PKZS and Comcare (Compensation)
[2025] ARTA 4
•6 January 2025
PKZS and Comcare (Compensation) [2025] ARTA 4 (6 January 2025)
Applicant/s: PKZS
Respondent: Comcare
Tribunal Number: 2022/8343
2024/2632
Tribunal:Senior Member S Webb
Place:Canberra
Date:6 January 2025
Decision:
The decision under review in application 2022/8343 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation under s 14 of the SRC Act in respect of the adjustment disorder injury PKZS suffered on 7 April 2020.
The decision under review in application 2024/2632 is affirmed.
…………[SGD]………………
Senior Member S Webb
WORKERS’ COMPENSATION – psychological injury claim – alleged breaches of the APS Code of Conduct - Code of Conduct investigation – disease – administrative action not undertaken in a reasonable manner – exclusion from ‘injury’ not made out – liability to pay compensation – decision set aside and substituted
WORKERS’ COMPENSATION – aggravation injury claim – increased stress and symptoms – interview in the course of investigation of alleged breaches of APS Code of Conduct – disease – testing of allegations in fact finding investigation – conduct of interview – reasonable despite possibility of improvement – aggravation resulted from reasonable administrative action undertaken in a reasonable manner in respect of applicant’s employment – exclusion from ‘injury’ applies – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Public Service Act 1999 (Cth), ss 10A, 13, 14, 15
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14, 67
Cases
Beasley and Comcare [2012] AATA 411
Comcare v M [2016] HCA 43
Lee and Comcare [2012] AATA 867
Lim v Comcare [2017] FCAFC 64
Lynch and Comcare [2010] AATA 38
Melder and Comcare [2013] AATA 534
Secondary Materials
Australian Public Service (APS) Code of Conduct
Australian Public Service Commissioner’s Directions 2016
Handling Misconduct: A human resource manager’s guide
Procedures for Determining Breaches of the APS Code of Conduct
Statement of Reasons
As the factual circumstances in this case involve matters of family violence and mental illness, the Applicant will not be identified by name. She will be referred to as PKZS.
PKZS was employed in a Commonwealth government department (Department). PKZS’s marriage broke down. PKZS experienced a reactive mental disorder and was unable to work for a time. PKZS became friendly with and was supported by a work supervisor. For the purposes of these reasons, it is not necessary to identify the supervisor and, for privacy reasons, I will refer to him as ‘Mr Y’. This raised suspicions in the Department about an undeclared personal relationship between PKZS and Mr Y and a related conflict of interest from which PKZS sought to benefit. PKZS was subjected to a formal investigation. PKZS’s mental health was affected by notice of this and by a formal interview which was subsequently conducted. PKZS claimed compensation for injury arising from these circumstances. Comcare decided to refuse the claims by primary determination and on reconsideration. PKZS lodged an application for review of these decisions by the Tribunal.[1]
[1] The applications for review were lodged with the Administrative Appeals Tribunal (AAT) under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and, as of 14 October 2024, the AAT has been replaced by the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, from 14 October 2024, the ART has jurisdiction to conduct the reviews under the Administrative Review Tribunal Act 2024 (ART Act).
Consequently, there are two applications before the Tribunal. The first (application 2022/8343) is in respect of Comcare’s 24 August 2024 reconsideration decision[2] to affirm its primary determination on 17 June 2022.[3] By this determination Comcare denied liability for PKZS’s compensation claim in respect of an alleged injury on 10 April 2020[4] she attributed to notice of an investigation into her conduct in respect of alleged breaches of the Australian Public Service (APS) Code of Conduct (Investigation) (the notice claim).
[2] Exhibit 1, T1.1.
[3] Ibid, T10.
[4] Ibid, T3.
The second application (application 2024/2632) is in respect of Comcare’s reconsideration decision on 24 April 2024[5] to affirm its primary determination on 20 February 2024[6] to deny liability for PKZS’s compensation claim in respect of an alleged injury on 10 September 2020[7] when PKZS was formally interviewed in the course of the Investigation (the interview claim).
[5] Exhibit 2, T1.1.
[6] Ibid, T15.
[7] Ibid, T14.
In the course of the proceedings in the Tribunal, the parties agreed PKZS’s mental disorder was contributed to by circumstances in PKZS’s employment and that the contribution was to a significant degree. As this is supported by and it is consistent with the materials before the Tribunal, I am satisfied it is appropriate to make findings and to proceed on the basis agreed by the parties.
This notwithstanding, it is Comcare’s case that the claimed injuries are excluded as they resulted from reasonable administrative action undertaken in a reasonable manner in respect of PKZS’s employment. If this is so, no compensation is payable.
The claims are to be decided under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The key provision is set out in s 5A:
(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.
Comcare’s liability to pay compensation arises under s 14 in respect of an ‘injury’ which results in impairment or incapacity for work, with specific compensation being subject to determination under relevant sections in Part IV of the SRC Act.
Facts
On 29 March 2016, PKZS commenced employment by the Department as an Executive Level 2 Director.
In or about 2017 and 2018, PKZS experienced domestic violence. In June 2018, she left the family home with her 4 children and sought refuge.[8]
[8] T11, 254.
From in or about mid-2018, Mr Y, an Assistant Secretary in the Department, was PKZS’s supervisor.
PKZS’s evidence is that she informed Mr Y, a Departmental Director colleague, ‘Ms M’, and a male officer in the Department’s Human Resource Branch of her difficult personal circumstances and the domestic violence, as she required time off work. PKZS explained she expressly instructed that the information disclosed should only be shared if there was a need to know. No relevant Departmental records of this disclosure and the leave PKZS took from her employment have been given to the Tribunal. The evidence given by Loretta Cachia (an Assistant Director in the Department’s Human Resources Branch from June 2019 to April 2022) suggests that sensitive private information of this kind would have been closely managed by senior officers in the Human Resources Branch and she did not find reference to it when she reviewed PKZS’s personnel file in March 2020. This notwithstanding, PKZS’s evidence on this point is not contested. It is not controverted by other evidence, and it can be accepted as accurate.
In or about September 2018, PKZS was approved to return to full time hours of work, ending a previous temporary arrangement for her to work on a part-time basis. As I understand it, the part-time arrangement was required to enable PKZS to deal with legal issues and to care for her youngest daughter who has a disability. On resuming full-time hours, PKZS worked a proportion of hours remotely.
On 1 February 2019, PKZS consulted Dr Claire Perkins (treating general practitioner) who prescribed Lexapro and noted:
Left family violence situation 6 months ago
…
Some hypervigilance and PTSD symptoms
DAASS21 – D1 (normal) A13 (ex severe S 9 (mild)
…
Reason for visit:
PTSD[9]
[9] Exhibit 2, 208-209.
