less time than her and was less experienced.
The restructure was announced in a staff bulletin the following day, 12 February 2009 and involved amalgamating three sections, including MPS, into a branch headed by an SES. A formal presentation of the restructure was made by Mr Banham on 19 February and sent by email to the Corporate Division on 20 February 2009.
The effect of the restructure on Ms Meaney was that instead of reporting directly to Mr Banham, Mr Fletcher would now be interposed between Ms Meaney and Mr Banham. Prior to this, Ms Meaney had reported directly to an SES Band 2 officer. The restructure meant Ms Meaney would no longer attend executive management team meetings or the SES forum. She also would no longer attend unit meetings, corporate leaders meetings, or any of the meetings of committees, including a parliamentary business committee.
Ms Meaney said, on hearing the news she thought she had been ‘sidelined’ and had been ‘shafted’. She also said that since a branch restructure would have been approved by the senior executive, with whom in her previous role she had regular interactions, these moves and the choice of Mr Fletcher to act in the SES position meant her ‘future was finished within the Ministerial and Parliamentary area’. She considered she had a ‘very poor prognosis of being continually employed with the government Department’.
At 3:31pm on Wednesday 11 February 2009, Ms Meaney was advised that her leave request for personal circumstances (family/care) leave had been approved by Mr Banham, covering the period 3 February 2009 to 6 February 2009. At 8:45pm on 11 February 2009, Ms Meaney emailed Human Resources in her workplace to enquire about purchased leave. Ms Meaney said she did not attend work on 12 February because she ‘was very stressed. I was very anxious’. As she said:
I thought … my job … had been lost. I was anxious, because I thought that my personal reputation in the department had been tarnished, and I felt anxious, because I thought the situation with my work employment had become hopeless, given what had happened with the previous issues, regarding the carer’s leave.

