Morrison v State of Tasmania

[2025] TASSC 5

[2025] TASSC 5

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Morrison v State of Tasmania [2025] TASSC 5
PARTIES:	MORRISON, Jason
v
STATE OF TASMANIA
FILE NO:	2726/2024
JUDGMENT  APPEALED FROM:	State of Tasmania (Department for Education, Children and Young People) v KNN [2023] TASCAT 162
DELIVERED ON:	18 February 2025
DELIVERED AT:	Hobart
HEARING DATE:	7 February 2025
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Workers' Compensation – Proceedings to Obtain Compensation – Determination of Claims – Appeals, Judicial Review and Stated Cases – Question of Law – Particular Cases – Whether tribunal erred in applying s25(1A) of Workers Rehabilitation and Compensation Act 1998 (Tas) in decision to cease compensation payments to appellant – Tribunal erred in law by failing to consider whether action of employer was reasonable or taken in a reasonable manner – no arguable case that worker's injury was caused by reasonable administrative action taken in a reasonable way – Appeal allowed.

Aust Dig Workers Compensation [341]

Workers Rehabilitation and Compensation Act 1998 (Tas) s 25(1A), 81A

Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) ss 136(1), 138

Cases cited:
Burrage v Rural Press Limited [2013] TASSC 43
St Helens Oysters v Coatsworth [2007] TASSC 90
Vos Construction and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38

Work Cove Corporation of South Australia v Summers (1995) 65 SASR 233

REPRESENTATION:

Counsel:

Appellant:	B Hilliard
Respondent:	L Taylor

Solicitors:

Appellant:	Hall Payne Lawyers
Respondent:	Office of the State Litigator

Judgment Number:	[2025] TASSC 5
Number of paragraphs:	58

Serial No 5/2024

File No 2726/2024

JASON MORRISON v STATE OF TASMANIA

REASONS FOR JUDGMENT MARSHALL AJ 18 February 2025

1             The appellant has appealed from a decision of the Tasmanian Civil and Administrative Tribunal ("the Tribunal"). In that decision, it was ordered that the appellant's weekly payments of compensation under the Workers Rehabilitation and Compensation Act 1998 ("the Act") not be paid to him by the respondent.

Factual background

2             The appellant is an employee of the respondent within its Department of Education, Children and Young People. He is a secondary school teacher who was last engaged in the Futures Programme at Rosny College. That programme is located on the other side of Kangaroo Bay from the main Rosny College campus, at what is called "the Annex", along Cambridge Road. It is described in promotional material used by the college on-line as:

"a personalised learning programme aimed at enhancing educational outcomes and
engagement of students through a variety of curriculum choices…".

3            It appears to be designed to assist students who would not fit within the usual programmes for secondary students at Rosny College.

4             The appellant commenced to work full-time in the Futures Programme in 2022 and was so engaged until 4 April 2024, the date on which he sustained the injury which is the subject of this proceeding.

5            In the Futures Programme, he held the role of "Classroom leader". In that capacity, he had a role in supporting other teachers involved in the Futures Programme.

6            On 21 May 2024, the respondent received a Workers Compensation claim from the appellant. The appellant claimed compensation for a psychological injury that occurred on 4 April 2024:

"Due to accumulation of violent student behaviour and staffing concerns".

The form stated the appellant stopped work on 4 April 2024.

7            The appellant's claim relates to a "stress" injury, which is an illness or disorder of the mind in the context of the opening words of s 25(1A) of the Act. Section 25(1A) of the Act provides that:

"Compensation is not payable under this Act in respect of a disease which is an illness

of the mind or disorder of the mind, which arises substantially from –

(a)	reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or
(b)	a decision of an employer based on reasonable grounds not to award or provide a promotion, transfer or benefit in connection with a worker's employment; or

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(c)	reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment; or
(d)	the failure of an employer to take action of a type referred to in paragraph (a), (b) or (c) in relation to a worker, in connection with the worker's employment if there are reasonable grounds for not taking that action; or
(e)	reasonable action taken by an employer, under this Act, in a reasonable manner, affecting a worker."

