O'Callaghan and Comcare (Compensation)

O'Callaghan and Comcare (Compensation) [2019] AATA 4378 (29 October 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3006
Re:Stuart O'Callaghan
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:29 October 2019
Place:Canberra

The decision under review is set aside and in place thereof the Tribunal decides that Mr O’Callaghan sustained an injury for which Comcare is liable to pay compensation from 3 August 2016.
The matter is remitted to Comcare to determine the amount of compensation that is payable, subject to claim.
The parties have not been heard as to costs. Written submissions addressing this subject may be given to the Tribunal within 14 days of the date of this decision. Should no such submissions be made, Comcare will be ordered to pay Mr O’Callaghan’s reasonable costs in these proceedings under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988, as agreed or taxed.
.....................................................................
Mr S. Webb, Member
WORKERS’ COMPENSATION – compensation claim in respect of adjustment disorder ailment – employment contribution to a significant degree – ‘disease’ – exclusionary provision – reasonable administrative action taken in a reasonable manner in respect of the employee’s employment – performance counselling – reasonable administrative action taken in respect of the employment – action not taken in a reasonable manner – ‘injury’ for which Comcare is liable – decision set aside and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988 s 4, 5A, 5B, 14, 67
Australian Federal Police Act 1979 s 37(1)
Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No3) [2013] FCA 439
Comcare v Stewart [2019] FCA 365
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drinkwater v Comcare [2018] FCAFC 62
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056
Lim v Comcare [2017] FCAFC 64
Lim v Comcare [2019] FCAFC 104
Long v Comcare [2016] FCA 737
Martin v Comcare [2015] FCAFC 169
Secondary Materials
Australian Federal Police, Better Practice Guide on Effective People Management.
Australian Federal Police, Performance Development Agreement (PDA) Procedures.
REASONS FOR DECISION
Mr S. Webb, Member
29 October 2019

Stuart O’Callaghan claimed compensation in respect of a psychological ailment that was significantly contributed to by his employment as a police officer in the Australian Federal Police (AFP). By primary determination and on reconsideration, Comcare refused the claim. Unhappy with this result, he applied for review by the Administrative Appeals Tribunal (Tribunal).
Mr O’Callaghan’s claim and the Tribunal proceedings have a narrow compass. There is no dispute between the parties that Mr O’Callaghan suffered an adjustment disorder as a result of a meeting in his employment on 2 August 2016, in which issues of unsatisfactory performance were raised against him. As will appear, the present materials clearly establish that this is correct and, absent actions taken during the meeting, Mr O’Callaghan would not have become unwell. So much is agreed between the parties.
There is a controversy, however, over the proper characterisation of the meeting or related action as ‘reasonable administrative action taken in a reasonable manner’ in respect of Mr O’Callaghan’s employment. This test is significant because it is an essential precondition to the exclusionary proviso in s 5A(1) of the Safety Rehabilitation and Compensation Act 1988 (the Act) which, if made out, blocks Mr O’Callaghan’s claim for compensation.
Before dealing with this issue, at this point, it is desirable to say something about two aspects of this case. The first is in respect of witness evidence. The second is in respect of AFP performance development procedures.
WITNESS EVIDENCE
As will appear, of those people who had direct experience of relevant events in this case, only two gave oral evidence: Mr O’Callaghan (then a Senior Constable at the Tuggeranong Police Station) and Mr Meagher (then a Senior Sergeant and Officer in Charge of the Tuggeranong Police Station). On important points, their evidence is in conflict.
In cases of this kind, it is often difficult to distinguish probable fact from plausible fiction. This is especially so where the evidence of witnesses is conflicted and contemporaneous materials do not exist or are insufficient to resolve the conflict. While, as here, issues of credit, reliability, consistency and corroboration must be carefully assessed when deciding the weight particular evidence is to be given, an equivalent assessment must be applied to contrary evidence on the particular point. It is in this way that the conflicted evidence of Mr O’Callaghan and Mr Meagher must be assessed.
Comcare argues that Mr O’Callaghan’s evidence is not reliable and should be given little weight.
In my assessment, Mr O’Callaghan was a relatively straight-forward witness even though, at times, he had difficulty remembering details and, at other times, he was imprecise and circuitous when answering questions put to him in cross-examination. To my mind, these aspects of his evidence and his conduct as a witness do not necessitate an adverse finding of the kind sought.
I accept that Mr O’Callaghan might genuinely experience difficulty recalling precise details of what occurred in 2016, especially where those circumstances are associated, in his mind at least, with psychological distress and trauma. Nevertheless, unreliability of this kind requires careful assessment of weight that can properly be given, fact by fact, especially in the presence of inconsistency. Furthermore, to the extent that Mr O’Callaghan was cautious or circuitous under cross-examination, to my mind he was not obstructive, dissembling or guileful when answering questions put to him, and his conduct as a witness was not so egregious that his evidence, generally, should be discounted or given little weight.
With the exception of Mr Meagher, other people with direct experience of relevant matters in this case were not available, or were not called, to give oral evidence.
Sergeant Nallo was Mr O’Callaghan’s direct supervisor from March 2016 and, in this role, he was directly involved in events at the heart of this case. When the proceedings came on for hearing, however, Sergeant Nallo was unwell and he was not available to give oral evidence. This situation did not change after a delay of several months, following commencement of the hearing. He provided a medical certificate which was not challenged.[1] The Tribunal accepts that Sergeant Nallo is unwell and that he is unlikely to recover sufficiently to give oral evidence in the near future. For this reason, I accept that any further delay would, in all likelihood, be futile. In these unfortunate circumstances, it is necessary to do the best with the available evidence.
[1] Exhibit 5.
The only evidence from Sergeant Nallo is a written statement he provided to Chi Chu, Mr O’Callaghan’s rehabilitation case manager, on 6 March 2017,[2] several months after the incidents on which Mr O’Callaghan’s claim turns. Aspects of the statement are controversial.
[2] Tribunal Document (T) T12B, folios 122 and 123.
There is, therefore, a question about the weight Sergeant Nallo’s statement should be given. On the one hand, Mr O’Callaghan has not been able to test controversial elements of Sergeant Nallo’s statement in the usual way, under cross-examination. On the other hand, Sergeant Nallo is a crucial, key witness with direct knowledge of contested matters in which he and Mr O’Callaghan were allegedly involved prior to 2 August 2016. Of these matters, only Sergeant Nallo and Mr O’Callaghan have direct experience, although Mr Meagher may have been informed of some related matters by Sergeant Nallo. Consequently, where Sergeant Nallo’s statement is not consistent with the properly tested evidence of Mr O’Callaghan and it is not corroborated by other evidence, by inference at least, some caution is required when determining the weight it should be given, if any.
For this reason, I do not discount Sergeant Nallo’s statement generally, but I will carefully examine the weight it should be given on controversial points.
PERFORMANCE DEVELOPMENT PROCEDURES
In his AFP employment, Mr O’Callaghan was subject to annual performance review and assessment, involving Performance Development Agreements (PDA) and procedures for managing under-performance within the AFP professional standards framework with which officers are expected to comply.
Procedures applying to PDAs are set out in the Performance Development Agreement (PDA) Procedures (the Procedures), promulgated under s 37(1) of the Australian Federal Police Act 1979 (the AFP Act).[3] It is necessary to note key elements of the Procedures. The PDA procedure is comprised of stages, which are set out in clause 8 of the Procedures –
(a)Drafting;
(b)Agreement Signed;
(c)Awaiting Feedback; and
(d)Closed.
[3] T16, folios 164-183.
Under clause 9 of the Procedures, these stages operate within an annual cycle commencing on 1 March and ending on 28/29 February –
The PDA cycle, including timelines, responsibilities and reporting, are outlined as follows:
March 01
A compliance report for the previous PDA cycle (March to February) is generated by People Strategies.
March 01-15
Team Member is to have new “Drafting Agreement” PDA for the March-February cycle at “Agreement Signed” stage within this 2 week period (unless 21.1 applies)[4].
September 01
Mid-cycle PDA compliance report generated by People Strategies.
February 01-28/29
Members are now able to commence a new PDA for this cycle All PDAs for the (Mar – Feb) cycle are to be finalised and at the “Closed” stage within this 4 week period. Principal Team Leaders are to:
-    Ensure all team members complete PDAs to the “Awaiting Feedback” stage
-    Discuss assigned Team Member’s performance with the Team Member for the PDA cycle
-    Complete the Feedback Exchange section of the PDA
-    Close the PDA
Once the PDA has been closed, the Team Member has 5 calendar days to add comments (if any) in response to those entered by the Principal Team Member.
[4] This relates to incremental progression, which is not presently relevant.
The annual PDA cycle includes bi-annual compliance reports. These are generated on 1 March and 1 September for use by “Portfolio/State Managers to ensure PDA compliance of all staff under their respective responsibility”.[5]
[5] The Procedures, clause 10.
The roles and responsibilities of Team Members, Principal Team Leaders and others are set out in clause 13 of the Procedures. I note that Principal Team Leader responsibilities include –
-    Ensure that continuous and ongoing regular feedback sessions are conducted (minimum of four in a twelve month period) and recorded in the additional comments section of the PDA
-    …
-    Ensure that structured and regular feedback is provided for all appointees regarding the achievement of performance against agreed outcomes
-    Ensure that all appointees receive regular feedback and performance recognition
-    Ensure all formal performance management processes conducted with each appointee are documented
-    Actively address performance concerns as they arise, making notes of informal discussions
-    …
Under-performance is an Exception Outcome that is to be “validated” by the appointee’s Management Team.[6] Where a remedial PDA is in place, incremental progression or salary increase will be delayed until such time as the remedial objective is complied with and the PDA is fulfilled.[7] Furthermore, the informal and formal management of under-performance is subject to the HR Policy on Effective People Management.[8]
[6] The Procedures, clause 15.
[7] The Procedures, clause 21.3.
[8] The Procedures, clause 16.
The Better Practice Guide on Effective People Management (the Guide) is a functional governance instrument and part of the AFP professional standards framework.[9] In some detail, the Guide sets out steps for managing under-performance –
[9] T16, folios 155 -163.
Step 1 – Identify the problem
It is important to understand key drivers of performance in the workplace. It is also important to correctly and specifically identify the problem.
Step 2 – Assess and analyse the problem
The supervisor should determine:
-    how serious the problem is,
-    how long the problem has existed, and
-    how wide the gap is between what is expected and what is being delivered.
Once the problem has been identified and assessed, the supervisor should organise a meeting to discuss. The employee should be encouraged to bring a support person of their choice to the meeting.
Step 3 – Meet with the employee to discuss the problem
The meeting structure can vary from very informal to a highly formal procedure dependent upon the severity of the problem or behaviour. The supervisor should begin the meeting by holding a discussion with the employee to explain the problem in specific terms. From this conversation the employee should be able to clearly understand:
-    what the problem is,
-    why it is a problem,
-    how it impacts upon the workplace,
-    potential implications, and
-    the intended outcomes of the meeting.
The meeting should be an open discussion and the employee should have an opportunity to have their point of view heard and duly considered. The supervisor should listen to the explanation of why the problem has occurred or to any other comments the employee makes. It is important that the meeting takes place in private and in an environment that is comfortable and non-threatening, away from distractions and interruptions.
…
Informal discussion between supervisor and employee
The first response to any potential case of underperformance can be an informal conversation between the supervisor and the employee. This conversation should aim to raise, address and resolve the issue informally in the workplace.
Informal counselling
An informal approach relies on impromptu meetings and discussion, consultation, coaching and feedback. An informal approach should include:
-    informing the employee that you will be having a meeting to discuss performance,
-    having a discussion with the employee about their role and applicable work level standards,
-    showing examples of where the supervisor considers the standards have not been met,
-    allowing the employee to respond to the issues raised,
-    discussing action to help the employee improve their work performance,
-    agreeing on what actions will be taken and how they will be assessed,
-    setting a timeframe for improving performance and providing feedback over this period,
-    ending the period with a final discussion, determining with the employee whether further monitoring is needed,
-    supervisors should make ‘diary entries’ regarding any informal counselling session.
Informal counselling is not to be entered in a PDA, as a formal counselling issue. Up to two informal counselling sessions are recommended before formal counselling is used.
Formal counselling
Formal counselling generally takes place when there have been a [sic] serious performance issues and/or no improvement from informal counselling and feedback.
This stage involves the introduction of a remedial objective and a documented action plan. The supervisor and employee generate a n agreed plan of action and articulate what is required of both parties to work towards resolving the performance issues. A timeframe is established to achieve the agreed goals set in the remedial objective and to review the success of the strategy.
Formal counselling can be commenced at any stage of the PDA cycle…
…
Step 4 – Monitor performance
The supervisor should monitor the employee’s performance and continue to provide regular feedback and encouragement. Regular meetings to review and discuss the employee’s performance should be held. ... Outcomes of all meetings should be documented by the supervisor.
More serious action may need to be taken if the employee’s performance does not improve including further counselling, issuing a formal warnings [sic] and ultimately if the issue cannot be resolved, termination of the employment. …
Termination of employment
…
The process for considering on-going employment suitability begins with the delegate being provided with evidence of the performance issues and what steps have been taken to resolve the problem. This may include PDAs, action plans, remedial objectives, diary notes, informal and formal counselling notes and a detailed chronology of events. …[10]
[10] The Guide, page 5 – 7.
As can be seen, the four-step process for managing under-performance allows for some flexibility. Nevertheless, the basic procedural tenets underlying the process, including the requirements for specificity, procedural fairness and appropriate documentary evidence, are very clear.
FACTS
Mr O’Callaghan was first employed by the AFP in 2007. He underwent training and became a sworn police officer. He performed general duties as a Constable.
In the period from 2008 to 2011, issues were raised in respect of Mr O’Callaghan’s performance. He was counselled and performance issues, including remedial objectives, were noted in his PDAs. These related to decision-making, organisation, timeliness and written work.[11]
[11] See for example Exhibit 1, pages 11, 13, 16, and 24.
In or about 2010, Mr O’Callaghan was transferred to general duties at the Canberra Airport and subsequently he undertook duties with the Crime Prevention Team. His PDAs from September 2010 to August 2012 do not record any under-performance.
In 2012, Mr O’Callaghan resigned from the AFP and took up employment with ACTION, the public transport service of the Australian Capital Territory. He maintains this was for personal and family reasons.
In or about March 2014, he returned to AFP employment and was assigned to the Tuggeranong Police Station.
In the period from March 2014 to February 2016, Mr O’Callaghan’s PDAs do not expressly record under-performance. This notwithstanding, it is quite clear that Mr O’Callaghan underwent a period of “re-skilling” on resumption of general police duties.[12] In 2015, he was promoted from Constable to Senior Constable. The PDA covering March to August 2015 records that –
Senior Constable O’Callaghan continues to make steady progress in relation to statements and client interaction and with his recent presentation of senior constable status, he will be expected to take an even more leading role within the team and mentoring newer members.[13]
[12] Exhibit 1, page 40; Exhibit 2.
[13] Exhibit 1, page 47; Exhibit 2.
On or about 8 September 2015, while conducting a search for a missing person, Mr O’Callaghan twice collided with stationery objects, causing minor damage to the AFP vehicle he was driving. Following standard procedure, these incidents were reviewed by the Driving Incident Review Committee (DIRC).[14]
[14] T12B, folio 124.
In or about October 2015, Mr Meagher (now retired) commenced as Station Sergeant, Officer in Charge, at the Tuggeranong Police Station. In this role he was superior to Mr O’Callaghan’s then immediate supervisors, initially Sergeant Rollings and subsequently Acting Sergeant Fitzroy followed by Sergeant Nallo.
Mr Meagher gave evidence that he transferred Mr O’Callaghan to a team supervised by Sergeant Nallo for reasons of under-performance. As can be seen from Mr O’Callaghan’s PDA ending in February 2016, the September 2015 driving incident is referred to but, otherwise, no issue of under-performance is recorded. This notwithstanding, Mr Meagher asserts that he discussed under-performance and the reasons for the transfer with Mr O’Callaghan in a meeting on 11 January 2016. In a contemporaneous note Mr Meagher recorded –
Conversation with Stuart O’Callaghan and his acting Sgt Darren Fitzroy re his moving to Team 3 on the 17^th of February.
Stuart is happy to go and agrees he learns differently (as suggested) by me and I want him to look at being confident and competent enough by the end of the year to be considered for acting duties.
He is happy with the move and agrees he could use a little polish to assist with his confidence and write offs/paperwork.[15]
[15] T12B, folio 126.