On 10 August 2019, PKZS consulted Dr Perkins who noted:
…
2. Needs antoehr script for Lexapro
Has found it helpful
Has court again in September
Hopefully things will be resolved after that
Reason for visit:
Anxiety [10]
[10] Ibid, 212
On 12 August 2019, Mr Y commenced a period of leave and Ms M acted in the role of PKZS’s supervisor.
On 12 September 2019, PKZS consulted Dr Perkins who noted:
…
2. Court has happened
Now stress levels are starting to ease
…[11]
[11] Ibid, 211
On 23 September 2019, Mr Y was suspended from duties as he was under investigation for possible breaches of the APS Code of Conduct relating to bullying and harassment.[12]
[12] Exhibit 3, 5.
From September 2019 to December 2019, Ms Cachia coordinated the Code of Conduct investigation in respect of Mr Y. In the course of the investigation, Departmental officers were interviewed and referred to PKZS’s conduct relating to “an alleged undeclared personal relationship between [PKZS and Mr Y] and alleged benefits [PKZS] was receiving”.[13]
[13] Exhibit 12, [5].
Forensic investigations were undertaken into PKZS’s working hours and IT records. As a full-time employee, PKZS was working 4-hour days, 5 days per week in Departmental offices with the balance of hours worked at home. An initial review concluded that “definitive ICT Forensic data was not available to confirm whether she had made up her full working hours remotely”[14].
[14] Exhibit 3, 5.
Ms Cachia “conferred with Human Resources Branch management, including the Director of the Performance and Wellbeing Team, the Head of Human resources and the Chief Operating Officer”[15], and an Investigation Plan was prepared[16].
[15] Exhibit 12, [6].
[16] Exhibit 3, 5-11.
On 24 February 2020, Ms Cachia and an Assistant Secretary in the Department’s Human Resources Branch, ‘Ms H’, prepared a Proposed strategy of current misconduct investigation Minute, setting out recommendations for approval by Katherine Jones, Deputy Secretary, Business Enabling Services[17]. This document was passed through Iain Scott, First Assistant Secretary, Corporate Services, and it recommended Ms Jones “Sign the notice of suspected misconduct investigation [letter for PKZS]” and “Sign the instrument at Attachment D appointing Ms Jennifer Wyborn of Clayton Utz as lead investigator for the suspected misconduct investigation of [PKZS]”[18].
[17] Exhibit 12, [11]; Exhibit 3, 1-4.
[18] Exhibit 3, 1.
In or about March 2020, the Department adopted protective measures in response to the Covid-19 pandemic, under which officers, including PKZS and Ms Cachia, worked remotely.
On 31 March 2020, Ms Jones approved the investigation strategy and signed the Notice of Suspected Breaches of the APS Code of Conduct (Notice)[19] and the Instrument selecting Clayton Utz with Ms Wyborn as lead investigator[20].
[19] Exhibit 1, T6.1; Exhibit 2, T6.1.
[20] Exhibit 7.
On 7 April 2020, Ms Cachia contacted PKZS by telephone and informed her of the Investigation:
… I called [PKZS] and advised that I wished to discuss a sensitive matter that involved her. I asked if [PKZS] had a moment to talk privately, as [PKZS] was working from home at this time due to the COVID-19 pandemic. I was also working from home at this time… I recall gently outlining the Department’s intention to commence a formal Code of Conduct investigation into allegations against her, and that I would shortly be sending a letter to her from the delegate which provided further information.
I advised [PKZS] that I would allow her some time to consider the correspondence, and asked her to call me when she felt ready to discuss next steps. We also discussed the support available to her such as the Employee Assistance Program…[21]
[21] Exhibit 3, [16]-[17].
Subsequently on 7 April 2020, Ms Cachia sent PKZS an email attaching the Notice. In the email, Ms Cachia offered to meet with PKZS to discuss any questions or concerns and stated:
I also encourage you to reach out to your manager for workplace support, noting that [Ms M] has not been informed regarding this matter. You are also welcome to invite a support person to attend any meetings of discussions we may hold if preferred.[22]
[22] Exhibit 12, Attachment C.
The Notice included the following information:
Allegations and supporting documentation have been provided to me concerning your conduct which is suspected of breaching the APS Code of Conduct (the Code) set out in section 13 of the Public Service Act 1999 (PS Act).
The purpose of this letter is to advise you that you are under investigation for possible breaches of the Code.
…
Suspected breaches
Specifically, it is alleged that while in your role as Director… you:
1) failed to comply with the department’s expectations under the PS Act to take all reasonable steps to avoid and disclose a conflict of interest (real or apparent) in connection with your employment, in line with the Disclosing and managing conflict of interest guidelines. Specifically, by failing to disclose a personal relationship with your … immediate supervisor; and
2) improperly used your alleged status (personal relationship with [Mr Y]) to gain or seek to gain, a benefit or advantage for yourself and other persons in connection to your APS employment. Specifically by:
a. misusing an approved flexible working arrangement where it is alleged that you worked fewer hours than the 37.5 hours required of you as a full time employee while maintaining a full-time status and receiving a salary commensurate with working full-time hours;
b. not complying with Finance’s Smoke free workplace policy which states that employees may not smoke while they are on duty (apart from official meal breaks) or when representing the department in any capacity; and
c. influencing the recruitment delegate, to employ and subsequently promote [redacted]… who is allegedly in a personal relationship with your daughter.
…
Confidentiality
To ensure the integrity of this process and that the matter is treated with the appropriate confidentiality, I am formally directing you to not communicate in any manner about any aspect of this letter, or this process with anyone other than the following:
- Your nominated support person
- Your union and/or legal representative
- The Employee Assistance Program (BAP) and any medical practitioner
- Myself and others directly involved within the HR branch.
In particular, you are directed to not contact or attempt to contact or communicate about this matter with any person you believe is or may be a witness or be involved in the suspected misconduct.
In communicating about the matter with any of the permitted people, you must still comply with your obligations under the Privacy Act 1988 and exercise appropriate judgement.
If there is any other person you consider it appropriate and necessary to communicate about this matter with, please send me their relevant details by email and I will consider granting permission for you to do so.
This formal direction will remain in place until I advise you otherwise. Any requests you have for this direction to be amended may be sent to me for consideration through email. Please be aware that failure to comply with this direction may result in disciplinary action, such as proceedings under the Code.
…[23]
[23] Exhibit 2, 39,40,41.
After receiving Ms Cachia’s email and the Notice on 7 April 2020, PKZS consulted Dr Perkins, who issued a medical certificate, certifying PKZS was unfit for work.[24] The doctor noted:
Being investigated for something at work
Not coping very well
Encouraged to contact her psychologist
Had been going well up until this letter
Personal life has been difficult recently[25]
[24] Exhibit 1, T13, 259.
[25] Exhibit 2, 213.