8             On 1 July 2024, the appellant was assessed by Dr Rosemary Schneider. Dr Schneider produced a report, dated 11 July 2024. Dr Schneider noted that the appellant had been the subject of "a really bad assault" by a student in 2012. Dr Schneider also referred to an incident in 2022, in the Futures Programme, when a student raised a chair and threatened to throw it at the appellant. Subsequent to that incident, the appellant placed his desk against a wall, so that no student was able to approach him from behind. In 2023, a male student threatened his girlfriend, at the premises where the Futures Programme was conducted, with a knife. The appellant intervened by standing between the two people. In an incident in early 2024, two female students had a "pretty brutal" fight in the school carpark, which spread onto a four lane highway and stopped traffic. When school administration refused to remove the two girls associated with the conflict, from the programme the appellant was in charge of, the appellant became so upset that he went home on that day.

9             The appellant complained to the Assistant Principal about the two girls, as well as the absence of policies at the school regarding safety and evacuation issues. The appellant was concerned about students with violent tendencies being re-admitted into the building where the programme he was involved in was being conducted. The appellant became involved in an uncomfortable conversation with the Assistant Principal and the Principal about re-admission of the offending students. The appellant was so stressed that he went home. He was told of the fact that a decision was made to re- admit the relevant students without his input being sought regarding that decision.

10           The above is a brief description of the events leading to the appellant's injury. The Court will discuss in greater detail the legal significance of what occurred, or what did not occur, at the meeting on 4 April 2024, later in these reasons.

11           In her summary and assessment section of her report, Dr Schneider referred to the appellant as being a classroom leader since 2022, in a programme designed to deal with difficult and disaffected students. Dr Schneider referred to the appellant as being very much affected by the 2012 assault on him by a student, and to him being adversely affected by the two later incidents at the school, which included a chair being thrown at him, and the knife incident referred to above.

12          The appellant's stress was exacerbated by a fight initiated by girls who attended the Futures Programme against boys in the programme, off the school campus. Dr Schneider said:

"The two sisters were removed from the programme, but their two friends were allowed back to the Re-connect programme, running from the same site (as the Future's Programme) and one of [the appellant's] colleagues was to be moved part of the time to teach them. [The appellant] was severely upset by this outcome on [4 April 2024] and sought an immediate meeting. He met with the Assistant Principal, who then involved the Principal. He felt very uncomfortable immediately. He claimed to have been given no option to have a union representative with him, but the Principal's account differs on this. He was encouraged to consider whether staying in the Futures Programme was right for him, and he could return to the Rosny College (main campus) instead."

13   Dr Schneider's report continued:

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"[The appellant] has had a very severe reaction to all these events, apparently out of proportion to their immediate seriousness. He stopped work after the meeting, which took place on [4 April 2024]. There was a clash between his view of staff and student safety and the bureaucratic interpretation of what grounds could be used to remove students. While the Principal's statement conveys that senior management were more involved and concerned in handling the violence and the aftermath than [the appellant's] account suggested, nonetheless it also conveys a sense that the Principal had not developed any relationship with [the appellant] and was also inclined to blame him for poor de-escalation skills. His current diagnosis is of an adjustment disorder with mixed anxiety and depression mood. However, he presents in some ways more like a person with PTSD and I am cautious about his prognosis."

14           Following receipt of Dr Schneider's report, the respondent informed the appellant that it was challenging its liability to pay him weekly payments of compensation based on various provisions of s 25(1A) of the Act. The matter was then referred by the respondent's agent to the Tribunal.

15           The Tribunal heard the matter on 21 August 2024 and published its reasons on 3 September 2024. The Tribunal considered the relevant provisions in the Act for which the application by the respondent to terminate the appellant's receipt of weekly payments from it were s 25(1A)(c) and (d) of the Act.