Ms Meaney said that on Friday 13 February 2009, when she was at work, she ‘was approached by a number of staff who were very angry and anxious about the fact that this restructure had happened, and there had been no consultation with staff in regard to the restructure. They asked me what was happening’. In order to placate them at 11.46am that day Ms Meaney emailed her staff regarding the restructure, presenting the move in positive terms. The email also noted that Ms Meaney ‘would be at work for the next two weeks, following which I will spend six weeks on leave until 14 April when my mum returns home from hospital’. She noted that Ms Anderson would continue to act for the next 8 weeks.
On 19 February 2009, Mr Banham emailed Ms Meaney, Mr Fletcher and Ms Anderson at 10.38pm to report:
At the parliamentary business committee meeting held this afternoon there was further discussion regarding the growing concern/perception by our Executive that MPS was disconnected with the activities of our Minister specifically and Parliament more generally. I think this [an email from the Deputy Secretary sent 8.43pm] is a good example of this disconnect.
We cannot afford to send dismissive emails to the deputy secretary’s [sic] telling them what they already know – particularly when we are wrong. MPS need to become more engaged with the office and make better use of our DLOs [Departmental Liaison Officers] - how many meetings has the head of MPS had with the Chief of Staff in the last week, month, year? MPS are meant to be our eyes and ears in parliament. It has become evident that this is not the case. … We need to put together a plan of action, show some leadership and start delivering.
The email had been triggered by an email from Ms Anderson, then acting in Ms Meaney’s position, to the Deputy Secretary of the Department at 4.47pm on 19 February 2009, in response to a request for Business Lists, particularly a Business List for the [Subcommittee] of the Parliamentary Business Committee (SPBC) meeting which the Minister would be attending next day. Ms Anderson said in reply that the Minister only received a copy of a Business List for a meeting which he would be attending or of which he was a member. Her email went on: ‘As our Minister is not a Member of the SPBC and will not be attending this meeting he will not be issued a Business List by Cabinet Secretariat. I understand the Minister was going to attend but is now [sic] longer doing so’.
In evidence Mr Banham said he became sharply aware of the ‘disconnect’ problem on 19 February 2009. On the other hand he also said that he had a growing concern about the ‘disconnect’ from the end of 2008. Initially, he denied that his email of 19 February 2009 was a criticism of Ms Meaney and said ‘It was a criticism of us’, meaning MPS or the Corporate Business Services Division. Later in the hearing, however, he acknowledged that he did consider Ms Meaney’s flexible work arrangements was an element of the problem and that he would have expected her to develop a working relationship with the minister’s office. In his view, the problem could have been rectified by meetings between Ms Meaney and the Chief of Staff in the Minister’s office.
On 18 February 2009, Ms Meaney contacted Dr Mills’s practice to request a sick leave certificate from 23 February 2009 to 15 April 2009. Dr Mills’s clinical notes state ‘Carer’s certificate 25/2/09 to 15/4/09’. On 19 February 2009, Dr Mills’s clinical notes state carer’s certificate reissued for 23/2/09 to 15/4/09. The change followed a telephone request by Ms Meaney to amend the dates. Neither certificate was in evidence. A medical certificate for 23/2/09 to 15/4/09 citing ‘Medical illness’ of Ms Meaney was issued dated 19 February 2009. That certificate was before the Tribunal. The certificate has a notation showing it was posted on 18 March 2009. Dr Mills’s clinical notes for 18 March 2009 stated: ‘work certificate 23 February 2009 – 15 April 2009 listed as medical condition’. That was the certificate for Ms Meaney.
Dr Mills’s evidence was that he could not explain why the certificate dated 19 February 2009 had been changed from a carer’s certificate to refer to a ‘medical condition’ of Ms Meaney. His clinical notes indicated that he issued the amended certificate on 18 March 2009, not 19 February 2009. He said he did not backdate certificates.
Ms Meaney’s evidence was that she spoke with Dr Mills on 19 February 2009 and that she had:
…outlined to him that the situation at work had deteriorated and that I wasn’t able to return to work and … I wanted some time off before my mother … came home on the Thursday on the basis that I wasn’t coping with the employment situation, that I found the behaviour being manifested by Mr Banham as intimidatory and harassing and I felt I couldn’t cope any more.
She said that in response, Dr Mills had said:
… if I was having problems in the workplace and that I needed to care for my mother for that six week period, I wouldn’t be able to attend and do my job and look after my mother. It would cause me too much illness and he was quite concerned about my previous history and said to me that he thought it would be more suitable to change the certificate from carer’s to a sick certificate, and I agreed.
The reference to ‘previous history’ was a reference to episodes of mental disorder Ms Meaney had suffered in 1996 and earlier, for which she continued to take medication. Dr Mills said in evidence that such telephone calls from patients occur but that ‘I will enter that as a telephone entry in my notes’. No such entry occurred on 19 February 2009. Dr Morris said at the hearing said ‘it’s possible’ that he had a discussion with Ms Meaney on 19 February as she asserts, but he could not explain why he did not record the telephone conversation. Dr Mills was asked to provide any documentary evidence relating to contact with Ms Meaney on 19 February 2009 and did so after the hearing. Dr Mills also asserted that in his dealings with Ms Meaney he had had no cause to believe she exaggerated her symptoms, or that she was not ‘honest and upright’.
At 12.55pm on Thursday, 19 February 2009, Ms Meaney emailed Mr Banham, as follows:
David – seeking your approval as discussed to amend leave in the week 3-6 February 09. As we agreed I provided a leave application for four full days which was approved and our agreement was I would amend the leave to take account of attendance during this period. [Then followed discussion of her claimed credits for work time during that week. Her email continued:] ‘Would be grateful for your approval to amend the pcl leave accordingly refunding leave credits …. Also as discussed I will provide a further application for extended leave given my pcl circumstances for your consideration’.
At 6.27pm on 19 February 2009, Mr Banham emailed Ms Meaney:
Mary, On this occasion I will approve this variation but, as we have previously discussed, I am still unclear as to the flexible arrangements agreed between you and Jeremy [Chandler] wrt [with regards to] your attendance. You currently enjoy SES terms and conditions re your remuneration but essentially operate under arrangements similarly to APS 4-6 flex-time. This is an issue I need to address, or at least understand, but it can wait until you return from leave.
The reference to APS4-6 flextime refers to arrangements under awards and certified agreements within the APS confined to junior officers, to take time off in lieu for overtime worked as flextime. The arrangement does not apply to Executive Level (EL) officers, Ms Meaney’s designation.
At 10.36pm on 19 February 2009, Ms Meaney emailed Mr Banham saying:
I am not applying for flex or toil [time off in lieu] credits. … I believe our agreement was I was to attend work as you requested in your email to me on Monday 3 Feb (sic) and then reclaim the unused pcl portion, depending on attendances, which I did not know until the week’s end. I have not claimed any toil but merely mentioned my attendance balance to indicate that I am not in debit in any way owing the dept. My expectation of attendance is that my obligation is to work whatever hours is [sic] required to do the job.
She ended: ‘If you prefer keep the unused pcl, I have nine months of the stuff’.
At 10.55pm on 19 February 2009, Mr Banham emailed Ms Meaney and said:
Mary, Your actions are inconsistent with your email. You know my issue is not with your use of PCL – it is about your approach to your job. We also seem to continuously differ on our understanding on what we ‘agreed’. However, I don’t think it is useful in pursuing this conversation by email. Can you please arrange a meeting with [Sa] so we can discuss in person.
At 11.27am on Friday 20 February 2009, Ms Meaney emailed the Personnel Office requesting a re-credit of personal circumstances leave for the period from 3 February to 6 February 2009. Ms Meaney noted that the period was approved by Mr Banham, but he had asked her to attend the office due to ‘operational demands’. Ms Meaney did not return to work from Monday 23 February 2009.
In evidence Ms Meaney said she felt ‘positively ill’ after the exchange of emails on 19 February 2009. She said in response to a question about why she absented herself:
I was sweating a lot and I would break out in a sweat and my heart would race and I was just feeling nauseous. I was feeling anxious and I … it was just the symptoms of anxiety which took over and it got to the stage where I couldn’t - I felt I could no longer cope with the stress that was happening in the workplace as a result of this type of email that I was getting. I felt I was being sort of harassed and intimidated and the intimidation got to me.
Nonetheless, Ms Meaney did attend work on Friday 20 February 2009. She said she turned up to work but was:
… in a very poor state. There were work issues still happening in the workplace but they were dealing with those, but I had got to the point whereby when I walked in the building, I felt feelings of dread. … I felt I didn’t want to be there. I felt that I couldn’t face another showdown either email-wise or meeting-wise with David and/or Warren.