On 9 April 2020, PKZS called Ms Cachia, who noted:
…
[PKZS] advised that she was not OK and that the situation had been difficult for her to process. She referred to a history of family violence and stated this process has brought the experience back for her, where she feel she is reliving it…
[PKZS] said she is on medication through her GP and sees her GP regularly. She is also in receipt of private counselling and feels that as of two weeks ago, she had recovered…
…
[PKZS] said she felty sick about the allegations and stated that the claims were not true concerning an inappropriate relationship with her supervisor… [PKZS] said that given her past she is psychologically and emotionally incapable of having another relationship. [PKZS] said the [Mr Y] has been a tremendous support for her over the past 18 months and it’s been horrifying for her to know what her colleagues have thought of her. She said it’s been shameful and embarrassing how things have gone so wrong – that there has been a grave misunderstanding. [PKZS] said everyone is aware of her past and questioned what peoples motivations were in making those claims.
…
I explained that the matter being looked into are the claims she has engaged in an undeclared personal relationship with her supervisor and the suspected benefits she has gained from this relationship. We are not disputing the fact that she has had extreme personal difficulties as her history is known to HR and the department – family violence and carer for disabled child…
…
We also talked about the option for [PKZS] to have a support person present during the discussion or interviews. [PKZS] said she did not want to invite someone to be privy to her personal information… [PKZS] did not want to disclose her sensitive information to another person as the process she said, would be embarrassing.[26]
[26] Exhibit 12, Attachment D.
On 16 April 2020, PKZS consulted Dr Perkins, who noted:
Still feeling very low
Upset at the idea that she would have to face people who have accused her of things
Feels sick at the idea of going to work
Has not contacted psychologist – encouraged strongly to do this[27]
[27] Exhibit 1, 211.
In successive medical certificates, PKZS’s treating doctors certified she was unfit for work thereafter until 3 December 2021.[28]
[28] Exhibit 2, 289-310; Exhibit 1, 211-219 refer.
On 25 August 2020, Dr Perkins certified PKZS was unfit for work “however is fit to speak to the investigator if required”.[29]
[29] Exhibit 2, 295; Exhibit 1, 213 refers.
On 10 September 2020, PKZS was formally interviewed by Ms Wyborn and Charisse Matthews for the purposes of the Code of Conduct investigation. The interview was conducted remotely. By choice, PKZS attended without a support person.
On 30 October 2020, Dr Emma Adams, a consultant psychiatrist, produced a report for the Department. The doctor reported PKZS “developed a reaction of anxiety symptoms after allegations were made about her at work” and diagnosed an adjustment disorder with symptoms of depression and anxiety, although it was Dr Adams opinion PKZS had capacity to participate in the Investigation.[30]
[30] Exhibit 1, T6.10, 186, 187; Exhibit 2, 189, 190.
On 21 September 2020, PKZS consulted Dr Ke Chun Tsai, who noted:
History:
here for ongoing medical certificate.
workplace issues last 6 months.
had an interview with investigatory recently, was very stressful, now awaiting outcome.
feeling sadder the longer this is going on for.
potentially resigning.
is seeing psychologist
Reason for visit:
Stress
Work problems[31]
[31] Exhibit 2, 216.
On 12 March 2021, Ms Wyborn produced a report containing factual findings and recommendations. Ms Wyborn found that:
(a)the allegation PKZS failed to take all reasonable steps to avoid and disclose a conflict of interest in connection with her employment by failing to disclose a personal relationship with Mr Y, her immediate supervisor, was substantiated;
(b)the allegation PKZS improperly used her personal relationship with Mr Y to gain a benefit by:
(i)misusing an approved flexible working arrangement by working less than the 37.5 hours required of her as a full-time employee while retaining full-time status and receiving a salary commensurate with working full-time hours was not substantiated; and
(ii)not complying with the Department’s Smoke free workplace policy which states that employees may not smoke while they are on duty was substantiated; and
(iii)influencing the recruitment delegate to employ and subsequently promote a person who is allegedly in a personal relationship with PKZS’s daughter was not substantiated.[32]
[32] Exhibit 5, 242.
On 28 April 2021, PKZS was sent a Preliminary Determination on Breach of the APS Code of Conduct with an opportunity to comment within 21 days.[33]
[33] Exhibit 1, T6.7.
On 28 May 2021, PKZS’s lawyer requested further information and the time for comment was extended to 2 June 2021, on which date submissions for PKZS were lodged.[34]
[34] Ibid, T6.8, 170.
On 23 June 2021, PKZS was sent a Final Determination on Breach of the APS Code of Conduct. The decision-maker accepted Ms Wyborn’s factual findings and decided PKZS engaged in conduct which breached the APS Code of Conduct.[35] The matter was referred for determination of an appropriate sanction.
[35] Ibid, 172-173
On 22 July 2021, the Sanction Delegate issued a Preliminary Determination of Sanction for Breach of the APS Code of Conduct, providing 21 days for PKZS to respond.[36]
[36] Ibid, T6.9.
On 24 November 2021, by voluntary redundancy, PKZS’s employment by the Department came to an end.
On 22 March 2022, PKZS lodged the notice claim in respect of an adjustment disorder with anxiety and depression which was first noticed at 11.30am on 10 April 2020, for which medical treatment was first obtained from Dr Perkins on 10 April 2020.[37] In the claim, PKZS described the mechanism of injury in the following terms:
… Working from home during COVID shutdown.
… I had been experiencing a stressful personal situation and had agreed hours at work negotiated with previous supervisor and current supervisor, Colleagues within my team were not aware of my personal situation however felt as though I was being treated “special”. Over a period of some months rumours began in the workplace resulting in a formal investigation by HR. Investigation commenced in April 2020 and was resolved in November 2021.[38]
[37] Exhibit 1, T3, 15, 17.
[38] Ibid.
On 17 June 2022, Comcare determined to refuse the claim.[39]
[39] Exhibit 1, T10
On 12 July 2022, PKZS requested reconsideration of this determination.[40]
[40] Ibid, T11.
On 24 August 2022, Comcare issued a reviewable reconsideration decision, affirming its original determination to refuse the claim.[41]
[41] Ibid, T1.1.
On 12 October 2022, PKZS lodged an application for review of this decision by the AAT.[42]
[42] Ibid, T1.
On 31 May 2023, Dr Antonella Ventura, a consultant psychiatrist, produced a report for Comcare.[43] The doctor reported:
… [PKZS] presents with a history consistent with a historical diagnosis of adjustment disorder with depression and anxiety which is now in remission.
[PKZS] started to develop the adjustment disorder as a direct result of being notified of an investigation into her conduct in March 2020. She told me that her symptoms deteriorated in August 2020 after the interview with the investigator and resolved at the end of the investigation, when she decided to retire in January 2022.[44]
…
[PKZS] no longer suffers from a psychiatric condition.[45]
[43] Exhibit 11.