16           In response to the appellant's version of the relevant facts, the school Principal provided a statement in which he stated that measures implemented for the re-entry of certain students were put in place, together with risk and mitigation strategies, to ensure staff and student safety.

17           It can be seen from the evidence before the Tribunal, that the admission and rejection to programmes or activities in which the appellant was involved, of difficult and sometimes violent students, was not a matter of mere administration to him, but a matter that went to the core of the duty of the respondent to provide him with a safe work place.

The decision of the Tribunal

18           The Tribunal held that a reasonably arguable case existed concerning the liability of the respondent to pay compensation to the appellant. The effect of the Tribunal's decision is that it accepted the submissions of the respondent that the injury which the appellant suffered on 4 April 2024, arose substantially from reasonable administrative action taken by the respondent in a reasonable manner in connection with the appellant's employment, within the provisions of s 25(1A)(c) of the Act. However, as will be apparent from the discussion below, the Tribunal failed to consider whether the administrative action was reasonable or reasonably taken. The relevant administrative action for the purpose of the proceeding before the Tribunal and the appeal, was agreed by counsel to constitute the following: the re-admittance of two problematic students to the school, the failure of the school to expel them, and safety implications regarding the re-admission. The administrative action was the decision to re-admit the students to the school, in the premises of the Futures Programme. The failure to expel them was a corollary of the re-admission, and the so-called safety aspects attending the re-admission were unstated. The only relevance of that aspect of the decision is that it appears to be accepted by counsel that there were safety implications in the re-admission of the students that the school was required to consider. At [26] of its decision the Tribunal understood that the administrative action concerned the exclusion (or, in effect, the failure to exclude) and return of the students and respective security measures (without identifying them) as part of the administrative action. It is a matter of common sense and stark reality that the key decision that concerned the health and well-being of the appellant, resulting in him leaving his workplace on 4 April, was the decision to re-admit the students. That was the administrative action for the purposes of this case. Failure to expel the relevant students was the other side of the same coin, and security was an issue that appears to have been in the minds of all concerned, without the school stating how it could be ensured.

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19          The Tribunal described the appellant's injury at [3] of its reasons as "a psychological injury due to accumulation of violent student behaviour and safety concerns."

20           It is important, in this context, to bear in mind that Dr Schneider diagnosed the appellant as having "an adjustment disorder with mixed anxiety and depressed mood" and that the appellant "presents in some ways more like a person with PTSD".

21           In making that diagnosis, Dr Schneider had regard to the accumulated effect of a series of events which had occurred in the appellant's work place, which involved violent student behaviour. Importantly, Dr Schneider observed, as referred to above, that the appellant "has had a very severe reaction to all of these events, apparently out of proportion to their immediate seriousness". In other words, his reaction to the last event in early April 2024, may be seen, in colloquial terms, as "the straw that broke the camel's back". Dr Schneider went on to refer to a concern by the appellant that senior management at the school blamed him for the latest event, allegedly due to his poor "de-escalation skills".

22          At question 13 of the specific questions raised by Dr Schneider, she deals with what the appellant considered to be the cause of his latest injury. There, Dr Schneider says:

"[The appellant] reported the various violent behaviours of students, which led to him feeling unsafe, but also the decisions by seniors not to suspend some of the students from his programme, and to not provide additional security, as the causes. When asked the balance between these causes, he thought it was 'more than bad decision making', which resulted in him feeling physically unsafe in the Futures building if angry students or family chose to come in and threaten staff."

23           At question 14, Dr Schneider said that she believed that the causes of the injury were student behaviour and management decisions, as well as the appellant "worrying about the safety of other students and staff for whom he felt a sense of responsibility".

24           At question 15, Dr Schneider said that the immediate cause of the appellant's incapacity was the decisions made by senior staff in relation to two students of the Futures Programme. Dr Schneider said that:

"this appears to be the immediate cause of his incapacity but in the background of his
experiences in 2012 and 2022 to 2024 of student violent behaviour."