She said ‘From about the 19^th and 20^th the situation at work had become unbearable. I went and had a conversation with my doctor, Dr Mills’.
At 9.27am on Monday 23 February 2009, Ms Meaney sent an email to Mr Fletcher, copying Mr Banham and Ms Anderson. The subject was ‘Leave Application’. Ms Meaney advised:
Warren _ as discussed with you last week and in the spirit of no surprises I flagged that I may be away this week depending on my personal circumstances. I would like to make an application for pcl for medical illness from today to 16 April which comprises our discussion re my need to take pcl earlier than first planned. David asked me to check procedures with People Branch re extended leave when I first flagged this with him. Andrew Carville [Personnel] said I must provide, if asked, a medical certificate to support his application. I have obtained a medical certificate which cites medical illness as the reason for non-attendance and will provide you a copy, together with personnel. David has separately asked me to talk to him after my return from leave re issues and I am happy to do so. I am also happy to do that earlier if he prefers.
In response on Wednesday 25 February 2009 Mr Fletcher emailed Ms Meaney, copied to Mr Banham to suggest she sought approval from Mr Banham. Ms Meaney then forwarded Mr Fletcher’s email to Mr Banham that afternoon, with a copy to Mr Fletcher. At 4.43pm on 25 February 2009, Mr Banham emailed Ms Meaney as follows:
Mary, In our earlier discussion I indicated that the intent of PCL for carers leave was to cover incidental or unplanned needs. You advised me that you had adequate recreation and long service leave. Are you now advising that you have a personal medical condition?
At 1.00pm on Thursday 26 February 2009 Ms Meaney emailed Mr Banham and said:
David – You asked me to check with People Branch – advice to me from People was that there is no such limitation re carers leave – incidental and unplanned – although when first introduced this was case. Only limitation was to give certificate which I can provide if necessary. It was subject to operational needs which I think we are covering with Trudy [Anderson] and Warren [Fletcher] (subject to your views). If People Branch provide with different advice I’m happy to reapply if that’s what’s required. Heard Estimates went well yesterday. Good news.
At 9.04pm on Monday 2 March 2009 Mr Banham emailed Ms Meaney:
Mary, I do not recall asking you to check with People and Performance with regard to PCL. My advice to you was that, in my view, PCL for the purpose of caring was aimed at incidental requirements. If the caring arrangements could be planned then normal recreation leave should be taken. Given these and my previous comments I have declined your request for PCL through SAP [database used for personnel functions.]
At 3.53pm on Tuesday 3 March 2009, Ms Meaney emailed Personnel regarding purchased leave, requesting information about the cost of purchased leave for 40 days in her financial and other circumstances.
At 5.58pm on 3 March 2009 Ms Meaney emailed Mr Banham to inform him that she was seeking advice and would ‘resubmit a proposal for your consideration’. On 6 March 2009 Ms Meaney followed up her query. Personnel responded to Ms Meaney on 12 March 2009.
At 2.00pm on Sunday, 15 March 2009, Mr Banham emailed Ms Meaney:
Mary, I am concerned that you are currently absent from the workplace – ie you are not covered by approved leave. Can you please give priority in resolving this matter.
On 18 March 2009, Ms Meaney attended Dr Mills. Dr Mills clinical notes noted:
Recent hot flushes day and night sleep generally disrupted with frequent waking considering change of Risperdal dose recent stress secondary to mother’s illness treatment options discussed could increase Risperdal however has concerns regarding dreams and flushes could change to Solian as 100mg tablet ½ night for a week and 1 at night for a week Risperdal 1mg at night for 1 weekk then 1/2mg at night for 1 week review in 2 weeks work certificate 23 February 2009 – 15 April 2009 listed as medical condition.
At 10.22pm on Wednesday 18 March 2009, Ms Meaney emailed Mr Banham:
Hello David, Apologies for not responding earlier to your email but I have been unwell and wanted to discuss my circumstances with my doctor. I have a medical certificate for the time in question and have discussed with my doctor today. He has certified I am medically unfit to attend work for the period. The certificate has been sent via express post ref cn351105 which you should receive shortly – if not Thursday, Friday.
I will access My Workplace and forward a request for pcl with a certificate for your consideration/approval.
On 1 April 2009, the agency wrote to Ms Meaney seeking her agreement to terminate her AWA. That was in line with the Government’s preference that non SES/APS employees have their terms and conditions set out in a collective agreement. For Ms Meaney this meant a reduction in salary of $40,000 pa.
At 3.27pm on Monday 6 April 2009 Mr Fletcher emailed Ms Meaney, copy to Mr Banham as follows:
Mary - On the basis of the medical certificate that you sent to David Banham advising that you were unfit for work from 23 February to 15 April inclusive, PCL on full pay has been entered into SAP for that period. I hope that you are now better, and as 15 April is rapidly approaching, I thought that I would email and ask if you anticipate that you will be well enough to return to work on 16 April.
At 5.17pm on Monday 6 April 2009, Ms Meaney emailed Mr Fletcher, copying Mr Banham and saying: she ‘I will be returning to work on that day as agreed with David which was six weeks from the time my mum returned home’.
At 9.27pm on Tuesday, 7 April 2009 Mr Banham emailed Ms Meaney:
Mary, On a point of correctness – there was no ‘agreement’ with me as you state in your email. As you are fully aware I did not approve your request for PCL to provide care for your Mother for this period as I did not consider this to be an appropriate use of PCL under our guidelines. You subsequently obtained a medical certificate stating that you were personally suffering from a medical condition which is coincidentally for the same period for which I declined your PCL. David.
At 9.20pm on Wednesday 15 April 2009, Mr Fletcher sent Ms Meaney a meeting request at 10.00am on 16 April 2009 for a return to work catch up. The meeting request followed a voice mail message to Ms Meaney from him on 15 April 2009. An email to Ms Meaney from Mr Fletcher at 10.00am, on 16 April 2009 stated:
·In the short term, at this stage until 30 June, I have asked Trudy [Anderson] to continue acting as an EL2 and to run with day to day operation of MPS in order to free you up to concentrate on MPS strategic and policy issues, and to progress some whole of Branch initiatives including the formation of ATSB [Australian Transport Safety Bureau]; and
·I would like to sit down with you and discuss where we have been and where I see MPS and the Branch going.
Ms Meaney’s evidence was that in the telephone call Mr Fletcher advised Ms Meaney that she was to take on a new role dealing with Australian Transport Safety Bureau personnel and staffing issues. Ms Meaney took this to mean she was displaced. On 24 April 2009, Mr Fletcher emailed Ms Meaney to advise that the revised arrangements for her duties enabled her to concentrate on MPS strategic and policy issues permitting the agency to accommodate her graduated return to work without compromising the day to day operations of the Branch.
On 16 April 2009, Ms Meaney attended Dr Mills. Dr Mills clinical notes say:
Mother’s health discussed query recent exacerbation of depression for the mother longstanding mood changes reported by family Mary made transition to Solian without problems now ongoing stress and nightmares with regular waking vivid not violent dreams on Solian 100mgs alone for the last 2 weeks some concentration difficulties plan increase Solian to 200mgs at night review 1 month or as required work certificate 2 weeks no work 2 weeks 4 hours per day 3 days per week that is 12 hours per week.
On 16 April 2009 Dr Mills certified Ms Meaney unfit for work from 16 April 2009 to 1 May 2009 for ‘medical reasons’. Dr Mills added that Ms Meaney would be fit for three days of four hours each from 2 May 2009 to 15 May 2009. Despite that certification, Ms Meaney did not return to work thereafter. Dr Mills continued to certify her unfit for work until February 2010. In January 2011, it was agreed that Ms Meaney would be made redundant.
In the last half of 2008, Ms Meaney took 20 days of personal circumstances leave, of which 9 days were on sick leave and 11 were family or other circumstances leave. The longest continuous period was six days in the period 18 to 25 August 2008 for sick leave. She also took 2 days recreation leave in that period. On all other occasions the leave was for one or two days only.
Between 1 January 2009 and 22 February 2009, Ms Meaney took 16.41 days leave, of which 7 days were recreation leave, 9.41 days were personal circumstances leave, seven days of which, between 15 and 23 January 2009, were for family circumstances leave, that is, immediately after her mother broke her hip and was hospitalised.
Other evidence of Mr Banham
Mr Banham said ‘the vast majority of any discussion between myself and Mary was not done through the email system; it was done personally, face-to-face’. In relation to the circumstances in which PCL is granted, he said he would not grant Ms Meaney PCL (carer’s leave) for six weeks because ‘if you’re looking for a longer term, six weeks leave, it’s no longer covered under the sort of incidental provisions, and that was my view’. Her request in advance for the longer period was ‘now starting to get into beyond the spirit of PCL’. In his view PCL was for ‘an emergency, infrequent situation’. For long-term requirements recreation leave was more appropriate. As he said it was more suitable ‘Because I believe it was’.