[44] Ibid, 6.
[45] Ibid, 8
On 5 December 2023, PKZS lodged a further compensation claim in respect of “psychological injuries” first noticed at approximately 10.30am on 10 September 2020, for which medical treatment was first obtained from Dr Perkins on 21 September 2020.[46] PKZS provided the following information in respect of the mechanism of the alleged injury:
… Was under review for alleged interpersonal/romantic relationship.
… While speaking with the investigators, a lot of probing questions and underhand comments were made about my personal life, including my experiences with DV and other extenuating circumstances.[47]
[46] Exhibit 2, 273-277.
[47] Ibid, 275.
On 20 February 2024, Comcare issued a determination refusing the claim.[48]
[48] Exhibit 2, 281-285.
On 25 March 2024, PKZS’s lawyer requested reconsideration of this determination.[49]
[49] Ibid, 287.
On 24 April 2024, Comcare issued a reconsideration decision to affirm the primary determination refusing the claim.[50]
[50] Ibid, 9-15.
On 24 April 2024, PKZS lodged an application for review of this decision by the AAT.[51]
[51] Ibid, 1-8.
The notice claim
Following Comcare v Martin (Comcare v Martin)[52], the parties agree that, without PKZS being given the Notice of Suspected Breaches of the APS Code of Conduct (Notice)[53] on 7 April 2020, the employment would not have contributed to a significant degree to PKZS’s mental ailment at that time.
[52] [2016] HCA 43, per French CJ, Bell, Gageler, Keane and Nettle JJ at [45].
[53] Exhibit 1, T6.1; Exhibit 2, T6.1.
This is consistent with the evidence of Dr Perkins[54] and Dr Ventura[55] that PKZS suffered an adjustment disorder with depression and anxiety (Disorder) which was significantly contributed to by the commencement and notification of the Code of Conduct investigation.
[54] Exhibit 1, T9.
[55] Exhibit 11, page 9.
More specifically, I am satisfied PKZS’s Disorder resulted from:
(c)PKZS being informed by Ms Cachia in a telephone conversation on 7 April 2020 of the decision to commence a formal Code of Conduct investigation; and
(d)later on that day, PKZS being given formal Notice of suspected breaches relating to a possible conflict of interest arising from failure to disclose a personal relationship with PKZS’s supervisor (‘Mr Y’) and allegedly seeking to gain benefit or advantage from that relationship.
On the evidence of Dr Perkins, PKZS first attended on 7 April 2020, not 10 April 2020 as specified in the compensation claim form. I accept this is correct. On this point, a broad, generous and practical interpretation of the claim should be made.[56]
[56] Abrahams v Comcare [2006] FCA 1829 at [18].
PKZS submits it was not reasonable for the Department to subject her to the Investigation. She alleges the evidence of a personal relationship between herself and Mr Y was purely circumstantial and very weak at the time and it was particularly thin in respect of the period in which Mr Y was her supervisor. She argues the Department’s response was disproportionate and unreasonable in the circumstances.
PKZS asserts the manner in which the Department gave Notice of the investigation was also unreasonable, particularly as the Department knew of personal difficulties she experienced in the context of domestic violence which left her in a vulnerable state. In PKZS’s submission, the Department took no steps to mitigate the obvious and apparent risk of injury she might suffer on being informed about the Investigation. She argues this is reinforced by the failure to give PKZS an opportunity to invite a support person to assist, even remotely. PKZS contends the usual notice and support procedures were not followed in the early stages of the Covid-19 pandemic and it was not reasonable for the Department to inform her of the Investigation while she was isolating at home, without support, as a result of Departmental and public health policies.
PKZS alleges the adverse effects of being given notice in such circumstances, under enforced isolation at home, were increased by the confidentiality direction set out in the Notice, which further increased her isolation. She asserts the terms of the confidentiality direction were not reasonable and it was not reasonable to include such a direction in the Notice in circumstances where she was isolating at home in compliance with the Covid-19 arrangements.
PKZS asserts it was not reasonable for the Department to use the word ‘suspected’ in the Notice. She argues ‘suspected’ suggests pre-judgment and this is not consistent with applicable policies and procedures which require decision-makers to be and to appear to be independent and unbiased. In PKZS’s submission, the Department was not authorised to delegate the Investigation to a contractor, Clayton Utz, and doing so without authority was not reasonable.
For these reasons, PKZS contends the manner in which she was informed and given Notice of the Investigation was not reasonable and the exclusion in s 5A(1) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) does not apply. It follows, she argues, the adjustment disorder ‘disease’ is an ‘injury’ for the purposes of the SRC Act which caused impairment and incapacity for work in respect of which Comcare is liable to pay compensation.
Comcare asserts the decision to undertake a formal Investigation was reasonable administrative action in respect of PKZS’s employment in circumstances where serious breaches of the Code by senior Departmental officers were suspected. Comcare alleges evidence available at the time pointed to a personal relationship between PKZS and Mr Y over an extended period from March 2019. Comcare argues there was sufficient evidence from the period while Mr Y was PKZS’s supervisor to justify commencing a Code of Conduct investigation, including witness ‘sightings’, emails, evidence of Ms M (PKZS’s supervisor from 12 August 2019), allegations PKZS obtained preferential treatment from Mr Y, and subsequent events which suggested a pre-existing personal relationship. Comcare alleges commencing the Investigation was not irrational, absurd or ridiculous[57] and the manner in which it was commenced was tolerable and fair[58].
[57] Re Lynch and Comcare [2010] AATA 38.
[58] Re Beasley and Comcare [2012] AATA 411.
In Comcare’s submission, information and Notice of the Investigation was given to PKZS by Ms Cachia in a reasonable manner and in accordance with usual practice. Comcare asserts it was reasonable for Ms Cachia to inform PKZS of the investigation by telephone before providing the formal Notice by email. It was reasonable and appropriate for Ms Cachia to make initial contact with PKZS to foreshadow the giving of formal Notice, Comcare asserts, as this action was an attempt to protect PKZS’s well-being - PKZS had to be contacted at some point and it was preferable for her to be informed orally before being issued with the formal Notice. Comcare contends that PKZS’s history of trauma was not widely known in the Department’s Human Resources Branch, and Ms Cachia was not aware of PKZS’s history at the time.
Comcare argues action taken in respect of the Investigation does not have to be perfect and the possibility it could have been handled differently or better does not mean the action was unreasonably taken[59]. Comcare relies on the language used in the procedures[60] and the Handling Misconduct guide[61] which were applicable at the time.
[59] Melder and Comcare [2013] AATA 534 at [52]; Lee and Comcare [2012] AATA 867 at [81]; Lim v Comcare [2017] FCAFC 64.
[60] T6.2.