Mr Meagher’s evidence is that Mr O’Callaghan “learns differently” and the phrase “he could use a little polish” refers to Mr O’Callaghan’s under-performance. It can be accepted that Mr Meagher discussed performance development issues relating to write offs/paperwork with Mr O’Callaghan, but it appears he did so using language that does not expressly or clearly convey under-performance, and may lead to confusion. This is especially so if, as Mr Meagher noted, the alleged under-performance was presented in reference to the potential for “acting duties”, which Mr Meagher explained were higher duties, acting in the role of a sergeant. There is no evidence from Sergeant Fitzroy or Sergeant Rollings addressing this point.
If Mr Meagher did attempt to raise under-performance concerns as he alleges, these were not clearly communicated to Mr O’Callaghan and they are not reflected in the terms of his February 2016 PDA. To my mind, there is a very clear distinction to be drawn between a superior officer discussing performance which requires ‘a little polish’ with a subordinate in order to obtain ‘acting duties’, and raising an issue of under-performance, being performance which does not meet the required minimum standard that may lead to performance management action being taken.
Mr O’Callaghan’s evidence is that Mr Meagher did not raise any issue of under-performance in the 11 January 2016 meeting. Whether or not that is correct, in consideration of the imprecise language Mr Meagher used, I accept Mr O’Callaghan did not comprehend that an issue of under-performance was raised or specified by Mr Meagher, and he did not understand that the transfer was any kind of remedial action.
On Mr Meagher’s evidence, he met with Mr O’Callaghan on 12 January 2016 to discuss the motor vehicle collisions that occurred on or about 8 September 2015. In all likelihood this followed a discussion between Mr Meagher and Sergeant Dave Williams that day, of which Mr Meagher noted –
12.45 Spoke to Sgt Dave Williams re S/Const O’Callaghan’s prang – advice re any witnesses to [illegible] accident →yes: on job[16]
[16] T12B, folio 126.
Mr Meagher’s evidence is that –
(a)he informed Mr O’Callaghan “I would be issuing him with a Traffic Infringement Notice (T.I.N.) in the form of a caution for his driving manner which caused him to have two collisions in a police vehicle in one day”;[17]
(b)Mr O’Callaghan was not happy about this and discussed the matter again with Mr Meagher on 13 January 2016; and
(c)in this discussion, as a “learning exercise”, Mr Meagher conducted a basic “investigative question and answer interview” with Mr O’Callaghan, linked to proofs of the offence of negligent driving.[18]
[17] T12B, folio 112.
[18] Ibid.
On 1 February 2016, Mr Meagher noted –
14.35 Dave Williams re Promis 5853458 recommendation for a TIN to be issued for a collision Stuart O’Callaghan[19]
[19] T12B, folio 124.
Later that day, at 3.59pm, Sergeant Fitzroy (then Mr O’Callaghan’s direct supervisor) made the following entry to his PDA –
Constable O’Callaghan was issues [sic] with a traffic caution by the S/Sgt Meagher this date in relation to a minor vehicle collision involving an AFP vehicle.
In the coming future Constable O’Callaghan will take part in a refresher driving course.[20]
[20] Exhibit 2, PDA September 2015-February 2016, page 1.
I note there are some difficulties interpreting Mr Meagher’s contemporaneous notes insofar as these related to Mr O’Callaghan’s performance. It appears that Mr Meagher decided to issue Mr O’Callaghan a Traffic Infringement Notice as a “punitive action”[21] before being advised of the DIRC recommendation on 1 February 2016. Whether or not this is correct, it was recorded in his PDA report for the cycle ending on 29 February 2016 without adverse finding - the PDA result for this period is recorded as “PDA Fulfilled”, with the result being agreed by Mr O’Callaghan and Principal Team Leader Sergeant Rollings, who closed the PDA for that cycle.[22] The PDA includes the following Team Leader comments –
Senior Constable O’Callaghan continues to make progress in his development as a law enforcement officer. During the review period he attained the rank of Senior Constable, and as such is considered as a senior member within a patrol team, a point he recognises and is working towards increasing his knowledge base to succeed in this new role.
Senior Constable O’Callaghan has now been transferred to another team within Tuggeranong Patrol and will need to adjust to the demands of more junior members assisting guidance, this will be a positive move for the member and with considered, balanced judgement, he should be able to do well with the new challenges.[23]
[21] T12B, folio 112.
[22] Exhibit 1, page 49; Exhibit 2, PDA September 2015-February 2016, page 3.
[23] Exhibit 2, PDA September 2015-February 2016, page 3.
These remarks are not consistent with Mr Meagher’s evidence of Mr O’Callaghan’s alleged under-performance in January 2016.
On or about 17 February 2016, Mr O’Callaghan took up duties with Team 3 under the direct supervision of Sergeant Nallo.
A new PDA for Mr O’Callaghan was agreed with Sergeant Nallo, who signed it on 25 March 2016 (the 2016 PDA). This included Critical Objectives and Measures that applied from 1 March 2016.[24] I note that the Measures include the following –
…
Prompt response to matters referred by dispatch, management and the public.
Accurately record matters through maintaining quality/timely entry of PROMIS data and submission of quality/timely brief of evidence.
…
Prepare/present written and oral evidence and briefings to AFP management, Courts and DPP etc on the conduct and outcome of investigations.
…
Coach guide and mentor other team members as required.
…[25]
[24] Exhibit 2, PDA March 2016-February 2017, pages 1 and 2 (marked 7 and 8).
[25] Ibid.
There is a dispute about the extent to which issues of under-performance were raised and discussed with Mr O’Callaghan by Sergeant Nallo in the period from March 2016 to 2 August 2016. Mr O’Callaghan strongly asserts that under-performance was first raised with him by Mr Meagher on 2 August 2016 and, hitherto, Sergeant Nallo did not expressly raise under-performance. As can be seen from the Procedures and the Guide, these are matters of fact and degree.
It is necessary to carefully examine Sergeant Nallo’s 6 March 2017 statement.[26] Sergeant Nallo states –
[26] T12B, folios 122 and 123.
When S/C O’Callaghan commenced on the team he had jobs which required immediate attention, To date (6/3/17) ten incidents remain in stages of incomplete investigation, some of which date back to December 2015.
Upon vetting these incidents basic governance and procedures have not been followed, “chasers” have been sent tasking S/C O’Callaghan to complete the cases. Specific examples of informal remedial action is described below.
27 March 2016, Informal remedial action relating to his handling of cases specifically; following procedures and completing incidents on PROMIS cases, his presence and responsibilities given his rank of Senior Constable, the amount of time he spends talking to and distracting other members (this specifically relates to complaints received from the team about distraction), and I clearly set out my expectation as a team leader for a Senior Constable.
4 April 2016, S/C O’Callaghan attempted to resolve a matter by fresh charging the defendant, who already had two first instance warrants in existence. S/C O’Callaghan hadn’t compiled the whole brief at that point. This brief was never submitted and the Defendant was located and arrested by other members at which point he was fresh charged. The final hearing brief was submitted and vetted on the 10 June 2016 and as labelled by the adjudication Operation Support Sergeant as having. (1) Several flaws of serious concerns (2) held grave concerns over the amount of irrelevant, hearsay and bad character evidence that the informant ((S/C O’Callaghan)) has put in his statement.
The feedback received related to basic procedural errors, he hadn’t utilised templates which are available on the intrweb, he hadn’t followed the statement guide, the brief was missing documents.
From this incident I had an informal meeting with S/C O’Callaghan, the result of this meeting he agreed to keep a “Investigation Diary” which he would use to record all outstanding issues with a case, he was expected to meet with me and together we would come up with an investigation plan which he would record, this would, in time, be a reference manual for him.
23 May 2016, S/C O’Callaghan informed me his “dream” job was advertised at the Australian War Memorial. He applied for the position and listed me as a referee.
7 June 2016, Feedback to S/C O’Callaghan regarding the amount of PROMIS jobs requiring attention, at that point in time he held 18% of the teams’ cases out of ten members, the second highest amount of the team. There were issued identified with case write offs the amount of time taken to conduct investigation and in action on his behalf.
25 July 2016, an incident which dated back to October 2015 had progressed to the preparation of a summons for the Defendant/s to appear in court; the briefs of evidence were not supported by the Operation Support Sergeant at Tuggeranong (see attachment A, Minute by Sergeant Wayne Evans, Operation Support Sergeant, dated 12 August 2016.)
30 July 2016, Coronial Investigation, significant deficiencies including using wrong forms, not completing forms and feedback received from the ACT Policing Coroner’s Officer “falls well below the standard of someone of his years of experience.
2 August 2016, Formal counselling session – Station Sergeant Chris Meagher, Sergeant Nallo and S/C O’Callaghan in attendance. The result of this meeting was that he would be required to “buddy” with another Senior Constable, who would direct him on investigations and procedures. We would work a one week on the road attending jobs, the next off the road working in the front office to ensure that he could spend time familiarising himself with governance and procedure and have time to plan the cases he was working. He would also be required to send time studying writing guides and caselaw.