He acknowledged that Mr Meaney had been using carer’s leave for caring for her mother throughout 2008 and he said ‘there was frequent use of that’ and that had not been an issue. He acknowledged that PCL could be used for ‘an accident’ and that that was ‘a fairly clear-cut definition of what support of the family is’. He also said that if Ms Meaney had challenged his statement that she should use recreation leave ‘that may well not have been the decision’.
Mr Banham said, in response to cross-examination, that he was aware ‘of Ms Meaney’s mother’s problem’. His understanding was that the six weeks leave was ‘for when [Ms Meaney’s mother] came out of hospital and was convalescing at home’. Later, however, he said ‘I can’t say I had any particular detailed knowledge of her mother’s condition’ other than she ‘… had long-term ailments, and I don’t know what they were, and I knew she had had a fall and hurt her hip’. When asked if he knew how serious the injury was he said ‘No I don’t think so’. He said he had not asked Ms Meaney about her mother because ‘I probably don’t think it’s my nature to ask how her mother is and the details of it’.
In response to the questioning as to whether he had asked if there was anyone else who might care for Ms Meaney’s mother, Mr Banham said ‘It’s really not my business to ask her about her family life’. As he said ‘I would expect Mrs Meaney to volunteer that information if she was [the] only person who was there to look after her mother’. As to Mr Banham’s knowledge of Ms Meaney’s circumstances, he stated in evidence in relation to her request for PCL for a ‘medical illness’ from 23 February 2009 that he ‘wasn’t aware of any conditions with Mary’.
Medical reports
On 14 September 2009, at the request of the agency, Ms Meaney attended Dr Graham George, consultant psychiatrist, who provided a report on 15 September 2009. Dr Andrew Lark, occupational physician, provided a Fitness for Duty report on 23 July 2009 at the request of the agency.
Dr Mills
Dr Ian Mills, Ms Meaney’s treating general practitioner since 1995, provided a report to Comcare on 13 March 2010. He acknowledged that he had issued a sick certificate from 23 February on Ms Meaney’s report of ‘problems at work resulting in symptoms of stress and anxiety’. Dr Mills’s clinical notes corroborate the earlier history. The entry of 9.2.2009 noted ‘will need a certificate for carer’s leave general certificate now specific dates later’. His notes indicated on 18 February 2009 he issued a ‘Carer’s Certificate’, initially for 25 February to 5 April 2009, but reissued on 19 February 2009 for 23 February 2009 to 15 April 2009. On 18.03.2009 there is a reference to ‘recent stress secondary to mother’s illness’. Dr Mills discussed a change to her psychotropic medicine on that date and was to review her condition after 2 weeks. The notes for that day also state ‘work certificate 23 February 2009 – 15 April 2009 listed as medical condition’.
On 6 May 2009 Ms Meaney attended Dr Mills whose clinical notes include:
Work review. Attempting annual leave next 2/52 rather than 12 hr weeks v 2. Problems with work position – has legal involvement pending. On Solian 2 mg nocte; ?↑knee pain – physio pending; No nightmares/panic/frequent waking.
Dr Mills’s records show that he continued to issue Ms Meaney with unfit for work certificates until February 2010; that in August 2009 he re-prescribed Risperdal instead of the enhanced medication he had prescribed in March 2009. His clinical notes indicate further that Ms Meaney had been off Risperdal for 2 months in December 2009 and ‘feels calm in self, but disturbed sleep’.
Mr Aldridge
On 31 August 2009 Ms Meaney was assessed at her request by Mr Greg Aldridge, clinical psychologist. The report noted the history of her requests for leave in 2009 and her reluctance to take recreation leave which she feared Mr Banham might refuse as it is not automatic. The report stated she instead sought personal sick leave for the same period ‘as this could not be vetoed by David B’. The report also recorded the history of the new organisational structure, which Ms Meaney perceived to be a deliberate exclusion, the promotion of someone at the same substantive level, but with less experience than her, and Mr Banham’s veiled criticisms of the performance of her section.
He noted that since the incidents in early 2009 Ms Meaney has become very anxious, had poor sleep, was preoccupied with the inequity of her treatment, was worried about future employment and engaged in phobic avoidance of her former place of employment. In his view the onset of the disorder ‘began after the incidents in early 2009 and after it became clear to her that she was going to be…excluded from her previously senior role’. He said this disorder was not related to the condition diagnosed in 1996.
Associate Professor Robertson
Associate Professor Michael Robertson, consultant psychiatrist, provided a Fitness to Continue assessment, dated 19 August 2010, following a consultation with Ms Meaney on 17 August 2010 and confirmed his responses in a supplementary report dated 10 September 2010. The report was prepared for the agency. He said that the nature of the assessment meant he concentrated less in his report on the causation issue. He recorded Ms Meaney as saying her difficulties in seeking leave to care for her mother in early 2009 caused her to experience ‘insomnia, an increased level of anxiety, including panic attacks, tremors, agitation and some phobic avoidant behaviour. She described her mood as … despondent rather than depressed’.
In evidence he said his assessment was that her symptoms were predominantly anxiety. He also concluded that ‘If she were returning to a workplace that she was experiencing as problematic, it would have a negative effect on the course of her presumed chronic anxiety disorder’. He concurred that the symptoms of an anxiety disorder were likely to be sweating, palpitations, and feelings of nausea. They could also be symptomatic of severe panic attacks. In his opinion her condition may have been contributed to equally by her mother’s illness and her work-related problems.
He also said that her medication, Risperdal, ‘can treat anxiety’. In his view, her underlying psychological condition ‘appears to be something more constitutional or substantive, rather than a reactive condition in response to one or two difficult life events’. In cross-examination, he agreed that if Dr Mills’s notes indicated Ms Meaney had not complained of stress at the time she ceased work, her mother’s illness and convalescence could have been a more prominent stressor. In that event, the events in February 2009 may have ‘impacted upon a more substantive long-term problem’. He would then describe her condition as a ‘long-term psychiatric disorder, rather than it being a reactive anxiety disorder … as against a de novo disorder emerging as a consequence of that life event’. However, he also said that ‘very severe anxiety can present almost [as a] psychotic [disorder]’. He maintained, however, that she had an interpersonal dispute with her employer which related to her perceived treatment by the employer and said: ‘if someone has a mental illness that can affect the way in which they process their environmental sort of stimuli, that can certainly affect how they experience interpersonal interactions’.
Dr Reutens
Dr Sharon Reutens, consultant psychiatrist, prepared a report for Comcare on 1 April 2011, following an assessment conducted on 17 March 2011. Dr Reutens found that Ms Meaney was currently not suffering a psychiatric disorder but had been on or about 23 February 2009.
She said although Ms Meaney’s earlier episodes of psychological ill-health suggested ‘a vulnerability toward developing psychotic symptoms in the context of stress’, further information would be required before she could make that assessment. She did note that Ms Meaney was ‘prone to exacerbations of anxiety with stressful events’. However, development of an adjustment disorder was not a natural progression of someone with those personality traits. She concluded that Ms Meaney’s condition was due to:
…the natural distress and anxiety associated with Ms Meaney’s mother’s condition combined with her perception that her supervisor lacked empathy about these circumstances.
In a supplementary report dated 23 May 2011, Dr Reutens did not change her diagnosis of the condition Ms Meaney was suffering on 23 February 2009. She added that in 1993 and 1996, Ms Meaney suffered Recurrent Psychotic Disorder, either Brief Psychotic Disorder or Schizoaffective Disorder. As she noted ‘Ms Meaney’s symptoms worsened from February 2009 with sleep disturbance, nightmares, feeling short tempered, that she had lost her drive and headaches. She described generalised anxiety and felt particularly anxious in crowds’. She noted these symptoms gradually resolved so that in September 2009 Dr George found she was fit to resume work.
Other reports
Ms Meaney’s performance reviews were consistently positive. In the end of cycle review for the period ending 30 June 2008, Mr Banham had noted:
Mary has successfully managed the Department’s interaction with both the Minister’s office specifically and the new Government more generally over a year of significant change. Mary has also ensured that the Department has worked to continuously improve its ministerial/parliamentary systems and processes.
A reference for Ms Meaney dated 20 May 2009, from a person who had worked with her from August 2005 to October 2008, ranked her ‘highly suitable’ on all criteria, and ‘highly’ on strategic planning and thinking, management of difficult relationships, ability to prioritise tasks, meet deadlines, and cope under pressure. Overall the referee said Ms Meaney ‘did a very difficult job under what were very stressful conditions’.