[61] Exhibit 4.
More specifically, Comcare does not consider that use of the word ‘suspected’ rather than ‘alleged’ in the Notice suggests prejudgment or is inconsistent with applicable policy and procedures. Comcare rejects the proposition the Department was not authorised to delegate conduct of the Investigation to Clayton Utz, an external contractor. In Comcare’s submission, the confidentiality information set out in the Notice was reasonable as it did not apply to PKZS’s support person, legal representative, medical practitioner or those involved in the Department’s HR Branch and to permit PKZS to discuss related matters with Mr Y would undermine the integrity of the investigation.
For these reasons, Comcare asserts the Investigation is reasonable administrative action undertaken in a reasonable manner in respect of PKZS’s employment and the exclusion in s 5A(1) of the SRC Act applies in respect of the ‘disease’ she suffered on 7 April 2020.
I do not agree. Even if the decision to commence the Investigation is reasonable administrative action in respect of PKZS’s employment, and this is a matter of dispute, I am not satisfied it was undertaken in a reasonable manner.
The Secretary (and hence the Department) is obliged under s 13(2) and 14(1) of the PS Act to act with care and diligence when dealing with allegations of misconduct in respect of PKZS’s APS employment. So much is consistent with the obligation to provide a flexible and safe workplace in the context of the APS Employment Principles set out in s 10A(1)(e) of the PS Act.
These obligations permeate the directions issued by the APS Commissioner under s 15(6) of the PS Act – relevantly, the Australian Public Service Commissioner’s Directions 2016 (Directions). Section 40 of the Directions states:
An Agency Head must have regard to any relevant standards and guidance issued by the Commissioner if:
(a) an APS employee has engaged in conduct that:
(i)may breach the APS Code of Conduct; or
(ii)…; and
(b) The Agency Head is considering whether to initiate an inquiry under s 15(3) of the [PS] Act.
The relevant standards and guidelines issued by the Commissioner include Handling Misconduct: A human resource manager’s guide (Guide).[62] The Preface to the Guide which was in effect in 2020 states that the document “is designed to support managers to take the most appropriate action at every stage of the misconduct process”.[63]
[62] Exhibits 4 and 13.
[63] Exhibit 4, 2 (974).
The obligations also inform the written procedures for determining breaches of the APS Code of Conduct and any related sanctions Agency Heads are required to establish for the purposes of s 15(3) of the PS Act. Subsection 15(4) requires the procedures must comply with the ‘basic procedural requirements’ set out in the Commissioner’s directions. These are set out in Division 2, Part 5 of the Directions. Section 43 of the Directions is in the following terms:
A determination may not be made in relation to a suspected breach of the Code of Conduct by an APS employee unless reasonable steps have been taken to:
(a) inform the APS employee of:
(i) the details of the suspected breach (including any subsequent variation of those details); and
(ii) the sanctions that may be imposed on the APS employee under subsection 15(1) of the Act; and
(b) give the APS employee a reasonable opportunity to make a statement in relation to the suspected breach.
As can be seen, determination of a suspected breach of the APS Code of Conduct is not authorised unless reasonable steps have been taken to inform the employee of relevant details and possible sanctions, and to give the employee a reasonable opportunity to respond. The ambit of reasonable steps which must be taken turns, in part, on the relevant circumstances of any case. The phrase ‘reasonable steps’ is not given any special meaning or explanation. The meaning can be derived from a plain reading of the language used in the context of the legislative instrument, adopting the ordinary meaning of the words ‘reasonable steps’. There is no reason to read ‘reasonable steps’ narrowly, such that the term would only apply to procedural fairness considerations. The term is sufficiently broad in this context to embrace Code of Conduct obligations in respect of care, diligence, safety in the context of the APS employee’s employment and managing areas of potential risk under s 13(h) of the Directions.
The requirement for reasonable steps to be taken is reflected in s 6.1 of the Procedures for Determining Breaches of the APS Code of Conduct (Procedures) which were issued for the purposes of s 15(3) of the PS Act by a Deputy Secretary of the Department on 3 October 2019.[64] The Procedures do not provide guidance on the nature or extent of reasonable steps which should be taken for the purposes of s 6.1. Nevertheless, under s 7.1 of the Procedures, the ‘breach decision maker’ has discretion to determine “the most appropriate process” for applying the Procedures in any case. Under s 7.2, the “process must be carried out with as little formality and as much expedition as a proper consideration of the matter allows, while still providing procedural fairness to the employee”.
[64] Exhibit 2, 43-47.
A notation to s 2.2 of the Procedures states that the Secretary must have regard to the standards set out in s 5.1.5 to 5.1.9 of the Guide before making a decision to initiate an inquiry under the Procedures. Under s 5.2 of the Guide, where unacceptable behaviour appears to be the result of an underlying medical condition, even though mental illness does not usually determine whether or not behaviour would be investigated as suspected misconduct, it is advisable for the agency to seek medical opinion to establish whether there is a causal link between the behaviour and the employee’s health with reference to the Commissioner’s publication Working Together: Promoting mental health and wellbeing at work.
Under the Procedures, the decision to commence the Investigation required prior consideration of the matters set out in s 5.1.8 of the Guide, which states:
The decision about which approach to use needs to be considered carefully on the facts of each case having regard to the following:
1. How serious is the suspected behaviour? What is the potential impact on public confidence in the integrity of the agency and the APS?
As a general rule, the more serious the alleged behaviour or the greater the potential impact on public confidence in the integrity of the agency and the APS, the more appropriate it is to use misconduct processes.
2. How likely is it that the employee would respond constructively to action under an agency’s performance management framework?
Where an employee has shown, through their behaviour, that they are unlikely to respond constructively to action under the performance management framework, misconduct action may be the most effective way of dealing with the matter.
3. To what extent is the suspected behaviour within the control of the employee?
Unacceptable behaviour by an employee that is within their control, for example wilful refusal to follow lawful and reasonable directions, or a blatant disregard for expected behavioural standards could generally be dealt with as a potential breach of the Code. Behaviour that is either accidental or is as a result of a lack of capability on the employee’s part is often better dealt with through other processes.
The decision-making process which led to commencement of the Investigation is far from clear. On the Investigation Plan in Exhibit 3, it is clear enough the decision was informed by the then ongoing investigation in alleged breaches of the APS Code of Conduct by Mr Y. It was in the course of the investigation into Mr Y’s conduct that the allegations against PKZS arose and it was seen to be imperative that Mr Y and PKZS should be informed of these allegations simultaneously. Options for investigating the allegations against PKZS were “discussed with the delegate on 26 February 2020 and a proposal [to] undertake two parallel investigations (led by Mr Casimir and Ms Wyborn respectively) were made to the delegate on 6 March 2020”.[65] In the undated Minute prepared for the delegate (Katherine Jones, Deputy Secretary), the parallel investigation strategy was recommended for approval, with simultaneous notification of PKZS and Mr Y “so as not to prejudice either investigation”[66], and the imperative for close coordination with Mr Casimir’s investigation in respect of Mr Y was noted.[67]
[65] Exhibit 3, 7.