S/C O’Callaghan appeared upset by this meeting …
5 August 2016, I received a phone call from S/C O’Callaghan, he advised he wasn’t feeling well after the feedback session, he wouldn’t be in for the next block of shifts…
To assist in clearing the cases S/C O’Callaghan had left unresolved I began working through them, I discovered property items mishandled and procedures not followed, case write offs had been left mid paragraph.
…[27]
[27] T12B, folios 122 and 123.
There are a number of difficulties with this untested evidence. As can be seen, it is, in parts, vague, imprecise, lacking particularity and contextual detail, and it lacks supporting documentation.
I note Mr Meagher’s evidence that chasers would be recorded in the PROMIS system. No such records are in the materials before the Tribunal. I understand that all relevant documents were sought from the AFP and these have been given to the Tribunal. The absence of records of chasers in the PROMIS system does not support Sergeant Nallo’s evidence that chasers were sent to Mr O’Callaghan.
While it appears from Sergeant Nallo’s statement that he was concerned about the timeliness and quality of Mr O’Callaghan’s work, the matters traversed in his statement are in retrospect – the statement is dated 7 March 2017, several months after the period presently under consideration. It is not clear if Sergeant Nallo relied on contemporaneous records, such as his official diary, when preparing his statement, or if this was done from his memory. Despite Mr Meagher’s evidence that Sergeant Nallo’s official diary would be in the AFP’s holdings, no part of Sergeant Nallo’s official diary has been produced. The absence of any diary notes by Sergeant Nallo raises questions about the accuracy and reliability of the contents of his statement, which was prepared several months after the meeting on 2 August 2016.
As the sharp focus of these proceedings is on the period leading up to 2 August 2016, timing is an important issue. For example, Sergeant Nallo refers to briefs of evidence prepared by Mr O’Callaghan not being supported by the Operations Support Sergeant, Sergeant Evans, when vetted on 25 July 2016. Sergeant Evans’ adverse assessment is clearly established by contemporaneous reports.[28] On 12 August 2016, Sergeant Evans sent letters to Mr Meagher attaching the Mention Brief Adjudication sheets in respect of briefs submitted by Mr O’Callaghan.[29] It is quite clearly stated that the issues had previously been raised with Sergeant Nallo and the following day Mr O’Callaghan had advised “that he and Sgt NALLO had determine [sic] to take any further enforcement action in regards to the incident”.[30] The present evidence, including Sergeant Nallo’s statement, does not, however, establish when Sergeant Nallo became aware of this issue – no PROMIS records or diary entries relating to these matters are before the Tribunal. As Sergeant Nallo is recorded in the Brief Adjudication Feedback Sheet as Vetting Team Leader, it is possible this occurred on or about 25 July 2016. If that is correct, Sergeant Nallo does not set out in his statement if further enforcement action was required and whether he took remedial action to deal with the matter as an under-performance issue – from that absence, it may be inferred that he did not. This notwithstanding, it is probable that this matter was raised by Mr Meagher when meeting with Mr O’Callaghan and Sergeant Nallo on 2 August 2016. Sergeant Nallo’s notes of that meeting refer to “OSS issues – poor breifs [sic]”.[31] It is not clear, however, when and in what circumstances Mr Meagher became aware of the issue, although it is open to infer that he was informed by Sergeant Nallo. The letters Sergeant Evans sent to Mr Meagher on this subject are dated 12 August 2016, 10 days after the 2 August meeting.
[28] T12B, folios 131-134.
[29] T12B, folios 129 -134.
[30] Ibid, folio 129.
[31] Ibid, folio 135.
As this example amply demonstrates, there is a striking lack of documentation, especially in the form of contemporaneous diary entries and PROMIS records, detailing precise events and incidents involving Sergeant Nallo and Mr Meagher in respect of Mr O’Callaghan’s performance in the period from February 2016 to August 2016. For this reason, it is no easy task to piece together what occurred.
The examples of “informal remedial action” Sergeant Nallo sets out catalogue ‘actions’ purportedly relating to poor performance by Mr O’Callaghan prior to 2 August 2016. I accept that Sergeant Nallo discussed issues relating to Mr O’Callaghan’s handling of cases specifically; following procedures and completing incidents on PROMIS cases, among other things, at various times, including on 27 March 2016. It appears that the Informal remedial action he undertook on that day involved setting out expectations – “I clearly set out my expectations as a team leader for a Senior Constable”. It can be accepted that, at that time, Mr O’Callaghan had a number of incomplete investigations dating back to December 2015. There is no record before the Tribunal of any particular remedial action that was required of Mr O’Callaghan or measures that might be applied to gauge his progress, such as one might expect in the context of under-performance counselling under the Procedures and the Guide. The inference that may be drawn from Sergeant Nallo’s statement on this point is that he expected Mr O’Callaghan to improve the timeliness and other aspects of his work. It is not established that this was expressly put in terms of under-performance in respect of Mr O’Callaghan’s PDA.
In his statement, Sergeant Nallo does not particularise when he had an informal meeting with Mr O’Callaghan, in which it was suggested that Mr O’Callaghan would keep an Investigation Diary to record outstanding issues with a case and any related investigation plan settled by Sergeant Nallo. It is open to infer that this may have occurred in the latter part of June 2016, after feedback was received from an adjudicating Operational Support Sergeant (unnamed) following submission of a final hearing brief on 10 June 2016. Once again, there is no contemporaneous record of the feedback received or of the informal meeting to which Sergeant Nallo refers. Furthermore there is no contemporaneous record, by way of diary entries for example, of the Feedback Sergeant Nallo says he gave Mr O’Callaghan about his outstanding PROMIS jobs on 7 June 2016 or the “chasers” Sergeant Nallo says he sent Mr O’Callaghan which, on Mr Meagher’s evidence would have been recorded in the PROMIS system. Nevertheless, it can be accepted that Sergeant Nallo harboured concerns about the timeliness and, perhaps, other aspects of Mr O’Callaghan’s work at that time. Once again, the present evidence does not establish that these concerns were squarely put to Mr O’Callaghan in terms of under-performance in respect of his PDA.
Clearly enough, on Sergeant Nallo’s evidence, these events would have taken place over time. Nevertheless, the present materials do not establish that monitoring and assessment of Mr O’Callaghan’s performance, in respect of alleged under-performance in particular, was being undertaken in a progressive or structured manner during the period from February to August 2016, as one might expect where under-performance is an increasing or enduring concern. I expect that Sergeant Nallo may have been able to clarify some ambiguities arising from his statement and to shed light on relevant matters had he been well enough to have given further evidence; but he was not, so one must do the best with the materials and evidence at hand.
I accept that Sergeant Nallo raised performance issues with Mr O’Callaghan on 27 March 2016, 7 June 2016 and in the latter part of June 2016, at least. These conversations had the character of undocumented, informal discussions that were not correlated in any progressive or apparent way. On balance, the present evidence does not establish that these conversations involved express discussion of under-performance with respect to clear performance standards, reasons for not meeting the standards, measures for evaluating progress, strategies and targets for improvement, and feedback within an agreed period. Even if they did, the present evidence does not establish that performance management mechanisms of this kind were agreed upon or implemented.
I am satisfied that the informal remedial action Sergeant Nallo refers to is not consistent with ‘informal counselling’ under the Procedures or the Guide.
The Guide sets out the procedural elements an informal approach should include in the context of ‘informal counselling’ –
·informing the employee that you will be having a meeting to discuss performance,
·having a discussion with the employee about their role and applicable work level standards,
·showing examples of where the supervisor considers the standards have not been met,
·allowing the employee to respond to the issues raised,
·discussing action to help the employee improve their work performance,
·agreeing on what actions will be taken and how they will be assessed,
·setting a timeframe for improving performance and providing feedback over this period,
·ending the period with a final discussion, determining with the employee whether further monitoring is needed,
·supervisors should make ‘diary entries’ regarding any informal counselling session.[32]
[32] T16, folio 160.
Had an informal under-performance procedure of this kind been commenced or undertaken by Sergeant Nallo, one would expect Mr O’Callaghan to have been informed about it – it is difficult to conceive of an under-performance procedure where the subject is not informed. Furthermore, had a procedure of this kind been commenced, one would expect to find contemporaneous records or corroboratory evidence, such as notes of particular under-performance and any related counselling. Unfortunately, there are no contemporaneous records of this kind documenting counselling actions allegedly undertaken by Sergeant Nallo in the period from 17 February 2016 to 1 August 2016.