25   At question 16, Dr Schneider said:

"I think the most significant factor was management decisions which allowed various of the girls who had perpetrated violence to come back to the Futures' campus, whether to Futures or to the Re-connect programmes, and also decisions against implementing additional security measures for the building. I note that the decisions affected him because they increased his feeling of not being physically safe at the campus and not being able to show the other students that a ban on violence was serious."

26           The Principal made a statement, which was before the Tribunal. He said that in response to the appellant's concerns about the re-admission of some students to a programme in the Futures' building:

"It was communicated to the appellant that all reasonable steps had been taken concerning the incident involving Futures' students, in line with our department policies and documentation."

No further specificity was given.

He noted that the school was not permitted to suspend students for incidents which occurred outside of the school. He said further, that risk management strategies to protect staff and students were in place.

5 No 5/2024

The Principal considered that the appellant's concerns were addressed. He did not say what the strategies were, or how the appellant's concerns were addressed.

27           The Principal considered that "all reasonable steps" had been taken. He made no reference to the particular parts of the departmental policies that he relied upon, or the details of any risk management system that had been put in place to protect staff and students. There was no evidence that any of these amelioration measures were discussed with the appellant on 4 April 2024, before he departed the school due to stress. These amelioration measures were later briefly mentioned in an email provided to a departmental official by the Principal on 29 July 2024.

28           There was no evidence before the Tribunal to suggest the appellant's concern for his safety, and his need to show students at the school that the school was genuinely concerned for their safety, was not real. That concern must be viewed against the context of the appellant being previously subjected to student related violence.

29           The Tribunal, in approaching the meaning of "administrative action" referred to the interpretation of South Australian legislation similar to that currently under discussion. The Tribunal quoted from a judgment of Wood J in Burrage v Rural Press Limited [2013] TASSC 43, who, in turn, relied on the judgment of Doyle CJ in Work Cover Corporation of South Australia v Summers (1995) 65 SASR 233. Her Honour observed at [23] that Doyle CJ had considered whether administrative action would "include a course of conduct or general instruction by an employer or a general approach by an employer to a particular job or a particular situation." Her Honour noted that Doyle CJ had stated that administrative action was not limited to a particular episode or an event. At [25] Wood J referred to the decision of Doyle CJ at 248 in Summers, where his Honour said:

"The expression 'administrative action' is probably intended to apply to the decisions or actions by the employer which are some way related to the workings or functioning of the workplace, rather than to the actual task performed by the worker. I recognise, of course, the relationship between the two things."

30   At [47] in Burrage, Wood J said that:

"Allowing that at the final hearing the approach in Summers to the meaning of 'administrative action' may be adopted, it is reasonably arguable on the material before the Commissioner, that the conduct of the employer relating to the introduction and implementation of the new computer system, including lack of training or inadequate training, qualifies as 'administrative action' in connection with the worker's employment….there is no issue in these proceedings that it is reasonably arguable, depending on he view to be taken of facts in dispute, that the manner of the introduction and implementation of a new computer system may be regarded as both reasonable and taken in a reasonable manner."

31           In contrast, in the current circumstances, there was no evidence before the Tribunal that the re- admission of the relevant two students into a programme conducted within the Futures Programme building, being students who had previously been involved in violence against other students in the Futures Programme, was reasonable administrative action taken in a reasonable manner. The decision to re-admit students to a certain programme at the school is plainly administrative action. However, s 25(1A) of the Act, requires that administrative action is reasonable and that it be taken in a reasonable manner.

32   At [26] of its decision, the Tribunal said:

"Applying the approach of Doyle CJ, it is arguable that administrative decisions in respect to the exclusion and return of the students and the respective security measures, are decisions or actions that relate to the workings or functionings of the workplace rather than an actual task performed by the worker and so may be administrative actions in connection with the worker's employment."