[66] Ibid, 2.
[67] Ibid, 10
It is in these circumstances the question whether the Investigation is ‘reasonable administrative action’ in respect of PKZS’s APS employment must be considered.
There can be no doubt the Investigation is administrative action taken in respect of PKZS’s APS employment.
The question whether it is reasonable administrative action is to be determined objectively.
The information available to the Department of an undisclosed personal relationship between PKZS and her previous supervisor, Mr Y, and of PKZS improperly benefiting from the relationship, was obtained from allegations raised and unsworn accounts given by PKZS’s work colleagues and Mr Y. Even though there are real questions about the veracity of the information and the manner in which it was obtained, I am satisfied the allegations were of a sufficiently serious nature to justify further inquiry by the Department. This is reinforced by the relative seniority of PKZS and Mr Y at the time.
In respect of planning the proposed Investigation, on the evidence before the Tribunal, it is not established that consideration was given to administrative or performance management options other than commencing a Code of Conduct investigation, as suggested in s 5.8.1 of the Guide. On Ms Cachia’s evidence, in considering the appropriate approach by the Department she conferred with the Department’s Human Resources Branch management, including the Head of Human Resources and the Department’s Chief Operating Officer (COO). Ms Cachia stated:
I, in conference with the Human Resources Branch management and COO, felt that the allegations of an undeclared personal relationship with a Senior Executive Service (SES) employee that may have resulted in preferential treatment would be viewed in a negative way by a reasonable member of the community and could undermine public confidence in the APS. [PKZS’s] role as an EL2 senior employee at the Department also formed part of our consideration…
I was not aware of [PKZS’s] history with family and domestic violence at this time, as I suspect this had only been disclosed at the executive level given concerns around privacy and sensitivity. I recall that [PKZS] had been in regular contact with colleagues in my team, who had been supporting her with the management of an employee engaged through a disability employment pathway program…I was also aware that [PKZS] was a carer for one of her children who had the same disability as the employee she was managing.
We found that a level of formality was required in these circumstances, given [PKZS] was an EL2 in the Department and the allegations were of a serious nature. These included allegations of time fraud, and gaining benefits from an undeclared relationship. We were of the view that it was appropriate to follow the Department’s usual Code of Conduct procedures in a careful and sensitive manner.[68]
…
[68] Exhibit 12, 3.
In her oral evidence, Ms Cachia stated that she reviewed PKZS’s personnel file, case files and payroll records, and found no reference to PKZS’s history of family and domestic violence and any related psychological effects.
It was on this basis, Ms Cachia and Ms H drafted the Proposed strategy of current misconduct investigation document and recommended “an investigation into the allegations of suspected misconduct of [PKZS]”[69].
[69] Ibid.
On Ms Cachia’s evidence, on and before 7 April 2020, she was not aware of PKZS’s history of family and domestic violence and related psychological effects, or any related disclosures to the Department’s HR Branch. She explained information about such matters would likely have been retained and carefully managed at more senior levels in the Department and the HR Branch, and she expected it would only have been disclosed on a ‘need to know’ basis. Ms Cachia’s evidence is that she was informed of these matters after 7 April 2020, in all likelihood by her Branch Manager, Ms H, although she could not recall when or why this occurred.
I am satisfied PKZS informed senior officers of the Department, including her direct supervisors Mr Y and Ms M, as well as officers in the Department’s Human Resources Branch, of her difficult personal circumstances from 2018. It is probable the information she provided to the Department included information about her marital breakdown associated with domestic violence while caring for her four children, including a child with a disability, and the psychological effects she was experiencing. Ms Cachia’s evidence senior officers in the Department’s Human Resources Branch, including Ms H, were aware of PKZS’s history of domestic violence supports this conclusion. On PKZS’s evidence, Mr Y and Ms M were fully aware of her circumstances in their role as PKZS’s direct supervisor in the Department.
On 14 June 2022, Dr Perkins reported:
[PKZS] has a history of post traumatic stress disorder related to domestic violence, however she was able to maintain employment and symptoms of these conditions had resolved prior to the triggering incident [the investigation] at her workplace.
The extent to which, if at all, senior officers in the Department’s Human Resources Branch were aware of the psychological condition PKZS suffered as a result of her experience of domestic violence is not clear. It is probable that Mr Y and Ms M were aware of PKZS’s mental health issues and related vulnerabilities.
The allegations that PKZS had a personal relationship with Mr Y which had not been disclosed, contrary to s 13(7) of the PS Act as well as the Department’s Disclosing and Managing Conflicts of Interest guidelines and the Inappropriate Workplace Behaviour Policy, and that she obtained improper benefits from the relationship, do not void the Secretary’s obligations to act with care and diligence when dealing with allegations of misconduct in respect of PKZS’s APS employment and to take reasonable steps to inform PKZS of the allegations. Consistent with s 13(h) of the Directions, it was the Secretary’s duty and responsibility to identify and manage areas of potential risk when dealing with these matters.
I am satisfied important aspects of PKZS’s case were not considered and taken into account when planning the Investigation, and this failure meant that real risks were not identified or managed. These deficiencies raise questions about the reasonableness of the manner in which the Investigation was undertaken. Nevertheless, it is probable the Investigation is within the ambit of ‘reasonable administrative action’ to address the allegations raised in respect of PKZS’s APS employment.
Whether the Investigation was undertaken in a reasonable manner requires consideration of the planning and implementation of the Investigation and related actions.
PKZS’s history of domestic violence and related mental health issues were disclosed to her supervisors, Mr Y and Ms M, and her history of domestic violence, at least, was disclosed to the Department’s Human Resources Branch. On the available materials, I am satisfied this information was not considered when the plan to conduct the Investigation was prepared and approved. On the information held by the Department at the time, there was a real risk PKZS might react adversely to information about the allegations work colleagues raised against her and the decision to proceed with the Investigation. Ms Cachia acknowledged the information was likely to be confronting for PKZS.
Information about PKZS’s mental health issues consequent to the previous domestic violence was known to her supervisors, at least. On this information, there was a real risk disclosure of information about the allegations and the Investigation might affect PKZS’s mental health. The risk was increased by PKZS’s social isolation under the Covid 19 public health restrictions and the Department’s policy response in March 2020, which required social distancing and employees such as PKZS and Ms Cachia to work from home.
Thus, on the information held by the Department prior to 7 April 2020, real risks to PKZS’s mental health were readily identifiable but these were not identified, considered, taken into account or managed in the planning of the Investigation and the manner in which PKZS was informed about it and the allegations made against her by work colleagues. I am satisfied that proceeding in such a manner was not reasonable.