While Mr Meagher’s evidence lends some support to Sergeant Nallo’s statement, it does not establish, on the balance of probabilities, that Sergeant Nallo or anyone else squarely raised issues of under-performance with Mr O’Callaghan from January 2016 to the meeting on 2 August 2016. Mr Meagher states –
…
During the subsequent months [from January 2016] I monitored Senior Constable O‘Callaghan’s performance through the informal input and advice from his Team Leader, Sgt Nallo. Sgt Nallo informed that he had a number of significant issues to deal with concerning Senior Constable O’Callaghan’s work practices, including, but not limited to, failure to adhere to AFP Governance concerning his PROMIS cases, not completing jobs within a reasonable timeframe and failing to address serious flaws in his briefs of evidence as directed by the Operational Support Sergeants…
… Sgt Nallo enacted a number of strategies with Senior Constable O‘Callaghan to rectify the identified issues including the establishment of an investigation diary which could be used as a tool to sense check and validate Senior Constable O’Callaghan’s work.
Again every effort was made to support Senior Constable O’Callaghan. As late as the 26^th of July 2016 it was becoming apparent that any remedial plans put in place, informally, and within his team, were not producing the outcome I needed to see in Senior Constable O’Callaghan’s performance…
This was not an uncommon theme with Senior Constable O’Callaghan. His basic written and oratory skills were not to the level one would expect from a Senior Constable.
…[33]
[33] T12B, folio 112 and 113.
It is quite clear that Mr Meagher relied on advice from Sergeant Nallo in respect of Senior Constable O’Callaghan’s performance and related “strategies” and “remedial plans” in the period from February 2016 to 1 August 2016. His evidence about such matters is heavily reliant on alleged and undocumented interactions with Sergeant Nallo. Mr Meagher also gave evidence that he received regular reports about deficiencies with briefs Mr O’Callaghan prepared from Sergeant Pithkethly, an Operational Support Sergeant. There are no adjudication sheets, diary notes or other contemporaneous records before the Tribunal of Sergeant Pithkethly raising concerns about the quality of Mr O’Callaghan’s work.
Mr Meagher explained that he did not note or keep any record of issues Sergeant Pithkethly and Sergeant Nallo raised with him about the quality of Mr O’Callaghan’s work – he relied upon the sergeants to do this. No such contemporaneous documents or records have been placed before the Tribunal. It is perhaps for this reason, that Mr Meagher did not identify specific strategies or remedial plans put in place by Sergeant Nallo (or anyone else) to address issues identified with Mr O’Callaghan’s performance, other than those set out in Sergeant Nallo’s statement. On balance, it is not established as a probability that Sergeant Nallo, or anyone else, expressly raised ‘under-performance’ with Mr O’Callaghan in the period from January 2016 to 2 August 2016. Doing the best with the available materials, I am reasonably satisfied that the performance-related interactions between Sergeant Nallo and Mr O’Callaghan in March 2016, April 2016 and July 2016 were unstructured, apparently unrelated (in the sense of progressive assessment or feedback) and not expressly linked to performance outcomes. These interactions more closely resemble impromptu conversations and discussions about work issues than discussions dealing expressly with under-performance in the context of Mr O’Callaghan’s PDA.
Notwithstanding Mr Meagher’s expectations, the present evidence does not establish that substantive remedial plans were put in place to address issues identified with Mr O’Callaghan’s performance and, on the materials before the Tribunal, the only strategies implemented prior to 2 August 2016 were informal discussions, including the investigation diary suggestion, to which I have referred.
Mr O’Callaghan’s evidence is that Sergeant Nallo did not raise under-performance issues with him in the period from 17 February 2016 to 1 August 2016 – the first event in which under-performance was raised occurred on 2 August 2016. Nevertheless, Mr O’Callaghan accepts that Sergeant Nallo discussed the need for him to keep PROMIS records up to date and that the Sergeant suggested he keep a work book for recording outstanding case issues. Mr O’Callaghan’s evidence is that he did not keep a work book or Investigation Diary and no investigation plans were settled by Sergeant Nallo, but he complied with the request by printing out and annotating his PROMIS cases. On Mr O’Callaghan’s evidence, the requirement to keep PROMIS records up to date was an issue Sergeant Nallo raised with all team members from time to time – it was not raised with him as an under-performance issue, but as an issue of timeliness in the conduct of his duties.
At first blush, Mr O’Callaghan’s evidence on this point appears to be somewhat self-serving and inconsistent with clear evidence of under-performance. Close examination of the evidence points to a different conclusion, however. There are two primary considerations. Firstly, Mr O’Callaghan’s evidence reflects his perception of events, namely that no issue of under-performance was raised with him by anyone in the months before 2 August 2016 and, secondly, testing that perception requires detailed assessment of what occurred and whether concerns about under-performance were expressly raised with him. Details of what occurred may only be established by probative evidence, drawing well-found inferences where it is appropriate to do so, applying the reasonable satisfaction standard. On close examination of the evidence dealing with interactions between Mr O’Callaghan and his superiors from January to 2 August 2016, it is not established that under-performance was expressly raised in unambiguous terms.
With regard to Mr O’Callaghan’s perception, Sergeant Nallo’s statement and Mr Meagher’s evidence point to the possibility that concerns about Mr O’Callaghan’s under-performance were squarely raised with him in the period from January 2016 to August 2016, leaving him in no doubt about what was going on. While I accept that concerns about the timeliness and other aspects of Mr O’Callaghan’s work were raised with him during this period, the present evidence does not establish, on the balance of probabilities, that the concerns were expressed in terms of under-performance in respect of standards set out in Mr O’Callaghan’s PDA.
Mr Meagher’s evidence is that Mr O’Callaghan learns differently. Dr Saboisky and Dr White reported that Mr O’Callaghan had limited writing skills and had encountered difficulties with written language in his work. Matters of this kind had arisen as under-performance matters in Mr O’Callaghan’s PDAs early in his employment by the AFP. Notwithstanding Mr Meagher’s evidence that he harboured concerns about Mr O’Callaghan’s performance in January 2016 and Sergeant Nallo’s evidence that he took informal remedial action in and after March 2016, there is nothing by way of contemporaneous notes or records, or in Mr O’Callaghan’s PDAs from 2014 and 2015 and his initial 2016 PDA, that suggests performance issues of these kinds were then of concern.
Mr O’Callaghan is adamant that, while Sergeant Nallo raised issues of timeliness and other aspects of his work, he did not expressly raise under-performance prior to 2 August 2016. His evidence on this point is not controverted by contemporaneous materials or contradicted by Mr Meagher’s evidence or by Sergeant Nallo’s statement.
I am satisfied that Mr O’Callaghan’s evidence on this point is not so fanciful or incredible or unbelievable that it should not be accepted. In my assessment, while there are doubts about the reliability of Mr O’Callaghan’s evidence, there is a clear difference between a supervisor raising an issue about a subordinate’s work that requires attention in an ad hoc manner, such as adherence to procedure or maintenance of timely records for example, and a supervisor raising an issue of such kind in respect of under-performance, with regard to the minimum standards required under the employee’s PDA for example. The former may leave the employee in a state of ignorance or doubt about under-performance, whereas the latter leaves no room for uncertainty and may have consequences for the employee’s employment - this is not a hair-splitting matter of semantics.
Well it may be that an employee applying a sharper mind than Mr O’Callaghan brought to bear may have readily perceived or clearly recognised the implication that the issues Sergeant Nallo raised related to under-performance, but Mr O’Callaghan maintains that he did not perceive the issues Sergeant Nallo, Sergeant Pithkethly and others raised about his work in this way. I accept that Mr O’Callaghan did not comprehend that the issues Sergeant Nallo raised about his work from time to time prior to 2 August 2016 adverted or amounted to under-performance in respect of the minimum standards required by his 2016 PDA.
On 11 June 2016, a complaint was lodged with the AFP, alleging that Mr O’Callaghan failed to properly investigate an incident that occurred on 29 November 2015. It is not established when Sergeant Nallo was made aware of this, if at all – he does not refer to it in his statement. Mr Meagher’s evidence is that he was not aware of the complaint prior to 2 August 2016, but he was aware that the case had not been resolved. Ultimately, on 5 December 2016, the investigation of the complaint was concluded and an adverse finding was made against Mr O’Callaghan –