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33           At [27] of its decision, the Tribunal considered that the application of s 25(1A)(c) or (d) of the Act, may result in the appellant's claim being rejected at final hearing. Therefore, the Tribunal concluded that a reasonably arguable case concerning the respondent's liability to pay compensation, existed. That is despite failing to analyse whether the administrative action was reasonable or taken in a reasonable manner.

Consideration

34           Whether s 25(1A)(c) of the Act applies to justify the cessation of weekly payments of compensation, depends not only whether there was administrative action, but also whether the administrative action was reasonable and taken in a reasonable manner. Section 25(1A)(d), regarding the failure of certain action to be taken of a type referred to in (c), does not bear upon the present discussion.

35           It is first important to identify the action taken by the respondent, being administrative action from which the appellant's injury substantially arose. The relevant decision was a decision by the school to admit two female students with "a penchant for violence" to a programme called "Re-connect" which was conducted in the building in which the Futures Programme was also conducted. Two weeks earlier, other female students in the same group as those students, were abusive to male students in the Futures Programme and were involved in perpetrating violence on them. One of the boys involved in the fracas told the appellant that a group of male students had been assaulted by those girls, outside of class. The boys provided video evidence to the appellant in support of their claims.

36           A few days before the appellant left the school due to stress, either the girls connected with, or the actual girls who were re-admitted to the school, were heard, by the appellant, yelling outside the office of a fellow employee. The day the appellant left the school, that is 4 April 2024, he was informed beforehand that the two troublesome female students would be returning to attend school in the Futures building, in the Re-connect programme.

37           The appellant was informed by a colleague that she was so concerned about the re-admission of those students that she did not want to be involved in the Futures Programme any longer due to the nature of those girls and their propensity for violence.

38           The appellant spoke to the Assistant Principal responsible for the Futures Programme who told him it was too great a risk to have the girls re-admitted to the main Rosny campus of the school, so instead they were admitted to a programme within the building in which the Futures Programme was conducted. The appellant was concerned that if the students were too great a risk to be located at the main Rosny campus, that the same risk would exist at the campus at which he was employed.

39           The Assistant Principal left after her conversation with the appellant and shortly after returned with the Principal, who claimed to be there as a witness for the Assistant Principal. The appellant was refused a request to have a union representative there as his witness. He said that he expressed as best that he could why the decision to admit the students to a programme in the building where the Futures Programme was conducted "would have ramifications for the Futures Programme".

40           The Principal, in a statement which was before the Tribunal, said that the appellant was informed that all reasonable steps had been taken concerning the incident involving the Futures students fighting outside of the school premises, in line with Department policies and documentation, without any greater detail.

41           From the above facts it may be discerned that the relevant decision made by the respondent was of an administrative nature. It may be described as one to re-admit and fail to exclude two students with violent tendencies, or being friends with or part of a group of other students with violent tendencies, to

7 No 5/2024

a programme within the building where the Futures Programme was being conducted. That was in the context of those students being involved with or associated with other students who inflicted violence on those other students, and who were in the Futures Programme. Further, that such a decision was made in circumstances where it was considered "unsafe" to relocate the students in question to the Rosny campus, according to the Assistant Principal. That was the decision, albeit affected by what the Principal considered to be safety mitigation measures. However, there is no evidence that those mitigation measures were addressed with the appellant on 4 April 2024.

42           Although the Tribunal characterised the decision at [26] of its reasons as one in respect of the exclusion of and return of students, as well as regarding security measures, the appellant was only informed at the 4 April 2024 meeting concerning a decision about the topics of failure to exclude and return. He was not informed about security measures in the meeting with the Assistant Principal or the subsequent meeting with the Assistant Principal and Principal, or the details of any security measures as at that date when he left his employment due to stress. The decision that led to the injury he incurred was the decision to admit the two students in circumstances where it was said to be unsafe to admit those students to the main Rosny campus. It was left unexplained how the students could be safely admitted to the Annex campus and not safely admitted to the Rosny campus. Having identified what the respondent's administrative decision was, that substantially led to the appellant's injury, it is now necessary to consider whether there was an arguable case that the administrative decision to re-admit the students was reasonable in the circumstances and whether it was taken reasonably.