Even though it is likely Ms H and other senior officers were aware of PKZS’s history of domestic violence, there is no evidence this was taken into account or considered in the preparation of detailed plans relating to the Investigation. Importantly, the information was not disclosed to Ms Cachia prior to her actions on 7 April 2020 to inform PKZS of the Investigations and to give Notice of the allegations. Without this information, Ms Cachia was not in a position to manage the risk PKZS might experience an adverse reaction.
It is Ms Cachia’s evidence that in normal circumstances, she would engage an employee’s manager when conveying sensitive information about an investigation into alleged misconduct, or she would meet with the employee privately and allow the employee to attend with a support person. These processes were not engaged in PKZS’s case.
Ms Cachia explained PKZS’s manager at the time was Ms M, who had a perceived conflict of interest. Ms M was a witness in the investigation into Mr Y’s conduct who had provided information about PKZS’s conduct and the alleged personal relationship between PKZS and Mr Y. Ms Cachia did not consider it appropriate to engage Ms M when informing PKZS of the decision to proceed with the Investigation.
In all likelihood, it was for this reason Ms M was not consulted or involved in the planning of the Investigation. Consequently, Ms M was not invited to provide relevant information which might have informed the process for informing PKZS of the decision to proceed with the Investigation. It is probable Ms M had information about PKZS’s history of domestic violence and was aware of related mental health issues, at least to the extent these affected PKZS’s attendance or performance in her employment when working with or being managed by Ms M.
Ms Cachia explained she did not meet in person with PKZS under the Covid-19 restrictions which were then in effect. On Ms Cachia’s evidence, these circumstances were ‘exceptional’ and PKZS’s case was the first instance of misconduct proceedings in such circumstances. She described it as a ‘test case’. Ms Cachia explained that both she and PKZS were vulnerable in these circumstances. Nevertheless, Ms Cachia did not offer PKZS an opportunity to have a support person assist her with the initial discussion of the Investigation by telephone or when receiving the email containing the Notice.
I am satisfied the planning and communication of the Investigation to PKZS was not undertaken in a reasonable manner.
Comcare’s assertion the taking of administrative action in a reasonable manner does not require perfection for the exclusionary threshold in s 5A(1) of the SRC Act to be met can be accepted. Nonetheless, there is a point at which deficiencies in the undertaking of reasonable administrative action in respect of an employee’s employment fall short of the threshold of what might be considered reasonable in the circumstances of any case. In PKZS’s case, the failings I have discussed above, in combination, do not meet that threshold.
The failure to consider information held by the Department in respect of PKZS’s history of domestic violence and related mental health issues resulted in real risks to PKZS’s mental health not being identified and managed in the exceptional circumstances Ms Cachia described. I am satisfied that the manner in which the Investigation was planned and communicated to PKZS was not reasonable in the particular circumstances.
In particular, it was not reasonable to plan the Investigation without considering the information held by the Department in respect of PKZS’s history of domestic violence and related psychological issues. In these circumstances, it was not reasonable to inform and notify PKZS of the Investigation without, at the minimum, offering for her to receive the information and the Notice with the assistance of a support person, even remotely.
Whether or not PKZS would have suffered from the adjustment disorder had these matters been considered and she been given an opportunity to receive the information and the Notice of the Investigation with a support person is unknown. Nevertheless, but for the taking of the administrative action to inform and give Notice of the Investigation to PKZS, PKZS would likely not have suffered from the adjustment disorder ailment which the parties agree meets the threshold of a ‘disease’.
It follows that the adjustment disorder with symptoms of depression and anxiety PKZS suffered was not the result of reasonable administrative action undertaken in a reasonable manner in connection with her APS employment, and the ‘disease’ she suffered is not excluded as an ‘injury’ for the purposes of s 5A(1) of the SRC Act.
The Interview Claim
PKZS alleges she suffered an aggravation of the adjustment disorder injury when she was interviewed by Ms Wyborn and Ms Matthews on 10 September 2020. She alleges she was ambushed and she had cognitive issues at the time. She argues she was confronted with allegations and accounts of work colleagues which were not reliable. In PKZS’s submission, the questions put to her were unduly aggressive, sceptical and adversarial, and the interviewers were not impartial. PKZS alleges Ms Wyborn and Ms Matthews approached the interview as a cross-examination, which was not appropriate or reasonable. PKZS cavils with the content of allegations put to her and the unfair and adverse inferences the interviewers drew, which she found confronting. She argues the interview was not conducted in a reasonable manner.
Comcare asserts Dr Perkins certified that PKZS was fit to participate in the interview process and she was offered the opportunity to attend with a support person, which she declined. Comcare alleges there was no element of surprise as PKZS was given 320 pages of material[70], including emails and other relevant materials, ahead of the interview. In Comcare’s submission the interview was conducted in a reasonable manner, albeit that confronting allegations needed to be put to PKZS in detail and tested for reasons of procedural fairness. Comcare argues the nature of the misconduct allegations raised questions about PKZS’s personal life and, even though probing into such matters was likely distressing for PKZS, it was a necessary aspect of the Investigation. Comcare alleges, even if the interview could have been done differently or better, it was not conducted in a manner which was not reasonable.
[70] Exhibit1, T6.5, 105-108.
On Dr Ke Chun Tsai’s evidence, PKZS experienced stress as a result of participating in the interview on 10 September 2020.[71] PKZS stated that she “meeting was very stressful, and prompted a worsening of my symptoms of mental illness”.[72] She related so much to Dr Ventura.[73]
[71] Exhibit 2, 216.
[72] Exhibit 10, [11].
[73] Exhibit 11, 4 and 6.
The parties agree that this amounts to an aggravation of PKZS’s psychological ailment which was significantly contributed to by her employment and is a ‘disease’ for the purposes of s 5B of the SRC Act.
There is scant available evidence of probative value addressing the psychological effects on PKZS of the interview conducted on 10 September 2020.
Despite the parties’ agreement, the relevant evidence does not establish the nature or extent of the ‘aggravation’ the parties agree amounts to a ‘disease’. At the highest, on the evidence of Dr Tsai, PKZS experienced increased stress. PKZS alleges she stayed in bed thereafter until October 2020, only arising to care for her children.
I accept PKZS experienced a temporary increase in stress and other symptoms as a result of the interview. To the extent the symptoms of her previously existing and ongoing adjustment disorder were made worse by the interview, I am satisfied this amounts to an ‘aggravation’ (as defined in s 4(1) of the SRC Act) of her ailment to which her employment contributed to a significant degree.
Even though this ‘aggravation’ is a ‘disease’, I am not persuaded it amounts to an ‘injury’ for the purposes of s 5A of the SRC Act.