The investigating officer has found that the investigation of the incident that occurred on 29 November 2015 fell short of the standard that the AFP expects of its staff.
You will be counselled by your Superintendent (or their delegate) regarding the expected standard of investigations and the sensitivities of matters involving the LGBTI community. The counselling session will be recorded on your PDA.[34]
[34] T12B, folio 116.
Mr O’Callaghan alleges that he was bullied and harassed by his supervisors from 1 July 2016.[35] Subsequently, on 17 August 2017, he lodged a complaint against Sergeant Pithkethly (among others).[36] The complaint was investigated by AFP Professional Standards and a decision made that no further action would be taken.[37] This notwithstanding, it can be accepted that Mr O’Callaghan perceived he was being bullied and harassed at the time and raised the matter with Dr Brown. On 18 July 2016, Dr Brown noted the following –
Feels harassed at work by the operational support sergeants at Tuggeranong, one in particular – harassing him about “work delays & paperwork inadequacies” that are beyond his control. His immediate sargeant [sic] has met with superior to promote Stuart’s cause – long discussion about how to “survive” the nonsensical behaviour to which he is being subjected. Ultimately they (the bullies) are likely to ‘move on’, so will simply have to endure them until they are moved…[38]
[35] T6F, folio 52 refers.
[36] T6C, folios 41 and 42.
[37] T6B, folio 40.
[38] T6E, folio 46.
On this evidence, it is possible that Sergeant Nallo may have been aware of Mr O’Callaghan’s perceptions of harassment and bullying, and may have taken this up with Mr Meagher. Sergeant Nallo does not refer to this in his statement and it is not positively established that he did. The extent to which, if at all, Mr Meagher was alive to this issue on or before 2 August 2016 is not established.
On 1 August 2016, Sergeant Wall, AFP Coroner’s Officer, sent an email to Mr Meagher (copied to Sergeant Nallo) in respect of an investigation into a death undertaken by Mr O’Callaghan, stating –
Several issues were identified in the investigation conducted by S/C O’Callaghan which need to be addressed. Whilst some are only minor in nature, the overall cumulative impact of these issues raises concerns about the quality of the investigations being conducted and also raises concerns about his mentoring ability.
…
Whilst it is understandable that workplace requirements are placing high expectations on members, especially for nightshift, the work conducted by S/C O’Callaghan on this occasion falls well below a standard expected of someone of his years of experience. It further brings into question if he is placed in a mentoring role as to what he will be teaching junior members if he does not follow basic procedures in obtaining life extinct statements, discussing the objection to PM, or making appropriate enquiries as part of the investigation.
…[39]
[39] T12B, folio 118.
In his statement, Sergeant Nallo does not refer to receiving this email.
Mr Meagher recorded the following response –
As a result of receiving this email and a subsequent discussion with the ACT Coroner’s Officer, I decided to call a meeting with Senior Constable O’Callaghan and his Team Leader, Sgt Nallo. I had decided that I was no longer prepared to carry the risk to Senior Constable O’Callaghan and the ACT Community due to his poor work level standards. He was to be put on an underperforming Performance Development Plan (PDA) with clear actions and outcomes. This was not only in relation to this matter, (…), but was also to encompass previous issues as presented earlier…[40]
[40] T12B, folio 113.
Mr O’Callaghan maintains that he had little experience with death reports and, while on night shift, he prepared a draft report about which he needed some advice but was unable to obtain this in the middle of the night. He says he submitted the draft report, which he knew required further work, and subsequently obtained advice and submitted a revised report. He was not aware that Sergeant Wall had emailed Mr Meagher and Sergeant Nallo.
The following day, on 2 August 2016, Mr O’Callaghan undertook his rostered shift, performing his usual duties. Mr O’Callaghan’s evidence is that, on completion of his shift, he was asked by Sergeant Nallo to attend a meeting with Mr Meagher forthwith. On route to Mr Meagher’s office, Sergeant Nallo told Mr O’Callaghan that Mr Meagher wanted to discuss the death report he had prepared.
The meeting commenced at or about 5.45 pm.[41]
[41] T12B, folio 135.
Mr Meagher and Mr O’Callaghan have given extensive oral evidence and detailed statements about what occurred in the meeting.[42] Their accounts differ. Sergeant Nallo refers to the meeting in his statement but provides little detail.[43] He took brief notes of the meeting, however.[44]
[42] See Mr Meagher’s statement at T12B, folios 113-115, and Mr O’Callaghan’s statement at T7, folios 55-60.
[43] T12B, folio 123.
[44] Ibid, folio 135.
Considering this evidence, I make the following findings about the meeting –
(a)Mr O’Callaghan was surprised by the meeting;
(b)he was not given advance notice of the meeting;
(c)immediately before the meeting, he was informed that it was the discuss the death report he had prepared – he was not forewarned that the purpose of the meeting was to address under-performance in the context of his PDA;
(d)he was not given any time to prepare;
(e)he was not invited to bring a support person to the meeting;
(f)the meeting took place in Mr Meagher’s office, with Mr O’Callaghan facing Mr Meagher and Sergeant Nallo sitting in the rear;
(g)Mr Meagher deliberately left the office door open during the meeting;
(h)at least one officer, passed or approached the office during the meeting;
(i)Mr Meagher did not take any notes of the meeting – he had previously asked Sergeant Nallo to do this;
(j)at the outset of the meeting, Mr Meagher addressed his concerns about the death report Mr O’Callaghan prepared and Sergeant Wall’s related email;
(k)Mr Meagher briefly showed Mr O’Callaghan the death report, but took this back after a few moments;
(l)thereafter, Mr Meagher spoke directly to the documents in some detail, but he expressly refused to allow Mr O’Callaghan access to the documents during the meeting;
(m)then Mr Meagher informed Mr O’Callaghan of “Forward/future actions”: he was to be put on a formal under-performing PDA and “buddied with a senior member”[45] – it is quite clear that Mr Meagher had predetermined the outcome of the meeting;
[45] Ibid.
(n)next, Mr Meagher criticised the standard of Mr O’Callaghan’s work and informed him that he was not performing to a satisfactory standard for a member of his rank and experience - Sergeant Nallo’s diary notes refer to:
OSS issues – poor breifs [sic]
+ lost [illegible] off death report
Standards of work
Bigger picture stuff/duties of S/C[46]
[46] T12B, folio 135.
(o)Mr Meagher then informed Mr O’Callaghan of the terms of the under-performing PDA – this was noted by Sergeant Nallo in the following terms:
Underperforming PDA –
Drafting PDA feedback – Meagher
Working with senior member
Online course offline/after work hours
Performance in writing – items in library
One week on, one week off
3 month reviews[47]
Additionally, it is probable that Mr Meagher informed Mr O’Callaghan he would not be permitted to mentor junior officers while on the under-performance PDA;
(p)in his oral evidence, Mr Meagher described these as bullet points which could subsequently be revised and agreed, but Mr O’Callaghan’s evidence is that these were presented without discussion as points that would be adopted and he was required to follow;
(q)it is probable, in this context, that Mr Meagher informed Mr O’Callaghan of the implications if his performance did not improve to the required standard, in all likelihood this included possible adverse effects on Mr O’Callaghan’s employment;
(r)Mr Meagher informed Mr O’Callaghan that he wanted him to succeed; and
(s)in Mr Meagher’s own words, Mr O’Callaghan was shell-shocked – Sergeant Nallo stated that Mr O’Callaghan “appeared upset from the meeting”.[48]
[47] Ibid.
[48] T12B, folio 123.
I understand that, thereafter, Mr O’Callaghan had no further input to the under-performance PDA directed by Mr Meagher.
Shortly after the meeting, Sergeant Nallo had a discussion with Mr O’Callaghan about the meeting and the reasons for his poor performance.
On 4 August 2016, Mr O’Callaghan consulted Dr Brown who noted –
Presents very distressed, with older brother for support, re an ambush that occurred, in a professional sense, at 6pm two days ago at work – see paperwork that Stuart has agreeably furnished to me – was criticised in a humiliating and unprecedented way for all sorts of trivial issues. “Held it together during the session” but teary and emotional afterwards.
…[49]
[Original emphasis].
[49] Exhibit 4, page 18 (marked 40).
On 22 August 2016, Dr Brown diagnosed “Major Depression with PTSD features, including anxiety and hypervigilance”, and certified that Mr O’Callaghan was unfit for work.[50] On Dr Brown’s referral Mr O’Callaghan consulted Dr White, a psychiatrist on 27 August 2016. Dr White diagnosed an “Adjustment Disorder with Anxiety”.[51]
[50] T4, folio 18.
[51] T13, folio 138.
On 29 September 2016, Mr O’Callaghan’s 2016 PDA was amended to include the following comment by Sergeant Nallo–
Formal Counselling Record 8914 entered into PDA by Sgt. Nallo on behalf/request of the OIC, Stn Sgt Chris Meagher.[52]
[52] Exhibit 2, PDA March 2016-February 2017, page 2 (marked 8).
As I understand the evidence, the Formal Counselling Record referred to the result of the meeting called by Mr Meagher on 2 August 2016 and subsequently recorded in Mr O’Callaghan’s PDA by Sergeant Nallo, namely –