Issues
The issues are:
·What was the nature of the claimed injury and is it a ‘disease’?
·What is the date of the claimed injury?
·Whether any liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) is excluded under section 5A(2) of the Act.
oWhether personal carer’s leave is a ‘benefit’ for the purposes of section 5A(2)(f) of the Act.
oIf personal carer’s leave is a benefit whether the denial of that benefit was a significant cause of her claimed condition?
oWere the actions involved in the denial of the benefit ‘reasonable administrative actions’?
oWere the actions involved in the denial of the benefit undertaken ‘in a reasonable manner’?
·Whether Comcare is liable to pay compensation to Ms Meaney for the claimed condition under section 14 of the Act.
Legislation
The relevant legislation is found in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an ‘injury suffered by an employee… if the injury results in incapacity for work’. ‘Injury’ is defined in section 5A(1) of the Act to mean either a ‘disease’ or ‘an injury (other than a disease)’, that is, a physical or mental injury. A ‘disease’ is defined in section 5B(1) to mean an ‘ailment’ or an ‘aggravation of such an ailment’, ‘contributed to, to a significant degree, by the employee’s employment’.
It is accepted that a psychological injury such as an Adjustment Disorder with Anxious Mood is compensable if the condition is sufficiently serious to be described as ‘outside the boundaries of normal mental functioning and behaviour,’[2] provided it is contributed to, to a significant degree, by the employee’s employment (section 5B of the Act), and provided it has not been excluded under section 5A of the Act. Section 5A(1) states that a disease, being an injury, is not compensable if employment was caused by ‘reasonable administrative action taken in a reasonable manner’. What is ‘reasonable administrative action’ is defined non-exhaustively in section 5A(2).
[2] Comcare v Mooi (1996) 69 FCR 439 at 444.
Consideration
Nature of claimed injury; and was it a ‘disease’ that was caused, to a significant degree, by the employee’s employment (section 5B)
The medical evidence of Dr Mills, Mr Aldridge, Dr George, and Dr Reutens was that, at least during the first quarter of 2009, Ms Meaney was suffering from a psychiatric condition which was diagnosable in accordance with the criteria in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders[3]. It was accordingly a condition outside the boundaries of normal mental functioning and behaviour. Whether it is a ‘disease’ and hence an ‘injury’ for the purposes of the Act must be determined according to section 5B of the Act.[4]
[3] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4^th Edition, June 2000)
[4] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) ss 4(1), 5A, 5B.
The description of that injury varied. The Comcare primary decision-maker identified the condition generically as a ‘mental state’ and found it was a ‘disease’. The reviewable decision did not refer to the nature of the condition. Dr Mills identified ‘Acute Situational Crisis’ which progressed to ‘Chronic Adjustment Disorder’; Mr Aldridge diagnosed ‘Adjustment Disorders with Anxiety’; and in Dr George’s opinion, in September 2009, Ms Meaney was suffering from ‘Chronic Adjustment Disorder’.
Dr Lark diagnosed anxiety, depression and severe insomnia requiring ongoing medication and said Ms Meaney’s prognosis was uncertain. Associate Professor Robertson said Ms Meaney was suffering ‘Panic Disorder with Agoraphobia, with Obsessional Personality Traits’ with a differential diagnosis of Adjustment Disorder with Anxious Mood. Dr Reutens, while acknowledging that to make a retrospective diagnosis was difficult, said that in February 2009, Ms Meaney was experiencing an ‘Adjustment Disorder with Anxious Mood’ of mild to moderate severity. On balance, the Tribunal accepts the view of the majority of medical specialists that Ms Meaney, in February 2009, was suffering from Chronic Adjustment Disorder, and that this was a ‘disease’.
To be compensable, the Act requires that employment must have contributed to a significant degree to the development of the ‘disease’.[5] In deciding whether ‘an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment’, section 5B(2) of the Act indicates that consideration of a number of factors may be important. Those non-exhaustive factors are:
(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; and
(e) any other matters affecting the employee’s health.
[5] Safety, Rehabilitation and Compensation Act 1988 (Cth), s5B(1)
At the time of these events, Ms Meaney had been employed for over 30 years, for much of that time in the public service. She commenced work with the Department of Infrastructure, Transport, Regional Development & Local Government on 4 January 2005 as an Executive Level 2 in the Corporate Services Business Division. According to Ms Meaney’s statement of 13 February 2010, during her 4 years of service with that agency, she ‘received the highest performance review ratings’. In 2007, in recognition of her contribution, her performance bonus was converted to an ‘AWA at the SES Band 1 level’ and she ‘received an additional benefit of a car allowance’.
That information is supported by an end-of-cycle performance review by Mr Banham, dated 30 June 2008, that rated her performance as having ‘Exceeded Expectations’, a result also achieved in the mid-cycle review in December 2007. No review was conducted in December 2008 since such reviews generally take place in January or February, following the mid-cycle. Ms Meaney was away from work for 16.41 of the working days to 19 February 2009 and did not seek to activate the process, as it was her responsibility to do, in that time. In evidence, Mr Banham said ‘I can say quite clearly and categorically that I had no major concerns with Mary Meaney’s performance’. This history indicates there was nothing in the length of her employment, nor in the nature of, or particular tasks of, her position, which would impact adversely on Ms Meaney’s health.
However, following the restructure of her work area discussed by Ms Meaney with Mr Banham on 11 February 2009, and announced on 12 February 2009, Ms Meaney’s position had been significantly downgraded leading her to believe that she had been ‘sidelined’ and that her future in the department, at least in the MPS area, was over. She was sufficiently affected by this development to take a day off work on 12 February 2009.
Counsel for Comcare argued two things: Ms Meaney had a predisposition to development of a psychological condition; and that her condition was due predominantly to her mother’s illness, rather than any illness on her own part. That history included an episode of mental illness in 1993, and another in 1996 when Ms Meaney was hospitalised for six weeks.
Predisposition
Dr Mills’s report of 13 March 2010 indicated Ms Meaney had a past history of mental illness resulting from various stressors ‘usually related to her employment’. He reported that her condition remained generally stable with the use of Risperidone (also called Risperdal). He noted that he had needed to adjust her psychotropic medicine during her sick leave from 23 February 2009, that her condition had stabilised, and that she had no current symptoms of mental disorder. In Dr Mills’s opinion, Ms Meaney’s chronic adjustment disorder was a new condition and ‘not an aggravation, acceleration or recurrence of a pre-existing’ condition.
Mr Aldridge’s view was that Ms Meaney’s condition ‘began after the incidents in early 2009 and after it became clear to her that she was going to be … excluded from her previously senior role’, and that her condition was not related to her mental illness in 1996. Dr George considered that Ms Meaney had not suffered a psychotic episode in 1996, and her claimed condition emerged in 2009. Associate Professor Robertson considered the 1996 illness was more likely to be a severe anxiety attack, rather than a schizoaffective disorder, and although he was prepared to give more weight to underlying constitutional factors when posed with the history presented by Comcare, he said: ‘if someone has a mental illness that can affect the way in which they process their environmental sort of stimuli, that can certainly affect how they experience interpersonal interactions’, including in the workplace. Dr Reutens would not express a view as to whether Ms Meaney’s predisposition to mental illness made a contribution to her condition in 2009. She noted, however, that development of an adjustment disorder was not a natural progression of someone with personality traits which meant they were prone to exacerbations of anxiety due to stress.
The Tribunal appreciates that medical opinions are inevitably coloured by the history presented by the client. Nonetheless, medical experts are alive to this issue and generally make their diagnoses accordingly. The histories of the medical experts in this matter are also consistent. At the time of their examination of her in 2009, Dr Mills, Dr George, Mr Aldridge and Associate Professor Robertson found that Ms Meaney had an anxious disposition, rather than any underlying psychotic disorder. Nor was there a predominant medical opinion that Ms Meaney’s chronic adjustment disorder in 2009 was due to any predisposition on her part from her mental illnesses suffered thirteen years previously. Accordingly, based on the views of the majority of the medical experts, the Tribunal is not satisfied that any predisposition of Ms Meaney made a significant contribution to her condition in 2009.
Mother’s illness or employment