43           In the context of the two students being involved in a group which was engaged in a recent violent altercation with other students, who were studying at the Futures Programme, and in the context of a colleague of the appellant advising him that she did not feel safe with those students being re- admitted to the school in the same building in which the Futures Programme was being conducted, and given the knowledge of the school administration about previous difficulties experienced by the appellant regarding violent students, it is extremely difficult to see how the decision to admit the two students with the propensity to violence, in a programme conducted in the Futures building, was reasonable administrative action.

44           Even if the decision was capable as being regarded as a reasonable one, there is no evidence to show that it was taken in a reasonable manner. On the contrary, there is evidence to show that the decision was not taken in a reasonable manner, as discussed above. That is especially so in the context of the lack of prior consultation with teachers most affected by it, especially the appellant, given his previous experiences with violent students. There is also the issue of the appellant being denied assistance from his union when he requested it in the meeting held with the Assistant Principal, where the Principal attended as the witness of the Assistant Principal.

45           Whether or not an employer has a reasonably arguable case not to pay compensation to a worker, depends on an objective assessment of the evidence before the Tribunal; see Vos Construction and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38 at [5] per Pearce J. There, his Honour said that:

"The Act does not require that an employer's case about liability be strong or compelling, that the case the claim may ultimately be rejected must be reasonably arguable."

Earlier in the same paragraph, his Honour noted that the employer bears the onus of establishing a reasonably arguable case. On the facts of this case, the employer has not discharged that onus.

46           An objective assessment of evidence before the Tribunal from the above facts, shows that the administrative action taken by the respondent was not reasonable in the circumstances, or taken in a reasonable manner and that there is no reasonably arguable case to the contrary. The decision was presented a fait accompli to the appellant, whose health and safety in the workplace was obviously going

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to be impacted by it, given his previous experiences in relation to which the respondent should have had
knowledge.

47           The facts of this case must be examined, not just in the context of s 25(1A)(c), but in the context of s 81A of the Act. Under s 81A(1)(c) of the Act, if a reasonably arguable case exists concerning the liability of the employer to pay weekly payments of compensation to a worker, those payments need not be made. That provision justifies an order that weekly payments of compensation cease if there exists a reasonably arguable case that the employer is not liable to pay compensation to the worker for an injury, such as where s 25(1A)(c) applies.

48   As Evans J said in St Helens Oysters v Coatsworth [2007] TASSC 90 at [10]:

"A reasonably arguable case will exists concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected."

49           It is not reasonably arguable that the claim of the appellant, on the facts before the Tribunal, will be rejected following a contested hearing. That is because the administrative action taken to re- admit the relevant students to the school, in the location in which they were re-admitted, was not, in context, a reasonable one for the reasons explained above. Any contention to the contrary, on the facts before the Tribunal, was not reasonably arguable.

50           If the Court is in error as to whether the decision was a reasonable one, it is of the view that there is little doubt that it was not taken in a reasonable manner, given the lack of consultation with the appellant prior to the making of the decision, in circumstances where the appellant's well-being and safety and entitlement to a safe system of work, was impacted by the decision. The respondent was alive to the fact that the appellant had previously experienced difficulties involving violent students and it was, no doubt, likely that he and his employment would be impacted by the decision to admit these students, as would his standing with other students of the Futures Programme, whose safety he was also concerned to ensure. Any contention to the contrary, on the facts before the Tribunal, was not reasonably arguable.