Remedial Objectives

Start Date

End Date

- For a period of six to nine months the member would not work with any members junior to him.

- When on duty, and on active patrol, he was to work with a senior member only.

- All decisions and workplace submissions were to be checked and vetted by the senior member before Quality Assurance from the Supervisor.

- Three monthly assessments would be conducted by the Supervisor with advice to the OIC.

- Recommendation that he make himself known to staff from Learning and Development in relation to study material to help him during this process. The OIC would assist in this recommendation.[53]

2/08/2016

2/02/2017

[53] Ibid, page 1 (marked 7).

As can be seen, the Remedial Objectives depart very substantially from the original 2016 PDA Sergeant Nallo signed in March 2016.
On 24 March 2017, Dr Oelrichs, a consultant psychiatrist, produced a report for the AFP, having examined Mr O’Callaghan. She reported a diagnosis of “Adjustment disorder with anxiety and depression, now in partial remission” and assessed that Mr O’Callaghan was “not medically fit to resume duties in ACT policing”.[54]
[54] T5, folios 31 and 32.
On 26 September 2017, Mr O’Callaghan claimed compensation for an Adjustment Disorder, which he first noticed on 2 August 2016 at 6.10pm.[55]
[55] T6E, folio 48.
On 29 October 2017, Dr White produced a report for Comcare, in which he reported his diagnosis of “Adjustment Disorder with Anxiety due to the stresses at work in the Australian Federal Police” and observed:
I considered that his anxiety was largely related to the situation at work and that the most effective way of resolving has [sic] his anxiety would be to resolve the difficulties at work[56]
[56] T13, folio 138.
On 20 November 2017, Dr Brown and Dr Saboisky, a consultant psychiatrist, each (separately) produced a report for Comcare.[57] Dr Brown reported –
As a direct consequence of work place mismanagement over a long period of time, and specifically an ‘ambush’ which was orchestrated by his managers at the conclusion of his shift of work on 02 Aug 2016, Stuart has an Adjustment Disorder with Anxiety anxiety [sic] features.[58]
[57] T14; T15.
[58] T14, folio 141.
In Dr Saboisky’s opinion, Mr O’Callaghan was suffering from “adjustment disorder with mixed emotional features, anxiety, depression and anger” about which he said -
He reported that there were times in the past when he was distressed about negative evaluation by his employers. The meeting on 02.08.2016 led to severe symptomatology. Prior to that, the symptoms did not warrant medical treatment nor did they lead to any time off work and therefore do not constitute a condition.
…
The primary cause of his adjustment disorder is the negative evaluation by his superior, Sergeant Maher [sic] on 02.08.2016.”[59]
[59] T15, folios 149 and 150.
On 29 November 2017, Comcare decided to refuse Mr O’Callaghan’s compensation claim on the basis that his “condition is as a result of reasonable administrative action undertaken in a reasonable manner” and, consequently, he was not entitled to compensation in respect of it.
Mr O’Callaghan requested reconsideration of this decision.
On 6 April 2018, Comcare issued a reconsideration decision affirming the original determination.
On 31 May 2018, Mr O’Callaghan applied for review by the Tribunal.
ISSUES
The key issues arising for determination are:
(a)Did Mr O’Callaghan suffer from a ‘disease’ for the purposes of s 5A(1) and s 5B of the Act?
(b)If so, was the ‘disease’ suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, such that the exclusionary proviso in s 5A(1) of the Act applies?
DISEASE
I was informed by the parties that there is no dispute Mr O’Callaghan suffered from a ‘disease’.
In my assessment, this is correct.
For the purposes of s 5A(1) of the Act, ‘disease’ is given meaning by s 5B.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
The medical evidence before the Tribunal, includes reports by three psychiatrists, Dr Saboisky, Dr White and Dr Oelrichs, as well as reports and clinical notes by Dr Brown. None of these doctors were called to give oral evidence. That being so, it is necessary to carefully examine their written materials in order to elicit a proper understanding.
The evidence of Dr Brown, Dr Oelrichs, Dr White and Dr Saboisky clearly establishes that Mr O’Callaghan suffered from an ‘ailment’ (as defined in s 4(1) of the Act) in the form of an adjustment disorder with mixed emotional features, including anxiety. It is equally clear that this ailment was significantly contributed to by Mr O’Callaghan’s employment. The present evidence does not establish any other contributing factor. On the evidence of Dr Brown, Dr Oelrichs, Dr White and Dr Saboisky, Mr O’Callaghan’s ailment arose over a period in 2016. Dr Oelrichs referred to “Mr O’Callaghan’s heightened response in August 2016, which had been in a build up prior to this time”.[60] Dr Saboisky’s evidence is that, prior to 2 August 2016, Mr O’Callaghan’s symptoms did not warrant medical treatment and they did not amount to an adjustment disorder or a condition at that time.[61]
[60] T5, folio 32.
[61] T15, folio 149.
Relying on Dr Saboisky’s evidence, Comcare asserts that Mr O’Callaghan’s Adjustment Disorder was caused by the negative evaluation of Mr Meagher on 2 August 2016, rather than by any other circumstance or incident of the meeting he was required to attend at the end of his shift on that day. In Comcare’s submission, Dr Brown’s evidence should be given little weight on grounds that his evidence is partisan and contains shrill assertions.
At first blush, Dr Saboisky’s report that the “primary cause” of Mr O’Callaghan’s adjustment disorder is “the negative evaluation by his superior” on 2 August 2016 seems clear enough. On close examination, however, what the doctor meant by negative evaluation is not at all clear. It is possible he is referring to Mr Meagher’s negative assessment of Mr O’Callaghan’s performance. The difficulty with this interpretation is that Mr Meagher informed Mr O’Callaghan of his negative assessment during the meeting on 2 August 2016 – in that context, the negative assessment, per se, and Mr Meagher’s communication of it to Mr O’Callaghan are not easily separated. To my mind, it is more probable that Dr Saboisky is referring to what occurred during the 2 August 2016 meeting as a negative evaluation. This is consistent with Dr Saboisky’s reference to “times in the past when he was distressed about negative evaluation by his employer”[62] and the description of the meeting Dr Saboisky set out in the Work History section of his report –
One to two weeks later he was called into Sergeant Maher’s (sic) office and Sergeant Nallo was also present. Sergeant Maher (sic) told him that he was not happy with his death report. He gave him a copy of the report. Mr O’Callaghan had a cursory look and then allegedly made an allegation that the report was not appropriately done because he was worried about getting home. He queried him about the initial draft rather than the final draft. He also complained to him about the way he interrupted him in the Muster Room. He then spoke of putting him on a performance development appraisal process. He said he would have three monthly performance development appraisals and if he failed two then he would be discharged from the force.
He noted that the door to the office was open and that several other police officers had come to the door on separate occasions presumably because they could hear what was going on. He was given strict instructions that he was to do his reading outside of work, that he was not able to mentor junior officers, that a senior constable had to vet all his work and that he would work alternatively a week on the road and a week in the front office.[63]
[62] T15, folio 149.
[63] T15, folio 148.
When viewed in this context, it is probable that Dr Saboisky’s reference to negative evaluation includes Mr Meagher’s negative assessment of Mr O’Callaghan’s performance as well as the manner in which this was communicated to Mr O’Callaghan and related counselling was conducted during the meeting on 2 August 2016. In that regard, it is probable that the incidents and circumstances of the meeting Dr Saboisky reported are factors he considered relevant when attributing medical causation of Mr O’Callaghan’s adjustment disorder to Mr Meagher’s negative evaluation.
Dr White reported that he was first consulted by Mr O’Callaghan on 27 August 2016 and diagnosed an adjustment disorder that he attributed to stresses at work.[64] On close examination of Dr White’s report, it appears that the stresses at work include: -
his supervisors are very difficult and he feels bullied and stressed. There were a sequence of incidents where he felt poorly supported, directed and poorly instructed by his supervisors.
…
He had been told that his paperwork was not up to standard.[65]
[64] T13, folio 136.
[65] Ibid, folios 136 and 137.
Dr Oelrichs examined Mr O’Callaghan on 9 March 2017 and diagnosed an adjustment disorder she attributed to “experiences, which he has reported in his role in ACT Policing”.[66] On close examination of the doctor’s report, it appears that these experiences include the following matters –
He reported after the two-year gap and when he was returning to work at Tuggeranong, there had been several instances which had concerned him and he reported a last meeting in August had “been the straw that broke the camel’s back”. He reported there had been circumstances where he had dealings with a “level-headed” station sergeant during this time, where the work was good, but he reported there had been two changes, which had impacted greatly on him.
He reported particularly in the area of operational support services, he had trouble with two sergeants there. He also reported this was complicated as there has been one OSS, who “hated me”, “they wouldn’t talk to me, they’d yell”, “Who did this?”, “I’d know it was me.
…
He reported that there had been an incident in his workplace, where there were two pieces of minor damage to a police car. He reported that it was recorded that he got two negligent driving tickets; however, this was later downgraded to a caution.
This had distressed him at the time. He discussed this with Dr Brown. However, he had seen Dr Brown after a meeting in August 2016. He reported at that time, it was recommended he have some time off and Dr Brown referred him to the psychiatrist.[67]
[66] T5, folio 31.
[67] Ibid, folios 27 and 28.
Dr Brown treated Mr O’Callaghan over many years and reported to Comcare that the adjustment disorder was:
As a direct consequence of work place mismanagement over a long period of time, and specifically an ‘ambush’ which was orchestrated by his managers at the conclusion of his shift of work on 02 Aug 2016…
…
As outlined in the text above, this injury was sustained as a result of a number of episodes of mismanagement by his AFP managers over time, but the kyey [sic] event was what I can only interpret as an ambush by his supervisor which was unheralded, and during which he was unsupported, after his shift ended on 2 Aug 2017 [sic]. He has described this in his submission to you, but I understand that, in the guise of professional counselling and mentorship, he was belittled and humiliated for a significant period of time by his manager with another senior officer in the room who did not support Stuart. By Stuart’s account, the tone of the meeting was completely professionally inappropriate, and Stuart was very emotionally traumatised by it. Furthermore, it was the ‘final straw’ with respect to the escalation of his mistrust of his management to manage and mentor him appropriately….[68]
[68] T14, folios 141 and 142.
Considering the content of Dr Brown’s report and clinical notes, his evidence is no more than one might expect from a treating general practitioner. I reject Comcare’s submission that his evidence is partisan and contains shrill assertions to the extent that it should be discounted. In my assessment, his evidence is not properly described in such terms.
Considering the medical evidence, on balance, it is probable that the adjustment disorder diagnosed by Dr Brown, Dr Oelrichs, Dr White and Dr Saboisky is causally related to the incidents and circumstances of the meeting Mr O’Callaghan was required to attend with Sergeant Nallo and Mr Meagher on 2 August 2016. More specifically, adopting the language Dr Saboisky used, I am satisfied that Mr Meagher’s negative evaluation was the primary cause of Mr O’Callaghan’s adjustment disorder. For the avoidance of doubt, the negative evaluation refers to the incidents and circumstances of the meeting on 2 August 2016, including Mr Meagher’s negative assessment of Mr O’Callaghan’s performance, the circumstances in which this was communicated to Mr O’Callaghan, the manner in which related counselling was conducted by Mr Meagher and the way in which Mr Meagher acted to place Mr O’Callaghan on an under-performing PDA during the meeting.
Having regard to the incidents and duration of Mr O’Callaghan’s employment as a police officer by the AFP and other relevant circumstances, including the changes in his family circumstances in 2015 to which Dr White and Dr Oelrichs refer,[69] I am satisfied that Mr O’Callaghan’s adjustment disorder with mixed emotional features was significantly contributed to by his employment, such that it is a ‘disease’ within the terms of s 5B(1) of the Act.
[69] T13, folio 137; T5, folio 27.
Furthermore, considering the medical evidence, it is probable that, but for the negative evaluation and related actions taken by Mr Meagher on 2 August 2016, Mr O’Callaghan’s adjustment disorder would not have arisen as a ‘disease’.[70]
[70] Comcare v Martin [2016] HCA 43 at [45]; Lim v Comcare [2017] FCAFC 64 at [37]-[42].
REASONABLE ADMINISTRATIVE ACTION EXCLUSION
Mr O’Callaghan asserts that the meeting on 2 August 2016 was not reasonable administrative action taken in a reasonable manner in respect of his employment. He argues that the meeting was a surprise for which he was not prepared – it occurred without any alleged under-performance being foreshadowed, and without any real notice, at least sufficient for him to properly prepare. Furthermore, in his submission the meeting was conducted in a manner that lacked proper process and was abjectly unfair, well outside the policy governing such matters set out in the Guide – he was taken by surprise; he was not allowed to properly consult documents; he could not confer with a support person; his response to allegations of under-performance were not taken into account or reasonably considered; and he could not influence the result of the meeting as this had already been decided by Mr Meagher. For these reasons, in Mr O’Callaghan’s submission, the exclusionary proviso does not apply and he is entitled to compensation in respect of the injury he sustained.
Comcare disagrees. In Comcare’s submission the 2 August 2016 meeting and associated administrative actions are reasonable administrative action taken in respect of Mr O’Callaghan’s employment, being administrative action that was reasonable to address perceived deficiencies in his performance. Furthermore, Comcare asserts that the meeting was undertaken in a manner that was reasonable in the particular circumstances. Comcare argues that it was open to Mr O’Callaghan’s superior officers to react swiftly to under-performance that posed a risk to the community and to Mr O’Callaghan, especially in circumstances where under-performance had been an active concern for some time. Reasonableness in this context, so the argument goes, requires an objective assessment of the particular circumstances and it does not require exemplary procedure or perfect conduct - it is not to the point that the manner in which the action was taken might be improved upon.
In Comcare’s submission, the meeting and related actions are within the meaning of reasonable administrative action taken in a reasonable manner in respect of Mr O’Callaghan’s employment, such that the exclusionary proviso is enlivened with respect to his ‘disease’. Furthermore, Comcare asserts that, had the action not been taken, it is probable the ‘disease’ would not have arisen. For this reason, Comcare maintains Mr O’Callaghan is not entitled to compensation for the injury claimed.
The matter is to be decided under s 5A of the Act –
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
As can be seen, if Mr O’Callaghan’s adjustment disorder ‘disease’ was the result of reasonable administrative action taken in a reasonable manner in respect of his employment it will not be taken to be an ‘injury’ for the purposes of the Act. The test of causality to be applied is the same as that applying in respect of a ‘disease’.[71]
[71] Comcare v Martin [2016] HCA 43 at [43]-[45].
When applying s 5A(1), necessarily, the phrase ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ should be considered as a whole. It is, nevertheless, appropriate to consider each of the elements it contains.
The first consideration is whether the 2 August 2016 meeting, the negative evaluation or any related actions are within the meaning of ‘reasonable administrative action’, as inclusively defined.
Considering the evidence, four key features of the 2 August 2016 meeting rise to prominence. Firstly, the meeting was called by Mr Meagher, Mr O’Callaghan’s Manager One Removed under the Procedures,[72] and orchestrated by Sergeant Nallo, his Principal Team Leader. Secondly, in the context of Mr Meagher’s perception of persistent underperformance by Mr O’Callaghan, the meeting was a direct response to performance issues Sergeant Wall raised with Mr Meagher the previous day, concerning an investigation and subsequent report to the Coroner by Mr O’Callaghan in respect of a death. Thirdly, the purpose of the meeting was to address Mr Meagher’s perception of Mr O’Callaghan’s persistent under-performance by counselling him and placing him on an under-performing PDA. And fourthly, in so doing, Mr Meagher explained the prospective content of the under-performing PDA and the effect on Mr O’Callaghan’s employment.
[72] Exhibit 3, page 2.