The next issue is whether it was her mother’s illness or her workplace which made a significant contribution to her adjustment disorder. Ms Meaney’s mother suffered her broken hip on 15 January, had an operation on the 18 January, then undertook rehabilitation, and was able to return home by 25 February for an apparently uneventful recovery period. By 19/20 February, a month after the operation, Ms Meaney was aware that her mother was on the way to getting better and was sufficiently well to be able to return home in the next week. On those dates, her mother was in safe care in rehabilitation and was progressing well. So although the initial phases of her mother’s illness were stressful, once her mother survived the operation that stress had reduced significantly.
The views of the medical experts generally agree that Ms Meaney’s employment made a significant contribution to her psychological condition. Dr Mills found that ‘the main factors which have contributed to the claimed medical condition [Chronic Adjustment Disorder] relate to alleged inappropriate work-place actions by one of supervisors… and his continuing presence at the agency adversely affected her vocational future with the department’. Dr Lark was not asked for an opinion on and did not address the causation issue, but he did note that it would be difficult for her to return to her previous position and that Ms Meaney had a negative reaction to the agency. In Mr Aldridge’s opinion, Ms Meaney’s Adjustment Disorders with Anxiety clearly related to her employment.
Dr George found that Ms Meaney’s ‘Chronic adjustment disorder related to her mother’s illness and also, the manner in which she has been treated within the workplace’ and denied that she had motivational problems. His recommendations that Ms Meaney either not return to work with the agency, or at least not to her previous work area with her previous supervisor, imply that Ms Meaney’s employment in the section, and with the supervisor with whom she worked, were significant factors in the cause of her illness.
Associate Professor Robertson found that Ms Meaney’s condition ‘relates in part to the difficulties around her mother’s hip injury, but secondly the indifferent and unhelpful response she describes experiencing from her supervisor, particularly with regards to her seeking to take leave to care for her mother’. He said her incapacity to return to work did represent a motivational issue.
Dr Reutens, in her initial report, said it was the onset of her mother’s ill-health that most significantly contributed to the onset of Ms Meaney’s condition. Later in the report, she commented that ‘it was her perception that her supervisor was being inflexible and unempathic …[that] was a significant contributing factor to the development of her psychological condition’. In her supplementary report of 23 May 2011, Dr Reutens said Ms Meaney’s symptoms referred specifically to exacerbation of her condition due to Ms Meaney’s perception that ‘her supervisor was not sympathetic to her requirements for leave when he directed her to return to work from 3 February, and when he later told her that she should apply for recreational rather than personal carer’s leave in February’. As she said, Ms Meaney’s symptoms ‘were contributed to both by her mother’s ongoing ill health and her emotional reaction to her discussions with Mr Banham regarding her leave’. In other words, Dr Reutens’s view was that both her mother’s condition and the workplace reaction to the extra demands on Ms Meaney were significant causes of her psychological condition.
The Tribunal is satisfied that there is no evidence from mid to late January 2009, in medical reports or otherwise, that it was solely due to Ms Meaney’s reaction to her mother’s condition during the acute phase of her mother’s illness that Ms Meaney had suffered from stress leading to her condition. The evidence establishes that Ms Meaney’s development of chronic adjustment disorder with anxious mood was due both to the interaction of the demands on her for her mother’s rehabilitation, and the response by her supervisor to her request for leave to assist her mother during this period. In other words both her employment, in the form of her employer’s reaction to Ms Meaney’s requests for leave to response to the circumstances, and her mother’s injury and need for rehabilitation, contributed to Ms Meaney’s stress at this time.
In summary, there was nothing arising out of the duration of Ms Meaney’s employment which led to her condition. Nor, on the medical evidence was it any predisposition on her part which led to the development of an adjustment disorder. However, a significant cause of her adjustment disorder was the events in January/February 2009. These included the restructure on 12 February 2009 which affected Ms Meaney’s duties and work relationships, and the attitude of her employers to her request to take time off to manage the position following her mother’s injury and consequential support needs. In combination it was these employment-related events which made a contribution to the development of the claimed condition.
Contribution to a significant degree
The Act requires that in the case of a ‘disease’ such as a psychological illness, employment must have contributed to the development of the condition ‘to a significant degree’,[6] that is, to a degree which is more than de minimis and is substantial or considerable.[7]
[6] Safety, Rehabilitation and Compensation Act 1988 (Cth) s5B(1)
[7] Comcare v Sahu-Khan (2007) 156 FCR536 at [15].
All the medical reports confirm that there are two principal and interrelated causes for Ms Meaney’s condition: her mother’s illness following her fall on 15 January 2009; and the reaction of Ms Meaney’s supervisor to her request for leave to care for her mother.
The evidence was that from 2 February 2009 when Ms Meaney returned to work after her mother’s fall and operation to 19 February 2009, Ms Meaney’s problems at work emerged and affected her. The conclusion of the majority of the medical experts (Drs Mills, Lark, George, Mr Aldridge and Associate Professor Robertson) was that her condition was work-related to a significant degree. That conclusion was supported by their evidence that from February 2009, Ms Meaney developed symptoms of insomnia, nightmares, being short-tempered and suffering loss of drive, as well as having a phobic reaction to her former workplace.
The timing of Ms Meaney’s cessation of work, immediately after the incidents in February which lead to the email exchanges on 19 February 2009 between Mr Banham and Ms Meaney, and the tenor of the doctors’ reports, support a finding by the Tribunal that the employment factor was a substantial causal element in the development of her claimed condition.
Nor does it matter that Ms Meaney’s condition was based on her perception of Mr Banham’s lack of sympathy for her request. As von Doussa J said in Wiegand v Comcare:[8]
…there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.[9]
[8] Wiegand v Comcare (2002) 72 ALD 795.
[9] Id at [31].
Although this statement arose under the Act in force prior to the amendments in 2007, the principle, subject to the need for a change to the test for causation from ‘material’ to ‘significant’, has not been doubted. The Tribunal finds, accordingly, that Ms Meaney’s condition was a ‘disease’ in terms of section 5B of the Act since her condition was ‘contributed to, to a significant extent’, by her employment.
The more difficult issue is to pinpoint when Ms Meaney’s condition developed.
Date of claimed injury
As Ms Meaney was suffering from a ‘disease’, the Act requires that a deemed date of injury be established. That date is either the date Ms Meaney first sought medical treatment for the disease or aggravation of the disease, or the date the disease or aggravation first resulted in incapacity for work, whichever first occurred. [10]
‘First sought medical treatment’ (section 7(4)(a))
[10] Safety, Rehabilitation and Compensation Act 1988 (Cth), s7(4).
The initial Comcare decision of 19 May 2010 found that Dr Mills, in his medical report of 18 March 2010, had stated that he first issued a sickness certificate for Ms Meaney from 23 February 2009, and that should be deemed to be the date of injury. The reconsideration decision by Comcare dated 24 September 2010 did not address this issue. Counsel agreed after discussion that the date was within the period from Thursday 19 February 2009 to Monday 23 February 2009, being the first full day Ms Meaney did not attend work.
Dr Mills’s report and his certificate suggest that the date of onset of her condition was 23 February 2009. Ms Meaney’s evidence was either that she had a consultation or that she spoke with Dr Mills on 19 February 2009. Dr Mills’s evidence is that after a consultation his clinical notes are more fulsome than when he simply issues a certificate following a call to the practice. There is nothing in his clinical notes showing a consultation with Ms Meaney on either 18/19 February 2009. So, despite Ms Meaney’s evidence, Dr Mills’s evidence suggests a consultation was unlikely, that her recollection was faulty, and that she only rang the practice on 19 February 2009.
Whether Ms Meaney spoke with Dr Mills on the telephone on 19 February 2009 is also unlikely. Dr Mills’s evidence was that if a patient rings, he enters the call in his notes. There is no notation for 18/19 February 2009 to indicate that he spoke with Ms Meaney. Ms Meaney was adamant that she had spoken with him and that he amended the certificates on the basis of the conversation.
Dr Mills’s evidence was that it ‘was possible’ that he had spoken with Ms Meaney on 19 February 2009. However, it is likely that Dr Mills would have recorded that call if it had occurred, since it may have concerned significant stress at work. That did not occur. Accordingly, the Tribunal is satisfied that Ms Meaney did not speak with Dr Mills or any doctor at the Northside General Practice on 18/19 February 2009. That is not the end of the matter.
Documentary evidence provided to the Tribunal after the hearing indicated that Ms Meaney did telephone the practice on 18 February 2009 to request a ‘sick leave form’ for the period 25 February – 15 April 2009. This evidence is taken from the message book which records telephone calls by patients to the practice. Dr Mills said that in the case of patients whose history is familiar and who had been seen recently, he would respond to the telephone request without actually seeing the patient.
The message book shows that Ms Meaney again telephoned the practice on 19 February 2009, this time to ask Dr Mills to correct the dates on the certificate. The message book for that date contains a note for Dr Mills stating ‘Mary Meaney certificate – wants change to 23/2 - 15/4 inclusive’. Dr Mills’s clinical notes for 18 and 19 February 2009 also indicate Dr Mills had issued a carer’s certificate, not a sickness certificate, on 18 February for the period 25 February 2009 to 5 April 2009. On the 19 February, the Tribunal accepts that he reissued a carer’s certificate for 23 February 2009 to 15 April 2009. Neither certificate was in evidence.
Dr Mills’s clinical notes indicate it was not until 18 March 2009 that he had a discussion in person with Ms Meaney. On that occasion he adjusted her medication, particularly her Risperdal, because of her health reactions. He described these reactions as sleep disruptions, and ‘recent stress secondary to mother’s illness’, which is taken to mean work-related stress. His report of 18 March 2010 showed he had issued the sickness certificate for 23 February 2009 to 15 April 2009 that day, following Ms Meaney’s report to him of her ‘problems at work resulting in symptoms of stress and anxiety’. He said:
I was not aware of the details however Mary stated that there were problems with her work position and that legal action was pending. Given her previous conscientious work-ethic and her noticeable worried state I decided that time away from the perceived threatening environment was the best form of management.
In these circumstances, the Tribunal is satisfied that Ms Meaney first consulted Dr Mills about her stress condition on 18 March 2009. Accordingly this could be the date of injury.
‘First resulted in incapacity for work’ (section 7(4)(b))
Before so concluding, the Tribunal must also consider whether Ms Meaney’s circumstances fall within section 7(4)(b) of the Act. The statutory criteria will be met if the symptoms of her illness were the significant cause of her absence from work on and from a date between 19 to 23 February 2009. As work made a significant contribution to her illness, the question is when did the symptoms of her illness first occur? On 19 February 2009 Mr Banham and Ms Meaney had an increasingly terse and prolonged exchange of emails. Ms Meaney’s evidence was that she felt ‘positively ill’ after the exchange of emails with Mr Banham on 19 February 2009 and that although she came to work on 20 February 2009, she was in a ‘very poor state’, that when she walked into the building ‘I didn’t want to be there’ and that she ‘felt that [she] couldn’t face another showdown either email-wise or meeting-wide with David and/or Warren’. She did not return to work after that date. The medical evidence records that this interchange contributed to her anxiety condition. The evidence also establishes that Ms Meaney did request a ‘sickness certificate’ on 18 February 2009.
Against such a finding is the coincidence of dates between her sickness certificate and her earlier foreshadowing in emails to her staff, to Mr Banham, and to Dr Mills, of her desire to have leave for that period to care for her mother. Another difficulty with a choice of date is that the most robust and hence upsetting exchange of emails between Ms Meaney and Mr Banham took place after working hours on 19 February. So Ms Meaney’s request for a sickness certificate on 18 February 2009 was made in advance of the most distressing interchange which could have precipitated her leaving work. The Tribunal finds on that evidence that little weight should be given to her requests for a sickness certificate on 18 and 19 February 2009 as an indicator on their own of her condition. However, that does not preclude other evidence supporting her claim.
In cross-examination when asked why she had not mentioned her illness in her emails to her workplace at the time she ceased work Ms Meaney’s explanation was that ‘I thought that was a feeling of weakness. I just thought that it showed… they had been successful in reducing me to a state whereby I couldn’t work anymore’. She maintained that she had sought sick leave on 18/19 February 2009 for several reasons: because she was ill, because she knew that Mr Banham could not deny it to her, and because she needed to care for her mother. As she said:
By that time I was managing my mother and that was under control and I had compartmentalised that. I did need to care for her and that was true … but I had become ill as a result of the work-related issues, and consequently while I was spending time caring for her, I had also had an illness, and this was agreed to by Dr Mills who at that stage knew that I had developed an illness myself.
Her claim that she suffered a stress reaction on or about 20 February 2009 is supported by a similar reaction on 11 February 2009 followed a meeting with Mr Banham. As a result of that meeting on 11 February 2009 about the restructure Ms Meaney said she felt ‘sidelined’ and ‘shafted’. Her reaction at that time was:
I was sweating a lot and I would break out in a sweat and my heart would race and I was just feeling nauseous, I was feeling anxious and I just – it was just the symptoms of anxiety which took over and it got to the stage where I couldn’t – I felt I could no longer cope with the stress that was happening in the workplace as a result of this type of email that I was getting.
Subsequently, she had taken a day off work on 12 February 2009. So certain interactions with Mr Banham at this time did precipitate a significant stress reaction.
Comcare argued that Ms Meaney could not have been ill because she continued to communicate with the Department on personnel matters throughout the period following 20 February 2009 and she was managing her mother’s needs throughout this time. In this regard, the Tribunal accepts that Ms Meaney had an ability to compartmentalise her commitments and control her emotions, as evidenced by the professional and responsible communications concerning work matters recorded during the days immediately following her mother’s operation.
The evidence from Ms Meaney’s consultation with Dr Mills on 18 March 2009 is also significant. Dr Mills was sufficiently concerned about her health on that occasion to suggest an additional anti-anxiety medication (Solian), to increase her dosage of Risperdal to maintain her mental stability, and for a review in a fortnight when he wanted to reassess the situation. He was also prepared to certify that Ms Meaney had been unfit for work between 23 February 2009 and 15 April 2009, and to issue a backdated sickness certificate, contrary to his usual practice, in recognition of the deterioration of her condition. The Tribunal found Dr Mills to be a credible witness.
The predominant view of the other medical experts was that a significant cause of Ms Meaney’s condition was the events in the workplace in February 2009, including that she had been sidelined, and her work contribution devalued, leaving her future uncertain. However, none of the reports is sufficiently clear to assist with identification of a precise date of Ms Meaney’s illness. Dr Lark’s evidence was that when he saw her in July 2009, she remained unfit for work. Mr Aldridge’s views were simply that the effects of the restructure and the problems over the PCL certificate, which occurred in February 2009, were the precipitant for her condition. Associate Professor Robertson’s view was that it was the interactions with Mr Banham which were a cause of her condition. Dr Reutens noted that Ms Meaney’s ‘symptoms worsened from February 2009 with sleep disturbance, nightmares, feeling short tempered, that she had lost her drive and headaches … generalised anxiety’ especially in crowds.
On balance the Tribunal is satisfied that the deemed date of injury was 20 February 2009. The Tribunal so finds for the following reasons:
·Ms Meaney’s agitation caused by the emails on 19 February 2009, coupled with evidence of a similar absence 9 days earlier following another difficult interchange with her supervisor suggesting a cumulative reaction by Ms Meaney to the events in the workplace had precipitated Ms Meaney’s illness around 20-23 February 2009;
·The fact that Ms Meaney did not attend work from 23 February 2009 and has not returned despite evidence of a strong work ethic;
·The fact that the medical witnesses indicated that her condition arose from the events in February 2009 and that her reaction was of sufficient moment to render her not fit to return to work at all until September (Dr George), initially October (Dr Mills) although he continued to issue her with certificates until February 2010;
·The views of the medical experts that Ms Meaney should not return to the same position or supervisor, implying that these events in February precipitated her condition.