There is no doubt the Secretary had power to delegate the Investigation to an external investigator, and doing so does not render the Investigation or the interview unreasonable. The Secretary and the investigator were required to act in a manner which was procedurally fair to PKZS. It was for this reason, allegations raised against PKZS needed to be put to her in a detailed manner. Doing so in the interview conducted on 10 September 2020 was not unreasonable. I am satisfied PKZS was given notice of the interview and she was given a bundle of relevant materials ahead of the scheduled interview date. Dr Perkins certified she was “fit to speak to the investigator”, albeit certifying that PKZS continued to be unfit for work as a result of the adjustment disorder injury at the time[74].
[74] Exhibit 1, T13, 265.
I am satisfied the interview was objectively reasonable administrative action taken in respect of PKZS’s APS employment.
To the extent PKZS’s submissions attack the substance or veracity of matters put to her by Ms Wyborn and Ms Matthews and the findings made, it is not for the Tribunal to test the inferences drawn or the findings made.
It was not unreasonable for the interviewers to put to PKZS the content of allegations raised by her work colleagues in respect of her relationship with Mr Y and related conduct in the context of her APS employment.
With regard to PKZS’s assertion the interview was conducted in an unduly adversarial manner, I am satisfied it was reasonable for Ms Wyborn and Ms Matthews to inquire into controversial matters for the purposes of finding relevant facts. Where other employees gave differing versions of alleged events with which PKZS disagreed, it was reasonable for those accounts to be tested to some degree with relevant questions.
The manner in which some details were elicited in interviews with other employees with the use of leading questions is a matter of some concern which goes to the veracity and reliability of such accounts. Concerns of this kind, however, do not mean it was unreasonable for such details to be put squarely to PKZS. This notwithstanding, the manner in which such questions were put could have been improved by providing appropriate contextualisation. For example questions relating to Ms M’s account of PKZS and Mr Y being in a romantic relationship could have been contextualised with information that Ms M was informed of this by Mr Y. The allegation an employee followed PKZS and Mr Y in an Ikea store and observed them to kiss could have been contextualised by reference to the employee’s difficulty accurately remembering precise details.
I accept the tenor of some questions put and the language Ms Wyborn and Ms Matthews used might have appeared somewhat sceptical, adversarial and aggressive to PKZS. It is an unfortunate reality in an interview of this kind that PKZS would be called upon to respond to the allegations of misconduct raised against her which she might find confronting or upsetting. In all likelihood, the detailed content of the allegations may have been confronting and surprising to PKZS, particularly considering her ongoing mental health and cognitive issues which resulted in incapacity for work at the time. Nonetheless, as the plurality made clear in Comcare v Martin at [46], for the purposes of the exclusion in s 5A(1) of the SRC Act, the taking of administrative action is insulated from the need for concern about the psychological effect of the action on the employee as, otherwise, the purpose of the exclusion would be defeated if it was dependant on the subjective psychological drivers of the employee’s reaction.
To my mind, the way in which the interview was conducted could have been improved by taking breaks and by more careful use of language and contextualisation of questions by the interviewers. I am not persuaded, however, that the interview was conducted in a manner which was unreasonable in the circumstances.
For these reasons, to the extent the interview contributed to an aggravation or escalation of PKZS’s adjustment disorder, I am satisfied the aggravation or escalation in symptoms is not an ‘injury’ under s 5A(1) as it resulted from reasonable administrative action undertaken in a reasonable manner in respect of her employment.
Conclusion
PKZS sustained an ‘ailment’ in the form of an adjustment disorder with symptoms of depression and anxiety on 7 April 2020. The ailment was a ‘disease’ for the purposes of s 5B of the SRC Act. It was significantly contributed to by PKZS’s employment, specifically by the manner in which she was given information and Notice of the Investigation into alleged breaches of the APS Code of Conduct.
But for the taking of the administrative action to inform and give Notice of the Investigation to PKZS, PKZS would likely not have suffered from the adjustment disorder ailment which the parties agree meets the threshold of a ‘disease’. Additionally, the failure of decision-makers to consider relevant information held by the Department in respect of PKZS’s history of domestic violence and related mental health issues was not reasonable. Relevant risks were not identified or managed and the Investigation was not planned and communicated to PKZS in a reasonable manner.
The ‘disease’ is an ‘injury’ for the purposes of s 5A of the SRC Act. It is not established the exclusionary proviso in s 5A(1) applies. The ‘disease’ was suffered as a result of reasonable administrative action in respect of her APS employment which was not undertaken in a reasonable manner.
As the ‘injury’ resulted in impairment and incapacity for work on and from 7 April 2020, Comcare is liable to pay compensation in respect of it under Part II of the SRC Act.
Consequently, the decision under review in application 2022/8343 must be set aside and substituted with a decision that Comcare is liable to pay compensation under s 14 of the SRC Act in respect of the adjustment disorder injury PKZS suffered on 7 April 2020.
PKZS experienced stress and some worsening of psychological symptoms as a result of participating in the interview on 10 September 2020 for the purposes of the Investigation. I have found the stress and worsening of symptoms she experienced is not an ‘injury’ as they resulted from reasonable administrative action undertaken in a reasonable manner in respect of her employment. Specifically, while the manner in which the interview was conducted could have been improved, it was conducted in a manner which was reasonable in the circumstances.
From this it follows the decision under review in application 2024/2632 must be affirmed.
It is important to observe that, on the medical evidence, the effects of the ‘injury’ which occurred on 7 April 2020 were present and ongoing when the interview was conducted on 10 September 2020. The exclusion of the aggravating effects of the interview as a separate ‘injury’ does not extinguish Comcare’s liabilities in respect of the 7 April 2020 ‘injury’. Questions of Comcare’s subsequent liability to pay compensation in respect of medical treatment, incapacity for work or impairment resulting from the 7 April 2020 injury under Part II of the SRC Act remain to be determined on the merits, subject to claim.
The parties have not yet been heard on the issue of orders for costs. The parties have liberty to lodge submissions addressing this issue within 14 days. Should no such submissions be made, the Tribunal will order Comcare to pay PKZS’s reasonable costs in application 2022/8343 under s 67(8) of the SRC Act.
Decision
The decision under review in application 2022/8343 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation under s 14 of the SRC Act in respect of the adjustment disorder injury PKZS suffered on 7 April 2020.
The decision under review in application 2024/2632 is affirmed.
I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Webb.
...................[SGD]....................................................
Tribunal Officer
Dated: 6 January 2025
Date(s) of hearing: | 11–12 November 2024 |
| Counsel for the Applicant: Applicant’s Representative: | Andrew Schofield Baker Deane & Nutt Lawyers |
| Counsel for the Respondent: Solicitors for the Respondent: | Kate Weir Australian Government Solicitor |
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