On these facts, I am satisfied that the meeting involved administrative action that was particular to Mr O’Callaghan. Firstly, the meeting appears to have involved elements of performance appraisal in the context of counselling action taken by Mr Meagher – Mr Meagher gave a negative assessment of Mr O’Callaghan’s performance. This was administrative action directed to Mr O’Callaghan, individually. Secondly, while aspects of the meeting may have traversed operational issues of a kind described by Gray, Rares and Tracey JJ in Commonwealth Bank of Australia v Reeve (CBA v Reeve),[73] relating to the way in which Mr O’Callaghan carried out his work duties, this was done in the context of Mr Meagher counselling Mr O’Callaghan. Thirdly, actions relating to Mr O’Callaghan’s PDA and, in particular, Mr Meagher’s decision to place him on an under-performing PDA, were also traversed in the meeting. Action of this latter kind was also particular to Mr O’Callaghan and it did not have an operational character, rather it was administrative action taken under the Procedures.
[73] [2012] FCAFC 21 per Gray J at [31]-[33] and Rares and Tracey JJ at [52]-[63].
This is not a case in which there is difficulty distinguishing operational action from administrative action for the purposes of s 5A(1). It is apposite to recall what Rares and Tracey JJ said on this subject in CBA v Reeve at [74] -
… It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action” in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.
I am satisfied that Mr Meagher’s negative appraisal and related counselling of Mr O’Callaghan on 2 August 2016, and placing him on an under-performing PDA, are within the meaning of ‘administrative action’.
The next steps are to determine if the ‘administrative action’ was ‘reasonable administrative action’ taken in respect of Mr O’Callaghan’s employment. Mr Meagher took action under the Managing underperformance provisions of the Procedures and the Guide. These instruments, and the annual PDA agreements, are components of the contractual arrangements governing Mr O’Callaghan’s employment.
While aspects of the 2 August 2016 meeting may have been directed to the way in which Mr O’Callaghan carried out his employment duties, and the standard of his work, this occurred in the context of administrative action taken under the Procedures to manage perceived under-performance. This action was taken in respect of Mr O’Callaghan’s PDA and his employment as a senior constable. In that regard, to use the language employed by Rares and Tracey JJ in CBA v Reeve at [60], it was directed to his employment as a factum –
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties...
In this case, I am satisfied that the ‘administrative action’ taken by Mr Meagher was in respect of Mr O’Callaghan’s employment.
The reasonableness of the ‘administrative action’, itself, pivots to a large extent on Mr Meagher’s perception that Mr O’Callaghan had been under-performing for some time. I accept that this perception was derived from information he was allegedly given by Sergeant Nallo and Sergeant Pithkethly, and it was brought into sharp focus by the email he received from Sergeant Wall. It was on this basis that Mr Meagher decided to move swiftly to address his negative appraisal of Mr O’Callaghan’s performance. I am satisfied that it was reasonable for him to do so in the particular circumstances.
The PDA system established under the Procedures and the Guide clearly allows for meetings between a manager or a team leader and an employee to address under-performance issues, and sets out the various mechanisms and processes available for this purpose. Within this framework, “Managing underperformance in a timely and relevant fashion is an essential aspect of any manager and/or team leader role”.[74] In these circumstances, arguably at least, Mr Meagher was obliged to take action under the Procedures to address Mr O’Callaghan’s perceived under-performance.
[74] Exhibit 3, page 8.
Comcare asserts that the meeting was ‘formal counselling’. Certainly, Mr Meagher referred to it in those terms and it is recorded as such in the information Sergeant Nallo subsequently added to Mr O’Callaghan’s PDA. When regard is had to the Managing underperformance provisions set out in clause 16 of the Procedures and clause 7 of the Guide, it can be seen that –
Formal counselling generally takes place when there have been a [sic] serious performance issues and/or no improvement from informal counselling and feedback.
This stage involves the introduction of a remedial objective and a documented action plan…
Formal counselling can be commenced at any stage during the PDA cycle.[75]
[75] Ibid, pages 19 and 20.
That being so, it was open for Mr Meagher to initiate formal counselling under the Procedures in order to address issues with Mr O’Callaghan’s performance that he considered to be serious or lacking improvement. In the circumstances Mr Meagher faced at the time, having received Sergeant Wall’s email on 1 August 2016, at least, formal counselling action was objectively reasonable.
In a case such as this, it is not helpful or necessary to dissect or disentangle the various elements of the 2 August 2016 meeting according to the kinds of reasonable administrative action set out in s 5A(2) of the Act. Clearly enough, the meeting involved elements of performance appraisal, counselling and perhaps even disciplinary action. The examples of ‘reasonable administrative action’ set out in s 5A(2) are not exhaustive,[76] and the section does not qualify the meaning of ‘reasonable administrative action’ in s 5A(1).[77] If, as here, administrative action was taken in the context of, or in close proximity to, operational discussions that also occurred in the meeting, it is necessary to consider the extent to which, if at all, contextual factors bear upon the reasonableness of the action taken.[78] I am satisfied, at the minimum, the ‘administrative action’ taken was performance counselling and a related decision to place Mr O’Callaghan on an under-performing PDA. To my mind this action is within the meaning of ‘reasonable administrative action’ even though the taking of the action may have been somewhat entangled in discussions of a different kind, relating to performance appraisal and operational matters.
[76] Long v Comcare [2016] FCA 737 at [30].
[77] Drinkwater v Comcare [2018] FCAFC 62 at [76].
[78] Lim v Comcare [2019] FCAFC 104 at [59].
I am therefore satisfied that the administrative action Mr Meagher took on 2 August 2016 is ‘reasonable administrative action’ taken in respect of Mr O’Callaghan’s employment for the purposes of s 5A(1).
The next consideration is whether the ‘reasonable administrative action’ was ‘taken in a reasonable manner’.
When considering the manner in which administrative action has been taken, reasonableness is a quality intrinsically tied to an objective assessment of context and circumstance. It is apposite here to repeat the oft quoted passage of Lander J’s judgement in Keen v Workers Rehabilitation and Compensation Corporation[79], which was approved of by Murphy J (with whom Siopis J agreed) in Martin v Comcare[80] at [134] -
In Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42 at 47-48 Lander J said, and I respectfully agree:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.[81]
[79] [1998] SASC 7056.
[80] [2015] FCAFC 169.
[81] See also Comcare v Martinez (No 2) [2013] FCA 439 at [83].
This was not upset by the High Court in subsequent proceedings.[82]
[82] Comcare v Martin [2016] HCA 43.
Robertson J considered these issues in the recent case of Comcare v Stewart.[83] His Honour set out relevant considerations (key elements of which are set out in the following extracts for ease of understanding) and posed two questions -
62. … That is to say, whether or not an administrative action was undertaken reasonably is a question of fact to be assessed objectively, taking into account the attributes and circumstances, including the emotional state of the employee concerned…
64. … [Comcare v Martin [2016] HCA 43] at [46] does not require that no regard is to be paid to the effect which the administrative action has, and was observed by the person taking the administrative action, to have on the employee. It was put that it would be impermissible for the Tribunal to look only at the impact on the employee but this did not mean that the Tribunal could not look at that impact.
68. … the issue of whether reasonable administrative action was “taken in a reasonable manner” in respect of the employee’s employment was a question of objective fact, related to the specific conduct involved, was to be assessed without the benefit of hindsight, and did not involve asking whether the action could have been done more reasonably. …
70. Did the Tribunal in substance identify the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacted upon the worker, the circumstances in which the administrative action was implemented, and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer? Did the Tribunal in substance decide whether what it assumed for this purpose to be reasonable administrative action was taken in a reasonable manner by approaching it as a question of objective fact, to be determined against the ordinary standards of reasonable employers in all the circumstances of the case?[84]
[83] [2019] FCA 365.
[84] Comcare v Stewart [2019] FCA 365 at [62], [64], [68] and [70].
The ‘reasonable administrative action’ taken in this case was performance appraisal and counselling, and the related action of placing Mr O’Callaghan on an under-performing PDA. These actions were taken by Mr Meagher in the meeting he required Mr O’Callaghan to attend with Sergeant Nallo on 2 August 2016.
In order to objectively assess whether these actions were undertaken in a reasonable manner, it is necessary to consider the context and the circumstances, as well as all other relevant matters.
As I have said, the requirement for the ‘administrative action’ derives from Mr Meagher’s perception that Mr O’Callaghan was not performing his work to the required standard over a period of months, from January 2016. His perception arose from information purportedly provided by Sergeant Nallo and Sergeant Pithkethly over several months, and from Sergeant Wall’s 1 August 2016 email in respect of a substandard death report Mr O’Callaghan prepared.
By his own account, Mr Meagher relied on information provided to him by Sergeant Nallo and Sergeant Pithkethly. On his evidence, such information should have been recorded in official diaries or the PROMIS system, at least. Mr Meagher’s evidence is that he did not keep any notes or records on discussions with Sergeant Nallo or Sergeant Pithkethly regarding Mr O’Callaghan’s performance – he relied on them to do so. There are no such records made by Sergeant Nallo and Sergeant Pithkethly in the materials before the Tribunal.
Mr Meagher’s evidence of Sergeant Nallo and Sergeant Pithkethly making regular reports about Mr O’Callaghan’s performance is uncorroborated. Mr Meagher and Comcare did not produce any contemporaneous records to support his evidence. Sergeant Nallo’s statement does not expressly confirm that he kept Mr Meagher apprised of Mr O’Callaghan’s performance and remedial actions or interventions taken to address this from February 2016 to the 2 August 2016 meeting, although it may be inferred that he did so. As I have said, Sergeant Nallo’s statement is imprecise, largely unsupported and untested.
Nevertheless, I will proceed on the basis that Mr Meagher’s evidence is correct and he was provided with regular reports in respect of Mr O’Callaghan’s performance.
On Mr Meagher’s evidence (with some support from Sergeant Nallo’s statement), Mr O’Callaghan’s poor performance from January 2016 related to:
(a)the quality and timeliness of investigations he undertook and briefs he prepared;
(b)the timeliness of his PROMIS records;
(c)two motor vehicle accidents in which he was involved in 2015; and
(d)issues of distracting conduct (talking).
It is likely that Mr Meagher’s concern about such matters was drawn into sharp focus on 1 August 2016, when he received the email from Sergeant Wall about a substandard death report Mr O’Callaghan prepared. Mr Meagher explained that he was horrified by this information.
On Mr Meagher’s evidence, in the context of persistent under-performance by Mr O’Callaghan, he considered it necessary to take swift action in respect of the matters raised by Sergeant Wall in order to minimise any risk to the community and to Mr O’Callaghan. It was for these reasons he considered it necessary to take prompt administrative action in respect of Mr O’Callaghan’s perceived under-performance and call a meeting with him and Sergeant Nallo on 2 August 2016 for this purpose. This was reasonable in the particular circumstances.
On Mr Meagher’s evidence, it was on the morning of 2 August 2016 that he asked Sergeant Nallo to arrange the meeting with Mr O’Callaghan later that day, after his shift. If this is correct, Mr O’Callaghan could have been given a number of hours’ notice of the meeting and its purpose, during which he might have been able to prepare. For reasons that only Sergeant Nallo could explain, this was not done, and Mr O’Callaghan was given only a few minutes notice of the meeting by Sergeant Nallo. Even though Sergeant Nallo could have acted differently, this is not to the point when determining if the actions were taken in a reasonable manner.
In calling the meeting, Mr Meagher did not ascertain if Sergeant Nallo or Sergeant Pithkethly (or anyone else) had documented any previous issues, incidents, discussions or actions relating to Mr O’Callaghan’s performance – he proceeded on the understanding that such matters had been properly addressed with Mr O’Callaghan. While it may be argued that Mr Meagher could or should have proceeded differently and ascertained for himself what had previously been done in respect of Mr O’Callaghan’s performance, the test of reasonableness does not require perfection. It is not to the point that improvements could have been made or, with the benefit of hindsight, that different actions could have been undertaken.
At this juncture, it is important to note that even though Sergeant Nallo raised issues of timeliness, governance and procedure with Mr O’Callaghan on three occasions, at least, prior to 2 August 2016, Mr O’Callaghan’s perception at the time was that no issue of ‘under-performance’ had been raised in reference to his PDA or the Procedures.
There is a clear difference between pointing out an aspect of work, such as a brief that requires further work or polish or tardy record-keeping in the PROMIS system for example, and raising an issue of under-performance in the context of the Procedures and the PDA system. Under-performance has a particular place in the contractual arrangements that formed Mr O’Callaghan’s employment. This is given form and force in the framework of provisions, expectations and sanctions the Procedures and the Guide set out. It is of fundamental importance to the engagement and operation of these provisions, that an employee to whom they apply is expressly made aware of that occurrence in respect of alleged under-performance. This is also of fundamental importance to the reasonableness of related actions that may be undertaken.
For a supervisor to informally discuss with a subordinate the need for improvement in some aspect of his or her work is one thing; for the supervisor to put this, however informally, in terms of performance that does not meet the minimum standard required by the subordinate’s PDA, such that persistent lack of improvement might have consequences for the subordinate’s employment, is another thing. The former, as in Mr O’Callaghan’s case, may leave the employee in a state of ignorance or uncertainty about under-performance in the context of his or her employment, whereas the latter leaves no room for ignorance or doubt. While it may be that a sharply focused, clear-minded, perceptive employee might quickly discern the import implied by the former, it should not be assumed that all employees possess such attributes – one does not require a vivid imagination to conceive of circumstances in which an employee’s mind might be distracted or dulled.
In the period leading up to 2 August 2016, as Dr Brown and Dr White reported, Mr O’Callaghan perceived difficulties with certain superior officers in the Tuggeranong Police Station that he described as bullying, about which he subsequently complained. Whether his perception about these matters was rightly or wrongly formed is not to the point, and I make no finding about that. The complaints Mr O’Callaghan made in respect of Sergeant Pithkethly and his supervisors point to the likelihood that issues were being raised about aspects of Mr O’Callaghan’s work from July 2016. It is likely that concerns of this kind may have coloured Mr O’Callaghan’s perception from early July 2016. It does not follow, however, and it is not established as a probability, that matters of this kind were expressly raised with him as under-performance with regard to his PDA or the Procedures.
It can be accepted that Mr O’Callaghan considered the matters Mr Meagher raised in January 2016, relating to the motor vehicle accidents in which Mr O’Callaghan was involved in 2015, to have been dealt with and closed at that time. These were dealt with in the final PDA report for the 2015 PDA cycle, in February 2016.
On the present evidence, notwithstanding Mr Meagher’s evidence and the statement of Sergeant Nallo, it is probable that Mr O’Callaghan first expressly became aware of under-performance with regard to his 2016 PDA in the meeting with Mr Meagher on 2 August 2016.