The appeal grounds

51           The Court upholds the first ground of the appeal. That ground is that the Tribunal erred in law by determining that it was reasonably arguable that the appellant's illness arose substantially from reasonable administrative action taken in a reasonable manner by an employer in connection with the worker's employment. However, the reasons advanced by counsel for the appellant, in which the Court was invited to accept that submission, differ from those contained in this judgment. The appellant contends that the action was not administrative action. The Court rejects the submission. Action concerning which students to admit or not to admit in a particular campus or programme is, in the Court's view, starkly administrative action. It is also administrative action which is taken "in connection with a worker's employment", as it self-evidently affected the appellant's employment, so much that he could no longer remain present at work due to the effect of it on his mental health.

52           The words "in connection with" have a broad import. See R v Isaac; ex parte Transport Workers Union (1985) 159 CLR 323 at 335 per Gibbs CJ, where the words "in connection with", where appearing in the conditions of eligibility for membership rule of a registered organisation, were said to "very considerably widen the scope of the rule". The decision to re-admit the relevant students to the school at the location they were admitted was administrative action taken in connection with the appellant's employment because the appellant was to face the consequences of their re-admission, given the history of their conduct and his previous exposure to student violence. However, the Court is of the view that the appellant succeeds on the point raised by ground one because on the facts before the

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Tribunal, it was not reasonably arguable that the administrative action was either reasonable or taken in a reasonable manner. The Tribunal failed to address both of those questions, appearing to assume that they were satisfied without saying so, or why, when plainly they were not addressed by reference to the evidence before the Tribunal, or at all.

53           The second ground of appeal takes issue with the reasonableness of the Tribunal's findings, having regard to the principle set out in St Helens Oysters Pty Ltd, referred to at [48] above. It is not necessary to deal with this ground, save to say that after considering the evidence before the Tribunal, the Court is of the view that the Tribunal erred in failing to consider whether the administrative action which it had found to be taken in connection with the appellant's employment, was either reasonable, or, if reasonable, whether it was taken in a reasonable manner.

54           At [26] of its decision the Tribunal only considered whether "the decisions" it referred to were administrative because they did not relate to tasks performed by a worker, but the functioning of the workplace. There, the Tribunal failed to go on to consider whether in the circumstances the administrative action was reasonable, or whether, if it was reasonable, whether it was taken in a reasonable manner. The Tribunal, thereby, erred in law. It failed to consider all three elements of s 25(1A)(c) of the Act. Those elements are first, whether the action was administrative, second, whether it was reasonable, and third, whether it was taken reasonably.

55           It is apparent from the above discussion that the appeal succeeds on both grounds, although it is not necessary to develop the views of the Court in respect to ground two, given that the appellant succeeds on ground one, and ground two does not take the matter any further.

Order

56

Under s 136(1) of the Tasmanian Civil and Administrative Tribunal Act 2020, an appeal lies on a question of law to the Supreme Court against any decision of the Tribunal in its general division. Under s 138(1)(c) of the Act, the Court may set aside the decision appealed against and, if it considers fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Court considers appropriate. There is little point in remitting the matter back to the Tribunal as a consequence of these reasons for judgment. It is more appropriate to make an order setting aside the decision appealed against, as is available to the Court under the opening words of s 138(1)(c). It is also appropriate to make an order that the appeal is allowed and that the decision of the Tribunal, dated 21 August 2024, is set aside. Under s 138(2) it is appropriate for the Court to make a consequential order that the weekly payments of compensation to the appellant be reinstated forthwith. Also, any weekly payments previously withheld from the appellant must be paid to him.

57   Accordingly, the Court orders as follows:

1            The appeal is allowed.

2            The decision of the Tribunal, dated 21 August 2024, is set aside.

3            The weekly payments of compensation of the appellant are to be re-instated with immediate effect, including reimbursement for loss of weekly payments caused by their cessation.

58           Order 3 of the above orders is a natural and appropriate consequential order following on from orders numbered 1 and 2, and addresses the wrongful denial of weekly payments to the appellant, as discussed in these reasons.