Finally, there is no alternative explanation in the period 19 February to 18 March 2009 and beyond for Ms Meaney’s continued absence from work. Ms Meaney’s mother remained in respite care undergoing rehabilitation until 25 February 2009, and thereafter the evidence including from Dr Mills, was that her recuperation was uneventful, indicating that her need for assistance from Ms Meaney had reduced significantly.
Accordingly, as at 20 February 2009, the Tribunal’s findings are that Ms Meaney had suffered a disease, namely, adjustment disorder with anxiety, that was contributed to, to a significant degree, by her employment by the Commonwealth. That is sufficient to establish liability under section 14 for the condition, subject to consideration of the exclusionary considerations in section 5A of the Act.
‘Reasonable administrative action’
The decision under review rejected Ms Meaney’s claim solely on the basis that her condition was due, to a significant degree, to ‘reasonable administrative action taken in a reasonable manner’ and was, accordingly excluded from being a compensable ‘injury’.[11]
[11] Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1), 5A(2)
In its reviewable decision, Comcare indicated by implication that the refusal of PCL for Ms Meaney by Mr Banham was the administrative action. During the hearing, Comcare referred to ‘denial’ of PCL for the period 23 February to 15 April 2009 as the administrative action. Counsel for Ms Meaney indicated that the events of the week commencing 2 February 2009, the PCL leave request for the period beginning 23 February, as well as removal of Ms Meaney from her position as Director of MPS were all administrative actions. In the pre-hearing documents the parties did not list which actions were administrative. As the reasoning in Commonwealth Bank of Australia v Reeve indicates, it is necessary to identify with some precision what are the alleged administrative actions when arguing that the exclusionary provisions apply.[12]
[12] Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 at [44]-[48].
From these submissions and the evidentiary material presented to it, the Tribunal has identified the following as potential ‘administrative actions’. Each has contributed to varying degrees and with cumulative effect to the stress condition experienced by Ms Meaney culminating in her cessation of work on 20 February 2009. They are:
·The initial denial by Mr Banham on 2 February 2009 of PCL for the period 2-6 February 2009;
·The indication by Mr Banham on 3 February 2009 that he believed recreation leave, not PCL, was the appropriate leave for Ms Meaney to take for the six weeks she needed to look after her mother;
·The actions involved in the restructure which Mr Banham communicated to Ms Meaney on 11 February 2009, including that a colleague would head the new Branch;
·The implied criticism of Ms Meaney as Director of MPS communicated by Mr Banham to Ms Meaney by email on 19 February 2009;
·The communications between Mr Banham and Ms Meaney on 19 February 2009 relating to Ms Meaney’s applications for variations to her leave request for the week commencing 3 February 2009.
The Tribunal is aware that if any one of the actions identified as ‘administrative actions’ is a material cause of Ms Meaney’s claimed condition, her condition will not be considered to be a compensable ‘injury’ under section 14 of the Act.[13] As the Full Court of the Federal Court found in Hart v Camcare[14] the exclusion applies where administrative action (in that case a failure to obtain a promotion) 'materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion'.
[13]Hart v Comcare (2005) 145 FCR 29 at [21].
[14] Hart v Comcare (2005) 145 FCR 29 at [23].
The Full Court of the Federal Court has explored what is meant by ‘administrative action’ in Commonwealth Bank of Australia v Reeve[15] (Reeve). The judgments by Gray J and the joint judgment of Rares and Tracey JJ concluded that a distinction should be drawn between ‘operational actions’ and ‘administrative actions’. As Gray J said:
It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.[16]
[15] Commonwealth Bank of Australia v Reeve [2012] FCAFC 21.
[16] Id at [30]
His Honour went on, ‘operational’ matters relate to ‘the activities or business of the institution or enterprise’. As he put it:
Thus an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as ‘administrative’ action, but as operational action with respect to the employee’s employment.[17]
[17] Id at [31]
By contrast, he said, the exclusionary provisions in section 5A were intended to cover ‘legitimate human resource management actions’, but to exclude matters of ‘general administration, management and the implementation of policy’.[18]
[18] Id at [33].
Rares and Tracey JJ concluded that the ‘operational’ aspects of employment refer to the ‘ordinary incidents of the employment: ie of the employee performing … work or as a part of … duties or activities as an employee’. By contrast, ‘administrative action’, their Honours said, refers to ‘action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment’.[19]
[19] Id at [27].
In other words, ‘operational action’ refers to the nature and duties including particular tasks of an employee; ‘administrative action’ covers action by an employer directed specifically to an employee, compendiously described as human resource management interaction. So although the listed examples in section 5A(2) of the Act are not exhaustive, they are limited in nature. The consequence is that in the case of an ‘injury’ which is a ‘disease’, ‘administrative action’ will often be a subset of the employment actions which have contributed, to a significant degree, to cause the injury or disease.[20] That is illustrated in this case. It was the cumulative effect of the interactions between Ms Meaney, Mr Banham, and to an extent Mr Fletcher (see next), that contributed to a significant degree to Ms Meaney’s mental state, and were causal of her condition. However, not all these interactions can be classified as ‘administrative actions’.
Application of principles to identified ‘administrative actions’
[20] Cf Id at [57] and [60] per Rares and Tracey JJ.
The actions of Mr Banham in undertaking the restructure without informing Ms Meaney until it was about to be announced related to the nature and duties of employment within the Division and were not ‘administrative actions’ relating to Ms Meaney. They are ‘operational’ actions and do not fall within the exclusionary provisions.
Ms Meaney’s change of tasks and loss of her position as Director of MPS were argued by counsel for Ms Meaney to be among the actions which were causative of her mental disorder. However, these too would be ‘operational’ not ‘administrative’ actions and do not fall within the exclusionary provisions. This was a relocation decision, a policy choice by the agency as to the deployment of its personnel. In any event, since Ms Meaney was not informed of the details of her revised role until Mr Fletcher emailed and telephoned her on 15 April 2009, these actions occurred after the date of injury and cannot be considered.
A third example is not so clearcut. The email from Mr Banham on 19 February concerning the need for an improvement of the performance of MPS is prima facie also ‘operational’ rather than ‘administrative’. Mr Banham said in evidence that the email which had been triggered by an email of Ms Anderson, not Ms Meaney, was a ‘criticism of us, of MPS’ as a collective, rather than of Ms Meaney. The communication called for improvement in the performance of the section as a whole; it was not management action directed to a particular employee. At the same time, Mr Banham conceded that the comment about the Director of MPS, Ms Meaney, was a criticism of her. However, the criticism can be regarded as an example of steps the sections as a whole could take to improve the performance of the section. On that basis, the Tribunal finds that this action is ‘operational’ and not ‘administrative action’.
That leaves for consideration the matters concerning Ms Meaney’s applications for leave and the communications concerning those applications on 2 February 2009, 3 February 2009 and 19 February 2009. The ability to take PCL (carer’s leave), was included in Ms Meaney’s AWA and as such can be classified as an incident of her individual contract of employment. These actions in relation to PCL were actions directed to Ms Meaney as an employee, were taken by her employer, and were ‘administrative actions’.
The consideration of these actions requires attention to several issues:
·Whether personal carer’s leave is a ‘benefit’ for the purposes of section 5A(2)(f) of the Act.
·If personal carer’s leave is a benefit, whether the denial of that benefit was a significant cause of Ms Meaney’s claimed condition?
·Were the actions involved in the denial of the benefit ‘reasonable administrative actions’?
·Were the actions involved in the denial of the benefit undertaken ‘in a reasonable manner’?
Whether personal carer’s leave is a ‘benefit’ for the purposes of section 5A(2)(f) of the Act.
Section 5A(2)(f) includes as an ‘administrative action’ ‘ … anything reasonable done in connection with the employee's failure to obtain a … benefit, or to retain a benefit, in connection with his or her employment’.
Counsel for Ms Meaney contended that PCL was an employee entitlement not a ‘benefit’, and was therefore excluded from section 5A(2)(f). The argument was based on the terms of Ms Meaney’s AWA. In 2009 Ms Meaney’s AWA provided: ‘All applications for leave are subject to the approval of your supervisor’ (B2.2); ‘your PCL [Personal Circumstances Leave] includes the employee’s entitlements to paid person/carer’s leave and paid compassionate leave under the Australian Fair Pay and Conditions Standard’. The Australian Fair Pay and Conditions Standard provided, as relevant, that PCL was ‘leave to provide care or support to a member of the employee’s immediate family or household as they are suffering either a personal illness, injury or an unexpected emergency’.[21] Section B of the AWA distinguishes between ‘entitlements of service such as personal circumstances and carers leave as conditions of service’ as compared with ‘salary, remuneration and other benefits’ described separately in the AWA. The distinction was argued to be supported by the terms of the Australian Fair Pay and Conditions Standard, authorised by the Workplace Relations legislation. The contention was that as an ‘entitlement’, PCL could not be a ‘benefit’.
[21] Australian Fair Pay and Conditions Standard fact sheet, 15.
In Trewin v Comcare[22] Heerey J described a ‘benefit’ in these terms:
In my opinion the term ‘benefit’ in s 4[23] is not restricted to something which is a matter of charity or gratuity. The Macquarie Dictionary gives two relevant meanings for the noun ‘benefit’:
‘1. an act of kindness. 2. anything that is for the good of a person or thing’ To some extent the meanings overlap, with the latter being broader.
I think that the word is used in s 4 in the latter sense, which does not necessarily exclude something obtained as a matter of right. An example of this usage is in the term ‘medical benefit’, which means a payment to which an insured person is entitled as a matter of contractual right.
Moreover the concept of ‘failure ... to obtain a promotion, transfer or benefit in connection with ... employment’ has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems. Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations. I think the intention to be deduced from the exception to the definition of ‘injury’ in s 4 is that Parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable.
In the passage already quoted the Tribunal held that the exception applied because the obtaining of a permanent position was ‘not a right’. But the question whether permanency, in the circumstances of the applicant's employment in September 1995, could be characterised as a right, was not relevant. For the reasons mentioned, a benefit (or promotion or transfer) to which an employee is entitled as a matter of right - in the sense of something being legally or administratively enforceable - is nonetheless within the exception.[24]
[22] Trewin v Comcare (1998) 84 FCR 171.
[23] Now section 5A(2). The relevant terms are the same.
[24] Trewin v Comcare (1998) 84 FCR 171 at 176-77.
That description is cited frequently and the decision has not been doubted on facts akin to these.[25] The consequence is that even if obtaining PCL can be considered to be an ‘entitlement’ or a ‘right’, under the APS industrial relation regime to which Ms Meaney was subject, the grant of PCL would be classified as a ‘benefit’ for the purposes of section 5A(2)(f).
If personal carer’s leave is a benefit, whether the [initial] denial of that benefit was a material or operative cause of Ms Meaney’s claimed condition
[25] Cf Re Kelly and Comcare (2006) 93 ALD 658.
The ‘administrative action’ covered by section 5A(2)(f) refers to a ‘failure to obtain a … benefit’. There is an argument that in Ms Meaney’s case there has not been any ‘failure to obtain a benefit’. Although Ms Meaney was initially denied PCL leave by Mr Banham, for 2-6 February 2009, and 23 February to 15 April 2009, ultimately Mr Banham did grant PCL for both periods. On 11 February 2009 Ms Meaney received his approval for her periods of PCL (carer’s leave) for 2-6 February 2009; and on 6 April 2009, she was advised that her PCL (sick leave) for 23 February to 15 April 2009 had been granted. In those circumstances, there was ultimately no ‘failure to obtain’ PCL by Ms Meaney. If that argument was accepted the exclusionary provisions do not apply to any of the administrative actions taken by Mr Banham. On that basis, since it has been established that employment was a significant cause of Ms Meaney’s claimed condition, her claim does amount to an ‘injury’ and is compensable under section 14 of the Act.
The Tribunal is not prepared to rely on this technical reading of the provision. That caution is due to the expression ‘in connection with’ in section 5A(2), an expression taken to have a broad connotation.[26] Since it was the initial refusal of the request for PCL for 2-6 February, and the initial indication on 3 February, which were the actions which distressed Ms Meaney, it is that initial refusal which was a significant element of the cause of her condition and the Tribunal finds that Mr Banham’s initial refusals were actions ‘in connection with’ a failure to obtain PCL. A further reason for that caution is that the examples listed in section 5A(2) are not exhaustive, and the actions taken by Mr Banham vis-à-vis Ms Meaney in relation to PCL do fall within the meaning of ‘administrative action’, being action by an employer with respect to Ms Meaney as an employee taken in relation to her employment. For this reason the Tribunal considers whether Mr Banham’s actions in relation to Ms Meaney’s application for carer’s leave were reasonable and were taken in a reasonable manner.
[26] Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at [37].
The response to this issue overlaps with the general requirement in section 5B(1) that to be a compensable ‘disease’ the employee’s employment must have contributed to a significant degree to the contracting of the condition under consideration. The Tribunal has already established that Ms Meaney’s employment was a significant, but not the sole contributor to Ms Meaney’s psychological condition. The circumstances of the employment which led to the finding that employment contributed, to a significant degree, to a ‘disease’ can comprise a combination of operational and administrative actions or conduct (section 5B(1) of the Act).[27] Such was the case in this instance. It is only the ‘administrative action’ subset of those actions or conduct which is capable of excluding liability (section 5A of the Act).
Were Mr Banham’s actions ‘reasonable’?
[27] Cf Rares & Tracey JJ in Reeve at [56].
Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful.[28] What is reasonable is also assessed objectively and relates to the specific conduct involved.[29] Dr Campbell explored the concept of reasonableness in Re Georges and Telstra Corporation Ltd where he said:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound (sic) of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair.[30]
[28] Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 at 83 (Cooper J).
[29] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[30] Id at [22] (Dr Campbell).
In addition, for ‘administrative action’ to be reasonable, it must be established that there was nothing ‘untoward’ about the actions involved.[31] The actions must also not be ‘irrational, absurd or ridiculous’.[32] Whether an administrative action is reasonable is ordinarily a question of fact for the Tribunal.[33]
[31] Re Gilbert and Comcare [2009] AATA 224 at [33] (DP Hack).
[32] Repatriation Commission v Webb (1987) 13 ALD 421, 421 (Beaumont J).
[33] Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 154 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ), cited in Drenth v Comcare [2012] FCAFC 86 at [26].
The issue is whether Mr Banham’s refusal of Ms Meaney’s application for PCL to look after her mother during her rehabilitation was reasonable action by a supervisor. That question must be considered in light of the principles governing the grant of PCL, the history of Ms Meaney’s requests for leave, the operational needs of the agency, and the circumstances which led to Ms Meaney’s request.
In considering the first of these issues, attention must be given to the various rules and policies governing the application for PCL leave. In this case PCL is covered by several documents. Ms Meaney’s AWA provides: ‘Your PCL entitlement includes the employee’s entitlements to paid person/carer’s leave and paid compassionate leave under the Australian Fair Pay and Conditions Standard’ (B5.2). The Australian Fair Pay and Conditions Standard (AFPC Standard) provides that ‘Personal leave’, including sick leave, carer’s leave and compassionate leave, is an entitlement. The purpose of Carer’s leave is ‘to provide care or support to a member of the employee’s immediate family or household member who requires care or support as they are sick or injured or has an unexpected emergency’.
The AFPC Standard establishes safety net provisions. Departmental agreements and individual AWAs can provide other, more beneficial, provisions provided they meet the minimum AFPC Standard. The AWA also states that it may be subject to any departmental policies affecting the person’s employment (A2.1). It was accepted that the Department had developed such policies, one being the Department of Infrastructure’s Working Hours and Leave Employment Guidelines[34] (Guidelines); and another was the DOTARS Human Resource Procedures booklet.[35]
[34] Department of Infrastructure, Working Hours and leave Employment Guidelines (revised March 2007)
[35] Department of Transport and Regional Services, DOTARS Human Resource Procedures booklet (revised May 2007)