There are a number of things to say about the manner in which this meeting and related administrative action was undertaken:
(a)Mr O’Callaghan was given no meaningful notice of the meeting or its purpose. He was given only a few minutes notice by Sergeant Nallo, who informed him Mr Meagher wanted to talk to him about the death report, once his shift had come to an end on 2 August 2016. He had no time to prepare or to marshal his thoughts around relevant matters. He was not provided with an agenda for the meeting or an explanation why he was required to meet with his Manager One Removed (the Tuggeranong Police Station Office in Charge) and his Principal Team Leader at short notice.
(b)In these circumstances, Mr O’Callaghan was not offered the opportunity to have a support person of his choosing attend the meeting with him. Mr Meagher gave evidence that Sergeant Nallo attended the meeting in that role. This is clearly not the case – Mr Meagher asked Sergeant Nallo to attend to take notes; at no time before or during the meeting was Mr O’Callaghan given the opportunity to ask anybody to attend. When pressed on this point, Mr Meagher conceded that this was an error on his part.
(c)The meeting was conducted in Mr Meagher’s office with the door open. Mr Meagher explained that his office was small and he deliberately left the door open to make the meeting less threatening. On his evidence the room was in a quiet part of the Tuggeranong Station, off a corridor with little passing traffic at that time of day. Nevertheless, one officer came to the door during the meeting and, on Mr O’Callaghan’s evidence, anyone passing the office along the corridor may have heard what was being said.
(d)In the course of the meeting, Mr Meagher expressly denied Mr O’Callaghan the opportunity to refer to any relevant documents, namely the death report that Sergeant Wall considered to be sub-standard. I note that Mr Meagher handed Mr O’Callaghan a copy of the death report at one point early in the meeting, but quickly retrieved this for his own reference. Thereafter, Mr Meagher referred directly to this document during the meeting, but denied Mr O’Callaghan any further opportunity to do so. Mr O’Callaghan’s evidence is that he produced a number of drafts of this report, having initially submitted a draft which he knew required more work. I accept that he was not given an opportunity to adduce such documents, or any documents whatsoever, for Mr Meagher to consider. Under cross-examination, Mr Meagher accepted that this was remiss of him.
(e)By his own account, Mr Meagher had decided to place Mr O’Callaghan on an under-performing PDA ahead of the meeting, without hearing anything Mr O’Callaghan had to say by way of explanation. He gave evidence that nothing Mr O’Callaghan could say would have changed the result. From this it is quite clear that Mr Meagher had settled his decision and closed his mind before the meeting, regardless of any explanation Mr O’Callaghan might provide or further evidence he might adduce or seek to rely upon.
(f)The content of the meeting took Mr O’Callaghan by surprise. Mr Meagher proceeded on the assumption that Sergeant Nallo had expressly raised and informally counselled Mr O’Callaghan in respect of under-performance relating to PROMIS records and the quality of briefs, at least, over the preceding months. The present evidence does not establish that his assumption was correct. Nevertheless, Mr Meagher did not make an informed assessment of this before calling the meeting, counselling Mr O’Callaghan and deciding to place him on an under-performing PDA. I accept that Mr Meagher was not alive to the possibility that the meeting, and the performance counselling and related under-performing PDA decision, might take Mr O’Callaghan by surprise.
(g)Mr Meagher’s decision to place Mr O’Callaghan on an under-performing PDA during the meeting had a direct and immediate effect on Mr O’Callaghan’s role as a senior constable in the Tuggeranong Station – he was no longer permitted to mentor junior members; his operational work was to be undertaken with a superior officer; he was to undertake operational and administrative work in the Station work on a week on, week off basis; he was to undertake courses off line/after hours; Mr Meagher would draft PDA feedback; and this would be subject to quarterly monthly review. This is stark contrast to the Critical Objectives set out in the PDA Sergeant Nallo signed on 25 March 2016. It is not established that Mr Meagher took account of any effect such a change might have on Mr O’Callaghan when he called the meeting or in the course of delivering counselling and informing Mr O’Callaghan of his decision to place him on an under-performing PDA. I note that Mr Meagher also informed Mr O’Callaghan of the possible adverse effect on his employment should his performance not improve.
(h)Mr Meagher agreed that Mr O’Callaghan appeared to be shell-shocked in the meeting. This is supported by Sergeant Nallo’s evidence that Mr O’Callaghan appeared upset by the meeting.[85] There is no evidence that Mr Meagher took this into account in the conduct of the meeting, even though it could be reasonably expected that the performance counselling and the decision to place him on an under-performing PDA might be upsetting or cause him distress. Considering the evidence of Mr O’Callaghan and Mr Meagher, it is probable that Mr Meagher confronted Mr O’Callaghan with under-performance in a robust, forthright and forceful manner; it is probable, on their evidence, that voices were raised, but not to the degree of shouting. While some of the language Mr Meagher used in his statement verges on the pejorative: “the allegedly experienced member”, for example,[86] it is not established that Mr Meagher used pejorative language during his counselling of Mr O’Callaghan.
(i)Mr Meagher’s evidence is that the meeting was conducted in a supportive and collegiate manner, and Mr O’Callaghan was informed that he could respond to the terms of the under-performing PDA, which would commence once the terms had been agreed. In my assessment of the available evidence, the meeting and the counselling given to Mr O’Callaghan was not conducted in a collegiate manner – it was conducted in the manner of a senior manager (the Officer in Charge of the Tuggeranong Station) counselling a subordinate officer two levels beneath him (a senior constable). To my mind, as Mr O’Callaghan asserts, there was a very clear imbalance of power between Mr Meagher, Sergeant Nallo (who did not play an active role in the meeting) and Mr O’Callaghan. Whatever Mr Meagher’s intention may have been regarding the way in which the counselling was conducted and the terms of the under-performing PDA were communicated, it was an interaction in which Mr O’Callaghan was the most junior officer present, for which he was not prepared. Furthermore, I am not persuaded that the terms of the under-performing PDA Mr Meagher decided were presented to Mr O’Callaghan as negotiable and subject to his agreement. The weight of evidence points to a contrary conclusion.
(j)At the conclusion of the meeting, Mr Meagher informed Mr O’Callaghan that he wanted him to succeed and would support him to do so.
[85] T12B, folio 123.
[86] T12B, folio 113.
Considering these matters, I am satisfied that, while some of these actions are entirely reasonable, others are not. With regard to the reasonable administrative actions taken, the performance appraisal and counselling, and the action of placing Mr O’Callaghan on an under-performing PDA, and applying the test Robertson J set out in Comcare v Stewart, objectively, the manner in which these actions were taken is not consistent with ‘the ordinary standards of reasonable employers in all the circumstances of the case’[87].
[87] Comcare v Stewart [2019] FCA 365 at [70].
I have reached this conclusion without being unduly diverted by matters of procedural fairness. While procedural fairness may be a factor to take into account when determining if the test of ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ is satisfied, procedural fairness must be carefully considered in the context of the terms, conditions and laws governing the particular employment and the circumstances in which the ‘reasonable administrative action’ is taken. In this case, even though the manner in which the meeting was conducted by Mr Meagher was not procedurally fair, it is but one consideration and, applying the ordinary standards of reasonable employers, it is not determinative.
I think it can be accepted that ordinary standards of reasonable employers might include many of the elements set out in Step 3 in clause 7 of the Guide. This is not to suggest that, in order for reasonable administrative action to be taken in a reasonable manner in the circumstances of this case, the elements of the Procedures and the Guide must be applied or adhered to. The Procedures and the Guide serve a different purpose than that arising under s 5A of the Act.
Applying ordinary standards of reasonable employers, an employer might be expected to provide notice to an under-performing employee who is to undergo performance counselling, such that the employee might understand what is to occur and the reason for it, and have a reasonable time, proportionate to the circumstances, to prepare themselves. To my mind, providing only a few minutes notice, without properly informing Mr O’Callaghan of the true nature and reason for the performance counselling he was to undergo is not consistent with taking administrative action in a reasonable manner in the particular circumstances of this case.
Applying ordinary standards of reasonable employers, an employer might be expected to comprehend and take into account the likely effect of under-performance counselling and the imposition of under-performance management arrangements on an employee. In this context, an employer acting reasonably might ascertain any relevant actions taken previously in respect of the employee’s under-performance. Furthermore, an employer might be expected to act in a manner that does not increase any risk of harm to the employee and provide him or her with an opportunity to ask a support person to attend. Mr O’Callaghan was not provided with such an opportunity and it is not established that the risk of harm to Mr O’Callaghan was taken into account, even though, in Mr Meagher’s words, he was visibly shell-shocked. To my mind these matters, too, are not consistent with taking administrative action in a reasonable manner in the particular circumstances.
Even in circumstances where swift action is required, the ordinary standards of reasonable employers might include presenting an under-performing employee with evidence of their under-performance and measures taken to address it, and being open to hear the employee’s point of view, and any explanation, evidence or circumstances that bear on his or her performance, such that this information could be taken into account when determining appropriate action. This did not occur in Mr O’Callaghan’s case. Mr Meagher decided the outcome of the meeting without hearing or being open to be swayed by anything Mr O’Callaghan might say or offer by way of explanation. It is probable that Mr Meagher assessed Mr O’Callaghan’s performance on a draft death report which had subsequently been corrected and rectified – the present evidence does not establish that he considered the final death report, or that Mr O’Callaghan was given an opportunity to provide it. In the circumstances of this case, the failure to do these things is not consistent with taking administrative action in a reasonable manner.
While any one of these matters, alone, may not be sufficient to establish that the administrative actions were not taken in a reasonable manner in all the circumstances of this case, the same cannot be said when they are taken together.
On balance, I am reasonably satisfied that the ‘reasonable administrative action’ Mr Meagher took in respect of Mr O’Callaghan’s employment on 2 August 2016 was not taken in a reasonable manner.
For this reason, the exclusionary provision in s 5A(1) is not enlivened. From this it follows that the ‘disease’ Mr O’Callaghan suffered is an ‘injury’ for the purposes of s 5A(1)(a) in respect of which he is entitled to compensation.
That being so, the decision under review will be set aside.
The evidence clearly establishes, and I do not comprehend there to be any dispute in these circumstances, that Mr O’Callaghan’s ‘injury’ resulted in impairment and incapacity for work, such that Comcare is liable to pay compensation under s 14 of the Act. In order to determine the quantum of any such compensation, subject to meritorious claim, the matter must be remitted to Comcare.
While the parties have not been heard on matters relating to the date of the ‘injury’ under s 7 of the Act, it is quite clear that Mr O’Callaghan first sought medical treatment from Dr Brown on 4 August 2016 and Dr Brown subsequently certified that he was incapacitated for work from 3 August 2016.[88] For the purposes of the Act, that is the date of the ‘injury’.
[88] T4, folio 19.
DECISION
The decision under review is set aside and in place thereof the Tribunal decides that Mr O’Callaghan sustained an injury for which Comcare is liable to pay compensation from 3 August 2016.
The matter is remitted to Comcare to determine the amount of compensation that is payable, subject to claim.
The parties have not been heard as to costs. Written submissions addressing this subject may be given to the Tribunal within 14 days of this decision. Should no such submissions be made, Comcare will be ordered to pay Mr O’Callaghan’s reasonable costs in these proceedings under s 67(8) of the Act, as agreed or taxed.

I certify that the preceding 167 (one hundred and sixty seven) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.

........................................................................
Associate

Dated: 29 October 2019

Date(s) of hearing:
8 April 2019, 16 September 2019 – 17 September 2019.

Solicitors for the Applicant

Counsel for the Applicant

Solicitors for Respondent:

Counsel for Respondent:

Mr David Healey, David Healey Solicitors

Mr Steven Whybrow

Mr Luke Woolley, Sparke Helmore

Mr Charles Clark

[2019] AATA 4378

29 October 2019

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Procedural Fairness

Causation

Remedies

Appeal

Costs