The prefatory words in the Guidelines and the booklet describe PCL as being used ‘in a range of circumstances to enable employees to deal with unexpected and emergency situations’. A guiding principle for the application for PCL is that ‘all applications … will be considered sympathetically subject to operational requirements’.[36] Examples of use of PCL include:
·where ‘a member of the employee’s immediate family … requires care and support because of personal injury or an unexpected emergency;
·family responsibilities including caring for the elderly (other than those which can generally be planned for (eg school holidays));
·emergency situations.[37]
[36] Guidelines, cl 2.
[37] Id, cl 6.
The circumstances for ‘approval of PCL’ state ‘If … long periods of leave are requested – supporting documentation may be required if the supervisor so decides’.[38] In addition, the ‘history of PCL usage’ may be taken into account ‘when deciding whether ... to approve PCL with pay’.[39]
[38] Id, cl 9.
[39] Id, cl 10.
Ms Meaney’s mother is a member of her immediate family. She needed Ms Meaney’s ‘care and support’ since Ms Meaney was her sole carer. Ms Meaney had a sister in Timor, one brother doing an anaesthetist course in Bendigo, and two other brothers in Canberra, whose ability to care for their mother was not raised as a possibility. Evidence was given that one of the Canberra brothers was diagnosed with cancer in 2009. The circumstances surrounding her mother’s broken hip certainly involved a ‘personal injury’ and were ‘unexpected’. Prima facie, the circumstances fall within the rules and policies relating to the grant of PCL (carer’s leave).
Ms Meaney’s history of leave requests indicated that in 2008 she had taken 29 days of PCL leave, only 10 days of which was for family leave, presumably for care of her mother. All the leave was for one or two days only with one exception, namely a six day period of sick leave, in October 2008. Most of that leave - twenty days - occurred in the second half of 2008. It was during this period that Ms Meaney’s mother had a severe infection. Ms Meaney took 20 days of PCL leave in 2007. So there was an increase of about one third in 2008. No information was provided to the Tribunal as to average or reasonable usage of PCL for EL2 officers. Given that PCL includes sick leave, the Tribunal considers that in 2007 to 2008 the usage, although on the high side, was not excessive.
This pattern of leave taking, with the exception of the 6 days’ sick leave period, suggests no lengthy periods of leave. Ms Meaney’s evidence was that she had negotiated a flexible arrangement for her presence in the workplace in order that she could care for her mother. She did so prior to acceptance of the position in MPS. This fact, together with her history of only taking one to two days carer’s leave at a time did not indicate abuse of her position. In addition, the acceptance by Mr Chandler and Mr Banham of this pattern of leave and their willingness to grant her leave when requested had raised an expectation that she would be permitted to continue to take at least short periods of leave as required. Indeed, at the hearing, Mr Banham conceded that Ms Meaney had been using PCL over the previous years and that ‘was never an issue’. The only change, therefore, was her request for two lengthier periods of leave: five days in the first instance, and about six weeks in the second.
The agency policies contemplate longer periods of leave for ‘family responsibilities including caring for the elderly’. An exception is indicated, namely, for longer periods ‘which can generally be planned for (eg school holidays)). School holidays occur regularly; the circumstances relating to Ms Meaney’s mother arose from an emergency - her broken hip - and were non-recurrent. So prima facie PCL (carer’s leave) would have been available for the longer period, subject to approval and provision of a certificate. Mr Banham’s evidence was that he believed this was going beyond the ‘spirit of PCL’. On the basis of this belief he said at the meeting with Ms Meaney, although they had discussed PCL (Carer’s leave) as a possibility, it was his belief that at the end of the meeting, Ms Meaney had agreed that as she had sufficient annual/long service leave she would put in an application for one of those forms of leave for the projected period. He also noted that timing of taking annual or recreational leave was discretionary and depended on operational requirements. Ms Meaney’s evidence that Mr Banham had agreed to her checking the position with human resources does not accord with his recollection.
Request for PCL (carer’s leave) on 2 February 2009
On 2 February 2009, Ms Meaney’s mother had successfully survived the emergency and acute phase of her illness, including the operation, was undergoing rehabilitation and was in residential care. As the only sibling with power of attorney, Ms Meaney was the person who needed to make these arrangements since she alone could pay tradespeople and others involved. Ms Meaney’s actual absences from work during the week of 2-6 February - some 47 per cent of the week - indicate those needs. On 3 February 2009, at the meeting between Mr Banham and Ms Meaney he conceded that she could take time off during that week when needed, to manage these arrangements for her mother.
In these circumstances, it was not unreasonable for Mr Banham initially to have refused Ms Meaney’s application for PCL (Carer’s leave) on 2 February 2009. This was two and a half weeks after her mother’s fall and two weeks after the operation. Looking at the issue objectively, it was known by then that Ms Meaney’s mother would recover and the crisis was past. Operational requirements, namely, the resumption of Parliament and the Senate Estimates hearings the following week, and the fact that Ms Meaney was Director of MPS and as such would be pivotal in providing briefings for the agency in the event that the department was called before the Senate, justified his decision.
In addition, the Tribunal takes into account the fact that Mr Banham’s initial decision was modified after contact with Ms Meaney on 3 February 2009 when he agreed she could take time off during that week to attend to matters for her mother. So overall his actions were reasonable. However, these administrative actions did not precipitate Ms Meaney’s symptoms and cause her to cease work. In other words, although the actions may have been reasonable they did not make a material or operative contribution to Ms Meaney’s condition and hence would not fall within the exclusionary provisions in section 5A of the Act.
Request for PCL (carer’s leave) from 23 February 2009
That leaves for consideration the subsequent request on 3 February 2009 for the lengthier period of PCL (carer’s leave) for the period after Mrs Meaney’s mother returned home. There is a dispute about the content of the discussions concerning the longer period of leave. Mr Banham’s evidence was that the initial discussion he had with Ms Meaney on 3 February 2009 about her taking PCL for six weeks to care for her mother was that leave for that length of time was ‘no longer covered under the sort of incidental provisions’ [for PCL]. He expressed the view that lengthy periods of leave were outside ‘the spirit of PCL’.
There is some force in that argument, in that an example in the Guidelines indicates that, for regular and lengthier periods of leave such as school holidays, ‘which can generally be planned for’, PCL was not appropriate. However, the circumstances of the request were not ‘regular’ even if lengthy, and hence were not on all fours with the example. Moreover, the Guidelines do envisage longer periods of PCL. Clause 9 states that ‘If … long periods of leave are requested – supporting documentation may be required if the supervisor so decides’ which implies that lengthier periods of PCL leave are acceptable. Equally, the description of long service leave in clause 13 of the Guidelines, states: ‘In some cases, LSL may be granted if an employee needs to continue on long-term PCL’. These indications suggest that Mr Banham’s understanding of ‘the spirit of PCL’ was inaccurate. However, his expression of his view of ‘the spirit of PCL’ was not ‘irrational, absurd or ridiculous’. Hence for him to express that view to Ms Meaney was not unreasonable. However, that is not the end of the matter.
Ms Meaney said when she first made the request for PCL for this period the conversation became heated. To resolve the difference of view she had suggested she obtain advice from personnel. Mr Banham in an email of 23 February 2009 denies that she made such a suggestion and that he acceded to it. The Tribunal finds that although no evidence was provided in writing that Ms Meaney sought advice from personnel, Ms Meaney's email to Mr Fletcher on 23 February 2009 and to Mr Banham on 26 February 2009, where she makes reference to specific details of advice on this issue from a named personnel officer, advice which is consistent with the Guiudelines,, supports her view that he did agree to her doing so.
The Tribunal notes that it is unlikely that the conversation would have become heated had Ms Meaney not disagreed with his initial response. In addition, in his testimony Mr Banham said that had Ms Meaney questioned his decision that she take annual/long service leave instead, he may have decided otherwise. The reference to a heated conversation casts doubt on Mr Banham’s indication that if Ms Meaney had disagreed with him he may have changed his opinion about usage of PCL. On this issue, the Tribunal is satisfied that Ms Meaney's view of the conversation was more accurate than Mr Banham's.
Nonetheless, the position was that as at 20 February 2009, the date of injury, Ms Meaney had made an oral and informal request for PCL for a six week period for the period when her mother returned to her home but no formal request had been lodged, nor had a decision on any leave application been made. However, the evidence indicates that Ms Meaney did formally request PCL (carer’s leave) through SAP, presumably some time after she had obtained the revised certificate from Dr Mills on or by 23 February 2009, since Mr Banham notified her on 2 March 2009 by email that he disagreed with her understanding of the Guidelines, and had formally declined her application through SAP. That means, no decision about Ms Meaney’s leave for the period 23 February to 16 April 2009 had formally been taken on or before 20 February 2009. So no administrative action had arisen at the date of injury. That means that as at the date of injury, no adverse administrative action in relation to Ms Meaney's request for PCL for six weeks to care for her mother had been made. On that basis, the initial indication by Mr Banham that he would not grant such a request could not have made a material or operative contribution to Ms Meaney's injury on the deemed date of her injury of 20 February 2009.
Other administrative actions on 19 February 2009
The only other administrative actions on or before 20 February 2009 are those in the exchange of emails between Mr Banham and Ms Meaney on 19 February. The first administrative action related to Ms Meaney’s request for an adjustment of the attendance record to reflect her presence at work in the period 3-6 February 2009. Mr Banham responded by granting the approval. So it was not that action which precipitated Ms Meaney’s leaving work. What did upset Ms Meaney was the email interchange between the two concerning her attendance, her position and her attitude to her job.
The comments of Mr Banham relating to Ms Meaney as an employee were contained in Mr Banham’s email at 6.27pm, where he stated: ‘You currently enjoy SES terms and conditions re your remuneration but essentially operate under arrangements similarly to APS4-6 flex-time’. However, he concluded: ‘This is an issue I need to address, or at least understand, but it can wait until you return from leave’. The second comment was in response to the preceding email from Ms Meaney when she said ‘My expectation of attendance is that my obligation is to work whatever hours is [sic] required to do the job’. To which Mr Banham responded by email at 10.55pm: ‘Mary, Your actions are inconsistent with your email. You know my issue is not with your use of PCL – it is about your approach to your job’. However, he tempered this response by saying ‘I don’t think it is useful in pursuing this conversation by email. Can you please arrange a meeting with [his secretary] so we can discuss in person’.
This exchange led Ms Meaney to say ‘I felt I couldn’t face another showdown either email-wise or meeting-wise with David and/or Warren [Fletcher]’. It was the cumulative impact of these interchanges which led to her reactions in the workplace when she attended on 20 February 2009 and ultimately to her not returning to work from 23 February 2009.
These interchanges, involving an expression of opinion by Mr Banham about Ms Meaney’s performance, were not undertaken in a reasonable manner. To send emails of that kind to an employee on performance issues was not reasonable. In a section involved with parliamentary business, contact with employees by email or otherwise outside standard working times is to be expected. But that contact should be confined to business issues, and should not include personnel issues, particularly when the comments were critical.
The unreasonableness of the interchanges is also affected by the context in which they occurred. Ms Meaney in the previous weeks had experienced an initial refusal of her request for PCL (carer’s leave) for the week commencing 2 February 2009; her recall to work that week, albeit with permission to seek time off to assist her mother; the meeting with Mr Banham in which Ms Meaney was informed without warning that her section was to be relocated within a branch, that another person at the same level as her had been chosen for the time being to head the branch resulting in a downgrade of her status and loss of her stature; doubts by Ms Meaney that a period of leave she needed to care for her mother would be granted; criticism of her performance in an email from Mr Banham copied to her immediate supervisor and to the person acting in her position. Further, Mr Banham’s likening Ms Meaney’s referral to her leave credits as behaviour of a junior public sector employee not someone in the Senior Executive Service; and his direct criticism of her attitude to her job, must be seen against the background of the deterioration in the relationship between the two.
The Tribunal doubts that the remarks in the emails can be categorised as ‘administrative actions’. They are negative comments, but in neither case do they precede actions in respect of Ms Meaney’s employment such as warning of adverse consequences unless improvement in performance occurs, or informal counselling. Even apart from that finding, the Tribunal concludes that the actions were not conducted in a reasonable manner. To make comments of that kind in an after-hours email exchange with an employee with whom a supervisor is having a difficult and deteriorating relationship, on a day when that person’s performance, again without prior warning to the person, was categorised to fellow employees as inadequate, was inappropriate, and could not be regarded as ‘fair, tolerable, or what might be expected’. They were 'untoward' management or administrative actions in the circumstances.
In conclusion, since the Tribunal has found that the initial refusal of PCL (carer’s leave) by Mr Banham on 2 February 2009 was insufficient on its own to have been regarded as material or operative and so have precipitated Ms Meaney’s not returning to work from 23 February 2009, and the remaining actions were either not administrative actions or were not conducted in a reasonable manner, the decision under review is revoked. In substitution, the Tribunal finds that Ms Meaney’s adjustment disorder with anxious mood is compensable under section 14 of the Act.

I certify that the preceding 175 paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
.................................[sgd].......................................
Associate
Dated 13 June 2012

Date(s) of hearing 20 - 22 February 2012

Date final submissions received 01 May 2012

Counsel for the Applicant Ian Bradfield

Advocate for the Applicant William McCarthy

Solicitors for the Applicant Bradley Allen Lawyers

Counsel for the Respondent Peter Woulfe

Advocate for the Respondent Luke Woolley

Solicitors for the Respondent Sparke Helmore

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/5151
Re	MARY MEANEY
APPLICANT
And	COMCARE
RESPONDENT

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER
Date	13 June 2012
Place	Canberra

Date(s) of hearing	20 - 22 February 2012
Date final submissions received	01 May 2012
Counsel for the Applicant	Ian Bradfield
Advocate for the Applicant	William McCarthy
Solicitors for the Applicant	Bradley Allen Lawyers
Counsel for the Respondent	Peter Woulfe
Advocate for the Respondent	Luke Woolley
Solicitors for the Respondent	Sparke Helmore